CERCLA statute of limitations for removal or remedial action begins to run upon completion of the removal or remedial action, California District Court reaffirms

CERCLA statute of limitations for removal or remedial action begins to run upon completion of the removal or remedial action, California District Court reaffirms

In Enns Pontiac, Buick, & GMC et al v. Flores, et al, 2008 U.S. Dist. LEXIS 84387 (E.D.CA. 2008), the District Court reaffirmed the rule for the triggering of the statute of limitations. “It is not critical to determine at this time whether the planned activities at Plaintiffs' Site are ‘removal’ actions triggering the three-year statute of limitations, or ‘remedial’ actions triggering the six-year limitations period, because Plaintiffs maintain that their CERCLA claim satisfies either requirement because the period has not yet begun to run. For the purposes of this analysis, it is reasonable to assume that the shorter, three-year statute of limitations under § 9613(g)(2)(A) applies. [¶] The next question is how to determine the commencement date (i.e., the date upon which the limitations period begins). For a claim brought under CERCLA for recovery of response costs, all removal actions performed at a single site will be considered one removal action, triggering the three-year limitations period only after the entire removal phase is complete. See Cal. Dept of Toxic Substances Control v. Alco Pac., 308 F. Supp. 2d 1124, 1132-33 (C.D. Cal. 2004)."
 
Defendant attempted to assert that the removal of a gasoline tank on a site, which was completed, triggered the statute even though the site also had a substantial solvent problem. As the Court noted, “Pearce's argument that Plaintiffs 'completed a removal action by 1994' is inapposite. (Doc. 43 at 7.) That removal action concerned the petrochemical release from the underground storage tank. Pearce points to no authority that supports the proposition that Plaintiffs had any obligation under CERCLA to even begin removal actions concerning the solvents prior to the Water Board's 2006 letter. [¶] Because the evidence before the court indicates that the statute of limitations has yet to begin to run, Pearce's motion to dismiss Plaintiffs' CERCLA claim on the ground that it is time-barred is DENIED” since Plaintiff has not completed the clean-up activities related to the solvent contamination.