United States: CERCLA Natural Resource Damages—NPL Listing Resets The Statute Of Limitations

Court decisions concerning the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) statute of limitations applicable to natural resource damages (NRD) claims are relatively few in number. On February 9, 2016, the U.S. District Court for the Eastern District of New York added one more to the short list. In State of New York v. Next Millennium Realty, LLC, 2016 U.S. Dist. LEXIS 15775, the defendants asserted, in a motion for partial summary judgment, that the NRD trustees' claims were time-barred because (a) CERCLA's NRD statute of limitations requires an NRD claim to be filed within three years of the later of (i) "the date of the discovery of the loss and its connection with the release in question" or (ii) the date on which the Department of the Interior's NRD regulations were promulgated, and (b) New York state's complaint had been filed decades after both of those events had transpired. The court rejected this argument and ruled that, per the plain language of CERCLA § 113(g)(1), the listing of a site on the CERCLA National Priorities List (NPL)—even if it occurs well past the later of three years' post-discovery of loss and three years' post-promulgation of the NRD regulations—resets the statute of limitations. The court found that the new statute of limitations, post-listing of the site on the NPL, is three years after the completion of the remedial action (excluding operation and maintenance activities).

To the extent that the regulated community was hoping that this case—which involved the filing of an NRD complaint in 2006, some 20 years after both the discovery of the loss (1986) and the promulgation of the NRD regulations (1987), and the filing of a complaint (2006) well prior to the listing of the site on the NPL (2011)—might present sufficiently compelling facts to convince the District Court to rule against the NRD trustees, the court did not oblige. An appeal to the U.S. Court of Appeals for the Second Circuit may follow in due course, but, notably, the Second Circuit vacated and remanded a prior District Court decision in this case that had found New York's CERCLA cost-recovery claims to be time-barred.

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