CERCLA's Cost Recovery Statute of Limitations: Closing the Books or Waiting for Godot?
For over two decades, courts have struggled over the application of the Comprehensive Environmental Response Compensation and Liability Act’s (CERCLA’s) cost recovery statute of limitations, added by the Superfund Amendments and Reauthorization Act of 1986 (SARA). They have struggled to distinguish between two types of response actions, which have separate statutes of limitations, with separate triggers for the commencement of different periods: “completion” for removal actions and “initiation” of construction for remedial actions. In making this determination, however, the courts thusfar have failed to consider a proviso in the statute of limitations, which commences the limitations period for a removal on the date of EPA’s waiver of the presumptive one-year and $2 million statutory limits on this type of response action. Once this proviso is applied to removal actions which exceed either of these limits, the maximum time limits within which the Government’s cost recovery actions at a site must be commenced become clearer such that Government may not delay the time by which it must bring suit through the continuation of a response action indefinitely
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