California ex rel. Dept. of Toxic v. Neville Chem.
| Decision Date | 10 February 2004 |
| Docket Number | No. 02-56506.,02-56506. |
| Citation | 358 F.3d 661 |
| Parties | State of CALIFORNIA, on behalf of the CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff-Appellee, v. NEVILLE CHEMICAL COMPANY, a corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Terry Anastassiou, Ropers, Majeski, Kohn & Bentley, San Francisco, California, for the defendant-appellant.
Bill Lockyer, Atty. Gen. of State of California, Richard Frank, Chief Asst. Atty. Gen., Theodora Berger, Senior Asst. Atty. Gen., Donald Robinson, Supervising Deputy Atty. Gen., Laurie A. Oearlmanm, Deputy Atty. Gen., Harrison M. Pollak, Deputy Attorney General, State of California, Oakland, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CV-00-10205-CAS.
Before: Harry PREGERSON, Ferdinand F. FERNANDEZ, and Marsha S. BERZON, Circuit Judges.
The issue before us presents a question of statutory interpretation: Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), when does the limitations period for suing to collect remedial action costs from a party responsible for hazardous substances begin? One would expect a fairly straightforward answer to that question in the statute. Potential plaintiffs need to know when to file suit, and potential defendants would surely prefer clear notice as to when their legal liability, if any, lapses. True, in the "maze"-like structure and "baffling language" of CERCLA, clarity is rare. Carson Harbor Vill. Ltd. v. Unocal Corp., 270 F.3d 863, 880, 883 (9th Cir.2001) (en banc). The provision we grapple with today appears at first blush to be no exception. But as one works one's way through the statute as a whole, a fairly definite answer emerges. As will appear, we conclude that the limitations period for bringing an initial suit for recovery of remedial action costs under CERCLA cannot accrue until after the final adoption of the remedial action plan required by the statute.
For 35 years, Neville Chemical Company (Neville) manufactured at its industrial facility in Santa Fe Springs, California, various chemical compounds for use in insecticides, solvents, metal working lubricants, and flame retardants. These activities contaminated the groundwater and soil at the facility. In 1986, the California Department of Toxic Substances Control1 (the Department) issued a Remedial Action Order, directing Neville to (1) begin the process of cleaning the site; (2) conduct a remedial investigation and feasibility study; (3) submit a draft remedial action plan (RAP); and, once the draft RAP was finalized, (4) implement the plan.
The Department sent Neville a letter on September 29, 1989, informing Neville of its obligation to pay an "activity fee" to the Department. The letter explained that the activity fee — $46,636.38 — was "to partially cover the Department's cost of overseeing [Neville's] actions to characterize and satisfactorily remediate this site." At that time, the Department had a formal policy of "only collect[ing] direct program expenditures (generally laboratory or contract expenditures) beyond activity fees in cases where the responsible parties are being cooperative." In 1992, the Department rescinded this policy in favor of pursuing the full cost recovery of overseeing a clean-up, regardless of whether the responsible party was recalcitrant or cooperative.
In August 1991, Neville presented the Department with preliminary findings from the Remedial Investigation. In October 1991, the Department directed Neville to prepare a Groundwater Removal Action Proposal (the Proposal), in which Neville was to propose an expedited response to the contamination. The Department stated that the Proposal "should be consistent with a final cleanup strategy for groundwater as it may ultimately become the final remedy presented in the Remedial Action Plan." Neville submitted its Proposal on September 1, 1992. It included "three major components: an extraction system, a temporary on-site treatment system, and an effluent disposal system."
The Department reviewed the Proposal and, in January 1993, directed Neville to implement the extraction and treatment system. In a letter to Neville, the Department stated: "The proposed system will potentially become part of the final remedial alternative for the site," and
Neville submitted a Feasibility Study Technical Memorandum in August 1993, listing alternative possible remedies. In response to this memorandum, the Department stated that it:
has not gathered sufficient information and public comment to require any of the alternatives to be implemented as of yet. Part of this remediation process requires that all feasible alternatives be scrutinized carefully and thoroughly prior to actual selection of the remedial alternative. The Feasibility Study is the tool that allows the Department to weigh the technical and substantial issues for all possible alternatives in order to make a sound and fair decision in protecting the public health and the environment.
Additionally, the letter stated:
The department reviewed and approved of the [Groundwater] Removal Action as an interim measure to prevent further migration and to protect the public health and the environment. The [Groundwater] Removal Action is not a Department-approved final Remedial Action, and cannot be construed to be such. The [Groundwater] Removal Action, may be included as part of the final Remedial Action depending on the results and conclusions of the Health Risk Assessment and the Remedial Action itself, which has yet to be prepared. Therefore, whether the [Groundwater] Removal Action constitutes the groundwater portion of the final Remedial Action cannot be determined at this point.
Neville began to excavate three extraction wells at the site in April 1994. A month later, Neville submitted a Draft Feasibility Study, again proposing several alternative remedies. The Department responded with comments to this draft in June of 1994, including the following: "The Department has never stated that the Ground Water Removal Activity ... is the final ground water remedy, but has to be tested to determine the efficiency of the system." In October of the same year, the Department sent Neville a letter expressing concern because Neville had not started construction of the Groundwater Removal System. The Department also noted,
Neville submitted a final Feasibility Study, discussing seven alternative groundwater remedial options, in December of 1994. Later that month the Department approved it.
Neville then submitted a draft remedial action plan. On May 8, 1995, after having circulated the draft for public review and comment and holding a public meeting to discuss the plan, the Department approved the final remedial action plan. The groundwater containment and treatment system originally designed as an interim removal action remained part of the final RAP.
Neville first argues that the district court erred in denying Neville's summary judgment motion because the statute of limitations for bringing a cost recovery action under CERCLA barred California's suit. A party may appeal a denial of summary judgment once a final judgment has been entered in the suit. Comsource Indep. Foodservice Cos. v. Union Pac. R.R. Co., 102 F.3d 438, 442 (9th Cir.1996). We review a denial of summary judgment de novo. Id. ().
California brought suit on behalf of the Department under § 107 of CERCLA, 42 U.S.C. § 9607. This statute provides that the owner and operator of a facility "shall be held liable for — (A) all costs of removal or remedial action incurred by ... a State... not inconsistent with the national contingency plan...." An "initial action"2 for recovery of costs "must be commenced ... for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action." 42 U.S.C. § 9613(g)(2). The present suit was brought on September 21, 2000. Therefore, the suit is time-barred if and only if the "initiation of physical on-site construction of the remedial action" occurred on or before September 21, 1994.
The facts of the case are not in dispute. The only question is which of the enumerated events constitutes the "initiation of physical on-site construction of the remedial action," thereby triggering the limitations period. Neville maintains that the statute of limitations began to run in April 1994, when it started excavating the extraction wells. California argues that no remedial action could have occurred until the final remedial action plan was approved by the Department on May 8, 1995. This Court has yet to decide when an action is remedial for the purpose of triggering the statute of limitations in cost recovery suits under 42 U.S.C. § 9613(g)(2).
The purpose of a limitations period is to "clearly define the time period in which suit must be commenced." United States v. Colvin, 204 F.3d 1221, 1226 (9th Cir.2000). Here, the statute of limitations is invoked to bar the government...
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