I know that pointing out CERCLA’s stupidity has something of a dog bites man quality, but sometimes Superfund’s stupidity bears repeating. Today’s exhibit? New York v. Next Millenium Realty, in which Judge Feuerstein held – rightly, I am compelled to note – that New York’s natural resources damage claim was timely, because the site at issue had been added to the National Priorities List less than three years before the suit was filed.
Why is this evidence of stupidity?
Because the contamination was known at least by 1995 and CERCLA separately provides that no action may be brought more than three (3) years following the discovery of the loss and the connection to the release of hazardous substances. Thus, New York could not have sued in 2000 for its NRD claims. Or in 2005. Or in 2006 (when it actually filed the complaint). However, the listing of the site on the NPL in 2011 magically revived the claims.
Again, the language of section 113(g)(1) of the statute is unambiguous and the decision thus seems correct – but does anyone think that the result is reasonable? What if New York had pursued the claim earlier, and had lost on statute of limitations grounds? If final judgment had entered against New York, could it still have brought a new suit in 2011 after the NPL listing? Does anyone imagine that Congress had any idea in 1980 that results such as this were possible?
I’ll leave it to those more cynical than I to ask whether EPA and a state might ever game the system by listing a site on the NPL that may have a sufficient Hazard Ranking System score, but which otherwise would not have been listed, solely in order to revive otherwise time-barred NRD claims.
And since Al Gore was at least as responsible for the enactment of CERCLA as he was for the creation of the internet, I’ll lay this all on his doorstep.