ELR Citation: ELR 21029
No(s). CV 82-819-RMT (JRx) (C.D. Cal. Jul 30, 1985)

The court rules that §112 of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA), which provides for a three-year statute of limitations from the later of the date of "discovery of loss" or December 11, 1980, for presentation of a claim or action for damages, does not apply to private actions for recovery of response costs. The court gives two reasons for its ruling. First, the court concludes that the time of "discovery of loss" does not suffice for accrual of a claim for response costs, since plaintiff must have incurred response costs after discovering the loss. Therefore, the court holds that a statute of limitations for response costs actions may begin to run no earlier than when plaintiff has incurred response costs. Second, the court looks to the definitions of "claims," "damages," and "response" under CERCLA and finds that while §112(d) provides a statute of limitations for presentations of claims and commencement of actions for damages, it is inapplicable to plaintiff's action for response costs. Analogous statutes of limitations are three years under both CERCLA §112(d) and §338(1) or §338(9) of the California Code of Civil Procedure. The court adopts this time frame, and holds that the three-year statutory period commenced upon plaintiff's cleanup of the hazardous waste, and is not tolled to a later date of discovery of the identity of defendants. The court further holds that whether or not plaintiff's cleanup was consistent with the national contingency plan is an issue of fact, more appropriately addressed at trial or by way of summary judgment than by the court in a motion to dismiss.

Finally, the court holds that the three-year statute of limitations in California Code of Civil Procedure §338(2) bars plaintiff's negligence and equitable indemnity actions for damages in having to clean up hazardous waste from the property, and in being unable to develop the land during the cleanup period, since the statute commenced to run in 1981.

Counsel for Plaintiff
Rivers J. Morell
Morell & Fields
1666 N. Main, Suite 340, Santa Ana CA 92701
(714) 973-0909

Counsel for Defendant
Stephen T. Swanson, Kenneth L. Waggoner
Lawler, Felix & Hall
700 S. Flower St., 30th Floor, Los Angeles CA 90017
(213) 629-9306