Massachusetts Court Holds That Completion of Removal Activity Does Not Trigger the Statute of Limitations Until a ROD is Issued Despite Apparent Delay by the Government
In the recent decision of United States of America v. Boston and Maine Corporation, C.A. No. 13-10087-IT (D. Mass. Sept. 22, 2016), a Massachusetts federal judge ruled that issuance of a ROD was the completion date of a removal action for statute of limitations purposes even though the actual remedial activities had been completed nearly 13 years earlier. In reaching this conclusion, the Court also examined the often vexing distinction between removal and remedial activities and the question of what constitutes a “facility” under CERCLA. Given the posture of the case, the decision may also serve to underscore the deference courts often afford to the federal government when it, rather than a private party, is seeking to recover costs.