LSI 2010 NRD Santa Fe final conference binder 072110.pdf

David J. Lazerwitz of Farella Braun + Martel LLP Speaker 6: 7
Statute of Limitations, cont.
• Tribal claims – CERCLA Section 9626(d)
• Action must be commenced by the later of:
• Expiration of the applicable limitations period in
9613(g)(1); or
• 2 years after the US gives written notice to tribe that it
will not present a claim within the applicable period
• Provides tribes with an additional 2 years beyond
period applicable to federal trustees in most cases
• State claims
• Claims brought pursuant to state law are controlled
by the application limitations period
• States have amended their limitations period to
allow greater time to pursue claims (e.g., NJ)
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Ripeness – Timing Window
• CERCLA NRD claims may not be filed:
• Prior to 60 days after the trustee provides to the US
and PRP a notice of intent to file suit; or
• Where US EPA is “diligently proceeding” with a
Remedial Investigation/Feasibility Study, the
trustees cannot pursue NRD claims until selection of
the final remedy (9613(g)(1))
• Establishes “window” of time within which
federal trustees can bring NRD claims:
• Opening the window: Selection of the remedy via
Record of Decision
• Closing the window: 3 years after “completion”
• States/tribes are not similarly limited
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Law Seminars International | Natural Resource Damages | 07/15/10 in Santa Fe, NM