## Facts

- Neville Chemical Company operated a chemical manufacturing facility in Santa Fe Springs, California for roughly 35 years, contaminating site soil and groundwater.
- In 1986, California’s Department of Toxic Substances Control (DTSC) issued a remedial action order requiring investigation, feasibility analysis, a remedial action plan (RAP), and implementation.
- In 1989, DTSC required an “activity fee” to partially cover oversight costs; DTSC later shifted policy to seek full response-cost recovery.
- Neville performed investigation and design work; DTSC approved Neville’s final RAP on May 8, 1995.
- In September 2000, California sued under CERCLA § 107(a) to recover approximately $760,000 in cleanup and oversight costs.
- Neville argued the claim was time-barred, asserted waiver/estoppel based on earlier fee communications, and contended DTSC’s actions were inconsistent with the National Contingency Plan (NCP).

## Issues

1. When does CERCLA’s six-year limitations period for an initial remedial-action cost-recovery suit begin: at the start of physical on-site work, or only after final adoption of the RAP (or equivalent decision document)?
2. Whether waiver, estoppel, or related equitable theories based on DTSC’s earlier activity-fee approach can bar or reduce CERCLA cost recovery.
3. Whether Neville carried its burden to show DTSC’s response actions were inconsistent with the NCP, precluding cost recovery.

## Decision

- The Ninth Circuit affirmed judgment for California.
- The court held the limitations period for an initial remedial-action cost-recovery suit does not accrue until after final adoption of the RAP (or its functional equivalent).
- Because DTSC approved the final RAP in May 1995, California’s September 2000 action was timely.
- The court rejected Neville’s waiver and estoppel defenses as inconsistent with CERCLA’s limited statutory defenses and unsupported by a sufficient showing of detrimental reliance.
- Neville failed to prove DTSC’s response actions were inconsistent with the NCP; DTSC’s costs were recoverable.

## Legal Principles

- For an initial CERCLA remedial-action cost-recovery action, accrual occurs only after final adoption of the remedial plan that defines the permanent remedy; preliminary physical work before remedy selection does not start the six-year period.
- CERCLA liability is subject to limited statutory defenses; non-statutory equitable defenses such as waiver and estoppel generally do not defeat § 107(a) liability.
- In a governmental cost-recovery action, the defendant bears the burden to show NCP inconsistency sufficient to bar recovery; absent such proof, oversight and cleanup costs are recoverable.

## Conclusion

The Ninth Circuit held that CERCLA’s six-year limitations period for an initial suit seeking remedial-action costs begins only after the final remedial action plan is adopted, affirmed the timeliness of California’s cost-recovery action, and rejected equitable and NCP-based defenses to the state’s recovery of oversight and cleanup costs.


California v. Neville Chemical Co., 358 F.3d 661 (9th Cir. 2004), cert. denied, 543 U.S. 869 (2004)