ELR Citation: ELR 20809
No(s). CV 90-3122 AAH (C.D. Cal. Mar 30, 1995)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(g)'s statute of limitation bars U.S. and California's claims for natural resources damages from a chemical company's DDT discharges and an electronics company's polychlorinated biphenyl (PCB) discharges into the Los Angeles basin. As amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), §113(g)(1) states that actions for damages must be brought within three years of the date of discovery of the loss and its connection to the release, or the date on which regulations are promulgated under CERCLA §301(c), whichever is later. Addressing the date-of-regulations prong, the court holds that Congress intended the limitations period to begin running on August 1, 1986, the date "Type B" natural resource damage regulations were promulgated. Legislative history indicates that Congress intended "promulgation of regulations" as used in §113(g)(1) to mean the promulgation of Type B regulations, not Type B plus all of the promulgation of"Type A" regulations. Moreover, because the U.S. Department of the Interior (DOI) is still promulgating Type A procedures in piecemeal fashion, if the limitations period does not begin until all of the Type A regulations are promulgated, then it has not yet begun to run as of this date, almost 10 years after SARA's passage. Congress certainly did not intend to toll the limitations period for natural resource damages under this prong until some future undetermined date. Further, legislative history indicates that Congress intended CERCLA natural resource damage claims to be brought as early as possible. The court holds that the Type A regulations—which govern minor, short duration releases of hazardous materials in coastal or marine environments—are not pertinent to this case because of the scope and complexity of the natural resource damages at issue. The court holds that because this claim was deemed filed on March 19, 1990, more than three years after August 1, 1986, plaintiffs failed to meet the limitations period under the date-of-regulations prong. The court rejects plaintiffs' claim that based on the statutory language, statutory scheme, and indicia of congressional intent, Congress intended that both the Type A and Type B regulations be promulgated before the limitations period begins. Section 113(g)(1) is not clear on its face. The phrase "promulgation of regulations" could mean Type B regulations for reasons stated above, and the evidence points to that conclusion. Also, because plaintiffs knew in 1985 that the Type A regulations were irrelevant to this case, there was no need for them to wait until the Type A regulations were promulgated to bring this action. Turning to §113(g)(1)'s discovery prong, the court holds that there is no genuine issue of material fact that the National Oceanic and Atmospheric Administration (NOAA) and trustee agencies knew of the DDT and polychlorinated biphenyls releases from defendants' plants and their connection to the injury to the natural resources before March 19, 1987. Thus, plaintiffs also failed to meet the limitations period under the discovery prong. The court rejects the DOI's interpretation of §113(g)(1)'s discovery prong. Section 113(g)(1)(A) does not, as plaintiffs contend, mention that the date of discovery depends on the signing of a preassessment screen determination by the authorized NOAA official. Congress clearly intended to tie one of the prongs to the discovery of the harm, which does not depend on the formal signing or acknowledgement of any one particular type of determination. Under plaintiffs' reasoning, the date of discovery could be suspended indefinitely until the authorized official ultimately decides to sign the preassessment screen determination, despite the fact that the agency may have had full knowledge of the harm for years.

[Other decisions in this litigation are published at 22 ELR 21317 and 21333, 24 ELR 20357 and 20452, and 25 ELR 20703.]

Counsel for Plaintiffs
Andrea N. Ward
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000

Counsel for Defendants
Karl S. Lytz, Kristine L. Wilkes
Latham & Watkins
701 B St., St. 2100, San Diego, CA 92101
(619) 236-1234