ELR Citation: 40 ELR 20042
No(s). 06-cv-354-PB (D.N.H. Dec 3, 2010)

A district court held that CERCLA's statute of limitations does not bar the United States from recovering certain costs it incurred in 1993 and 1995 responding to soil and ground water contamination at the Fletcher Paint Works and Storage Facility Superfund site in Milford, New Hampshire. After filing suit in 1991, the United States and an electric company entered into a consent decree in February 1994 requiring the company to reimburse the EPA for the response costs it had incurred as of April 30, 1993. The consent decree did not include a finding of liability. The United States then filed the current action in 2006. The case turns on whether the current action is classified as an "initial action" to recover removal costs, which ordinarily must be commenced within three years of the completion of the removal action, or a "subsequent action" for the recovery of such costs, which may be delayed until as late as three years after the date of completion of all response action. The company argued that the entry of a declaratory judgment on liability, or some equivalent court order, is a definitional requirement for an initial action under CERCLA §113(g)(2). But in light of the statutory language, as well as the underlying policies of both CERCLA in particular and statutes of limitations in general, the declaratory judgment requirement in §113(g)(2) is best understood as a directive to courts when an initial action has actually been litigated to conclusion, not as a requirement for creating initial actions in the first place. The United States' 1991 complaint was thus an initial action, and the 2006 claim is a subsequent action as those terms are used in §113. Because response actions at the site are ongoing, the government's claim for costs stemming from the 1993 and 1995 removal activities is timely.