MPM Silicones, LLC v. Union Carbide Corp.
966 F.3d 200
2d Cir.
2020

Background

  • Sistersville Site: 1,300-acre chemical manufacturing facility in West Virginia formerly owned/operated by Union Carbide Corporation (UCC); UCC used and disposed of PCBs in the 1960s–1970s and conducted limited testing in the 1980s–1990s.
  • Early 1990s response: UCC (and later OSi/Crompton) implemented engineering controls (1992 earthen cap and diversion ditch; 1994 interceptor trench) under RCRA oversight; those measures did not include a comprehensive PCB investigation and were aimed at containment of contaminants identified at the time.
  • MPM acquisition and discovery: GE/MPM acquired the site in 2003; ENVIRON found unexpected PCB detections in 2004; during construction in 2008 MPM uncovered PCB-contaminated soils and incurred ~$374,540 in response costs; MPM notified regulators in 2012 and sued UCC in 2011 (tolling agreement in 2011).
  • Procedural posture: District court (1) granted partial summary judgment holding MPM’s claims for remedial-action cost recovery time-barred under 42 U.S.C. § 9613(g)(2) based on a single-remediation theory, (2) held UCC liable for removal costs and reserved allocation, and (3) after bench trial allocated 95% of future removal costs to UCC and 5% to MPM. Both parties cross-appeal.
  • Central statutory framework: CERCLA distinguishes "removal" (short-term/emergency) and "remedial" (long-term/permanent) actions; § 113(g)(2) provides a 3-year limitations period for removal-cost suits and a 6-year period for remedial-cost suits measured from different triggering events.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether UCC’s early-1990s work (earthen cap/diversion ditch/interceptor trench) were remediation or removal MPM: those works were removal-like (short-term/interim) and therefore did not trigger the remedial six-year clock UCC: the works were remedial (permanent containment) and thus started the six-year limitations period Court: agreed they were remedial (permanent containment measures)
Whether MPM’s remedial-cost claims are time‑barred under § 113(g)(2) because a prior remedial action began in the early 1990s MPM: NYSEG’s “single-remediation” language was misapplied; a later, distinct remediation (discovery of buried PCBs) can trigger a new six-year period UCC: NYSEG and related precedent support that there can be only one remedial action per site and the 1990s remediation started the six-year period Court: vacated district court’s time‑bar ruling — NYSEG’s single-remediation principle is not categorical; remanded for analysis whether the later PCB remediation is distinct from 1990s remediation
Ripeness of declaratory judgment and allocation for likely future removal costs MPM: future removals are sufficiently likely (MPM plans upgrades that will require excavation) and the issue is fit for decision now UCC: future removal costs are speculative and not constitutionally or prudentially ripe; allocation should await a concrete cleanup plan Court: held the matter was constitutionally and prudentially ripe given high likelihood MPM will incur removal costs and that key facts (UCC sole PCB source; MPM delay reporting) are unlikely to change
Proper equitable allocation of future removal costs (95% to UCC) MPM: UCC caused/benefitted from PCB disposal and had sole responsibility, so should bear most costs UCC: MPM assumed risk at purchase, had constructive notice, delayed reporting, and may economically benefit from cleanup; allocation should favor MPM more Court: affirmed 95% allocation to UCC as within district court’s broad equitable discretion (no abuse of discretion)

Key Cases Cited

  • New York State Elec. & Gas Corp. v. FirstEnergy Corp., 766 F.3d 212 (2d Cir. 2014) (articulated single‑remediation principle and distinguished removal vs. remedial actions)
  • New York v. Next Millennium Realty, LLC, 732 F.3d 117 (2d Cir. 2013) (examples of removal actions addressing endpoint threats like drinking water)
  • United States v. W.R. Grace & Co., 429 F.3d 1224 (9th Cir. 2005) (discussion of transition from removal to remedial action and immediacy/comprehensiveness distinction)
  • Colorado v. Sunoco, Inc., 337 F.3d 1233 (10th Cir. 2003) (treated as authority for a single remedial action per site in certain conventional circumstances)
  • Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836 (6th Cir. 1994) (illustrative of phased responses considered part of one remedial project)
  • Goodrich Corp. v. Town of Middlebury, 311 F.3d 154 (2d Cir. 2002) (standard of appellate review — allocation decisions reviewed for abuse of discretion)
  • Key Tronic Corp. v. United States, 511 U.S. 809 (1994) (cited for CERCLA’s policy of enabling private cost‑recovery to encourage cleanup)
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