Partner, Ropers Majeski Kohn & Bentley

Plaintiff Douglas Autotech Corp. is the current owner of industrial property located in Bronson, Michigan; it purchased the property in December 1989. Defendant Scott Fetzer Co. owned the property from 1978 to 1984. In 1985, groundwater contamination was discovered at the property in connection with the operation of a "chip shed" with a concrete waste storage vault. During Defendant''s ownership of the property, degreasers and others solvents containing TCA and TCE were used in connection with the "chip shed" and leached into the surrounding soils and groundwater. In June, 1991 Plaintiff submitted a RAP, which was approved in September, 1991. Pursuant to the RAP, the vault and surrounding soils were to be removed, and a groundwater treatment system installed; the latter began operation in December, 2001. Between 2003 and 2005 Plaintiff discovered other locations at the site at which degreasing operations had occurred, resulting in additional TCE contamination of soil and groundwater. Plaintiff filed a CERCLA action in October 2007 pursuant to 42 U.S.C. Section 9607 and 9613. In Douglas Autotech Corp. v. Scott Fetzer Co., 2008 U.S. Dist. LEXIS 4894 (W.D. MI. 2008), Defendant, of course, raised a statute of limitations argument. The initial question was whether the cleanup was a removal or remedial action. The Court noted: "The ''remediation action'' limitation (under section 113(g)(2)(B)), rather than the ''removal action'' limitation (under section 113(g)(2)(A)), is applicable due to the nature and scope of the remedial action plan used at the facility... This plan included the use of a large containment well, pumps, air-stripping and monitor wells...The treatment system began start-up activities on Dec. 17, 1992. Therefore, the ''physical on-site construction'' of the remediation facilities pre-dated December 17, 1992." The Court then conclded that the applicable limitations period was set forth in 42 U.S.C. 9613(g)(2)(B). Thus, the six-year period began to run December 1992 and expired December 1998, well before the lawsuit was filed in December 2007. The CERCLA claims were thus dismissed. The Court also noted that the State law claims over which the Court had supplemental jurisdiction should be remanded to the State court. Many courts have followed the logic of this opinion in that they look to the initiation of construction as the trigger date. In contrast, the 9th Circuit looks at the date when the RAP is approved. California v. Neville Chemical Co., 358 F.3d 661 (2004). The bizarre result of this ruling is that it ignores the language of the statute, and allows a regulatory agency to order "interim measures" to address various contaminant conditions at a site, but to delay the trigger of the statute of limitations by simply doing nothing in terms of approving an overall plan. Unfortunately, the U.S. Supreme Court did not deem the conflict between the Circuits to be of sufficient importance to take cert. of the Neville Chemical case, and so the conflict continues.