A federal court in Pennsylvania has ruled that the Pennsylvania Department of Environmental Protection (DEP) cannot invoke an implied “consistency waiver” to extend the statute of limitations for bringing a Comprehensive Environmental Response, Compensation and Liability Act (CERCL A) cost-recovery action. Pa. DEP v. Beazer E., Inc., No. 09-1123 (W.D. Pa. 9/28/11).

After incurring costs addressing contamination at the former Boldan Landfill in Penn Township, DEP filed a CERCL A cost-recovery action against several potentially responsible parties (PRPs). Three of those PRPs filed a motion to dismiss, alleging that the lawsuit was time-barred. The court agreed, dismissing with prejudice the complaint against these defendants in November 2010. DEP filed a motion to reconsider, contending that a six-year statute of limitations applies to its cost-recovery claim on the basis of section 113(g)(2)(A) of CERCL A, which states that a cost-recovery action must be commenced “for a removal action, within 3 years after completion . . . , except that such cost-recovery action must be brought within 6 years after a determination to grant a waiver under section 104(c)(1)(C) for continued response action.” DEP argued for the first time in its motion for reconsideration that “it obtained the equivalent of a consistency waiver which permits the United States Environmental Protection Agency to exceed certain cost and durational limits on federally funded cleanups and carries with it an alternative six-year limitations period for removal actions.”

Noting that it was precluded from considering DEP’s new argument on a motion for reconsideration, the court nonetheless found the argument without merit, ruling that a consistency waiver under section 104(c)(1)(C) is applicable only to the expenditure of funds from the Superfund, not, as here, to state funds. The court also said that DEP failed to allege that any federal authority had granted a consistency waiver in the case.