§15.4 - Defenses

• Jurisdiction: Washington

§15.4 DEFENSES

CERCLA provides a number of defenses and limitations to NRD actions, including statutes of limitation, acts of God or war, damages incurred as a result of the acts or omissions of third parties, damages resulting from federally permitted releases, and damages and releases occurring wholly prior to CERCLAs enactment. Damages resulting from releases of recycled oil or registered pesticides are also exempt. Finally, the statute bars double recovery for NRD. Each limitation or defense is discussed in turn below.

(1) Statute of limitations

CERCLA contains five separate sections relating to the statute of limitations for NRD actions, as set out below.

(a) Actions against PRPs

Trustees may bring NRD actions against PRPs pursuant to the authority of CERCLA §113(g)(1), 42 U.S.C. §9613(g)(1), which establishes a three-year statute of limitations following the later of (1) discovery of the loss and its connection with the release in question or (2) promulgation of regulations under 42 U.S.C. §9651(c). However, for facilities listed on the NPL, federal facilities, or a vessel or facility where a remedial action is otherwise scheduled, the statute of limitations is three years after the completion of the remedial action.

Prior to filing, the trustee must provide a requisite 60-day notice and allow the notice period to expire. In addition, for actions filed after enactment of CERCLA in 1986, the trustee may not file its claim unless the remedial action has been selected.

The United States District Court for the Eastern District of New York clarified that the statute of limitations applicable to NPL sites (i.e., three years from completion of the remedial action) applies even if the statute of limitations for non-NPL sites (i.e., three years from the discovery of loss and its connection with the release in question) had expired before the site in question was listed on the NPL. New York v. Next Millennium Realty, LLC, 160 F Supp.3d 485 (E.D.N.Y. 2016). In Next Millennium Realty, contamination was first discovered in 1986, but the site was not listed on the NPL until 2011. The state of New York had filed suit against Next Millennium Realty in 2006, asserting a "release" of hazardous substances under CERCLA and public nuisance. Next Millennium Realty moved to have the state's claims dismissed, arguing that the statute of limitations had expired in 1989, and that the case could not be reopened based upon the subsequent listing of the site on the NPL. The court, citing United States v. Asarco Inc., 28 F.Supp.2d 1170 (D. Idaho 1998), rejected this argument and held that the state's NRD claim—brought approximately 20 years after the contamination was discovered—was not time barred, because the listing of the site on the NPL reset the statute of limitations. Next Millennium Realty, 160 F.Supp.3d at 520. The court stated that "with respect to, inter alia, any facility listed on the NPL, a natural resource damages claim is timely so long as it is commenced within three (3) years after the completion of the remedial action, notwithstanding that such claim would have been untimely under Sections 113(g)(1)(A) and (B) of CERCLA at the time the facility was listed on the NPL." Id. at 520.

Several issues relating to the scope of the extended statute of limitations for sites listed on the NPL remain unresolved. First, whether the completion of the remedial action refers to the entire site or to each separate operable unit (OU) on a site is unclear. Trustees generally argue that the statute of limitations does not begin to run until the entire site is fully remediated. The EPA has noted, however, that the law on this issue is unsettled, and the completion of an interim OU might be found to trigger the statute of limitations period at some sites. U.S. Envtl. Prot. Agency, OSWER Dir. No. 9200.4-22A, Memorandum re CERCLA Coordination with Natural Resource Trustees at 6 (July 31, 1997), http://www.epa.gov/superfund/programs/nrd/fields.pdf.

In a more recent case, trustees successfully pursued and recovered under a declaratory judgment action the costs of injury assessment as they were incurred, even before the trustee established its damages and prior to selection of a remedial action. See Confederated Tribes & Bands of the Yakama Nation v. United States, 616 F.Supp.2d 1094 (E.D. Wash. 2007). In Yakama Nation, the court concluded that the trustees actions for the recovery of costs need not await the selection of a remedial action. Id. at 1099-1100. Moreover, the court held that the three-year limitations period contained in CERCLA §113(g)(2), 42 U.S.C. §9613(g)(2), does not apply to the claims for NRD assessment costs, but rather only to claims for response costs. Id.

But in a converse holding, the court in Quapow Tribe of Oklahoma v. Blue Tee Corp., No. 03-CV-0846-CVE-PJC, 2008 WL 2704482 (N.D. Okla. July 7, 2008), rejected a trustees argument that it could bring claims for interim and lost-use damages while the remedial action was still underway. The district court held that there is no authority permitting a natural resources trustee to file a claim under CERCLA while remedial work is underway at a Superfund site, in part because NRD claims cannot be fully measured until the EPAs remedial work is completed. Id. at *10-13.

Second, while NPL-listed sites are entitled to an extended statute of limitations, the geographic boundaries of the extended statute of limitations are unclear. In United States v. ASARCO Inc., 214 F.3d 1104 (9th Cir. 2000), the EPA in various documents referred to the Bunker Hill Superfund Site as a 21-mile square box. However, 13 years after the site was listed, trustees sought NRD for an area of approximately 1,500 square miles. The government argued that the phrase [w]ith respect to any facility listed on the National Priorities List (NPL) was meant to allow all NRD claims arising out of an NPL site, regardless of the site boundaries. Id. at 1105. The court rejected the argument on grounds that [t]here is nothing to suggest that the phrase at issue is intended to bring within the provision any area, related or not, that lies outside a listed facility. Id. at 1108 n.6. The court indicated that the governments only recourse was to expand the boundaries of the NPL site, and that the validity of any attempt to do so was under the exclusive jurisdiction of the U.S. Court of Appeals for the District of Columbia Circuit. Id. at 1107-08.

(b) Claims against Superfund

CERCLA §112(d)(2), 42 U.S.C. §9612(d)(2), provides that claims against the Superfund must be brought within three years after the later of (1) the date of discovery of loss and its connection with the release in question and (2) the date on which final regulations are promulgated under CERCLA §301(c), 42 U.S.C. §9651(c). For claims against Superfund, courts have interpreted the word claim as used in CERCLA to refer to a demand for reimbursement from the Superfund, as opposed to the word action, which courts interpret to refer strictly to judicial proceedings. See Idaho v. Howmet Turbine Component, 814 F.2d 1376, 1380 (9th Cir. 1987).

(c) Contribution actions

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