ELR Citation: ELR 20794
No(s). 99-3679 (8th Cir. Aug 3, 2000)

The court upholds a district court decision finding a chemical recycler liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for U.S. Environmental Protection Act (EPA) response costs incurred at the Findett/Hayford Bridge Road site in St. Charles, Missouri. In 1990, EPA filed suit against the recycler, and they entered into a consent decree in which the recycler agreed to implement the remediation plan for the site. The consent decree, however, made clear that the recycler did not admit liability for the contamination. The decree also reserved the government's right to recover additional costs incurred at the site. In 1997, the United States filed suit against the recycler to recover additional response costs related to the site. The recycler claimed that the suit was barred by CERCLA §113(g)(2)(B), which requires initial actions to be brought within six years after the physical on-site construction of the remedial action has begun. The court first holds that the 1997 suit was a subsequent action and, therefore, is not barred by the statute of limitations. The 1990 suit clearly was an action and was filed to determine responsibility for remediation at the site. The government plainly asserted that claim, but the issue was not litigated because it was not necessary to do so. The omission of a declaration of liability with respect to the recycler does not make the first suit any less an action for statute-of-limitations purposes. Therefore, the government was required to commence the subsequent action no later than three years after the response action was completed. Here, the response action was ongoing when the government filed its complaint. The court next holds that even if the 1997 action were the initial action, the six-year statute of limitations would not apply because all actions taken before the cutoff date were preliminary to the start of construction and related to testing, monitoring, or design of the remedy. The court further holds that no genuine issues of material fact exist as to whether the government's response costs were properly documented or were inconsistent with the national contingency plan.

Counsel for Appellee
Daniel S. Jacobs
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellant
Ellen S. Goldman
Law Offices of Ellen S. Goldman
7944 Santa Fe Dr., Overland Park KS 66213
(913) 381-9520

Before Hansen and Carman,¹ JJ.