Dan Riesel and Dane Warren Present: “Limits on CERCLA Recovery for Legacy Sites – Emerging Statute of Limitations Issues”

Lawsuits brought under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) frequently involve “legacy” contamination that predates the current owners and operators of the property, sometimes by many decades.  Contaminated sites are often subject to lengthy cleanup proceedings, are remediated over relatively long periods of time, and are subject to new insights as to level of cleanliness needed to protect the public health and the environment.  Perhaps unsurprisingly, cases involving legacy contamination have often resulted in litigants raising complex statute of limitations defenses that can limit a plaintiff’s potential recovery. Emerging litigation in this area has revealed several threshold issues that CERCLA practitioners must navigate to successfully assert or defend against statute of limitations defenses.  The first issue is whether a plaintiff has asserted a cost-recovery claim under CERCLA Section 107(a) or a contribution claim under Section 113(f), which are separate causes of action with different limitations periods and trigger dates.  The second issue is when the statute of limitations accrues (or begins to run), a seemingly straightforward question that may prove outcome-determinative in litigation. Read about these and other issues in our analysis of this developing area of law, available here, recently published in the American Law Institute’s The Practical Real Estate Lawyer journal titled "Limits on CERCLA Recovery for Legacy Sites: Emerging Statute of Limitations Issues" by Daniel Riesel and Dane Warren.