State of New York v. Next Millenium Realty
732 F.3d 117
| 2d Cir. | 2013Background
- State sues for CERCLA cost-recovery in Hempstead groundwater contamination linked to NCIA.
- GAC system installed in 1990 and air-stripping tower completed by 1997 to address drinking-water VOCs.
- Removal actions were undertaken to respond to imminent health threats, not to permanently remediate the source.
- DEC investigations and a remedial plan culminated in an October 2003 ROD proposing long-term groundwater cleanup.
- District court held the claims time-barred under a six-year remedial-action statute; appellate court vacated and remanded, finding removal actions governed by a three-year limit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were GAC and air stripper removal or remedial actions? | State argued removal actions governed by 3-year limit. | Defendants argued remedial actions governed by 6-year limit. | Removal actions; three-year limit applies. |
| What statute of limitations governs the cost-recovery claims? | CERCLA removal costs fall under 3-year period. | CERCLA remedial costs fall under 6-year period. | Removal statute applies; timely within 3 years of plan incorporation. |
| Did the removal actions terminate before the remediation plan adoption? | Not necessary; action timely when plan adopted. | Removal ended before plan adoption, supporting a shorter limit. | Removal actions remained timely as of plan adoption. |
| Do duration and cost undermine removal characterization? | Duration/cost do not control classification per EPA guidance. | Long duration and high cost suggest remedial action. | Duration and cost not dispositive; removal characterization retained. |
| Does the State’s use of 'remedial' in filings control classification? | State referred to remedial measures in filings. | Generic uses do not bind CERCLA’s statutory meaning. | Generic use of 'remedial' does not fix classification; actions were removal. |
Key Cases Cited
- New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985) (CERCLA remedial/removal framework; government's interest in prompt response)
- B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir. 1992) (remedial statute; liberal construction to remedial goals)
- W.R. Grace & Co. v. United States, 429 F.3d 1224 (9th Cir. 2005) (removal versus remedial action; agency guidance persuasive)
- Kalman W. Abrams Metals, Inc., 155 F.3d 1019 (8th Cir. 1998) (immediacy of threat informs removal characterization)
- Geraghty and Miller, Inc. v. Conoco, Inc., 234 F.3d 917 (5th Cir. 2000) (overlap between removal and remedial actions; initial placement can be removal)