MPM Silicones, LLC v. Union Carbide Corp. ( 2020 )

17-3468(L)
MPM Silicones, LLC v. Union Carbide Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2019
(Argued: May 8, 2019 Decided: July 23, 2020
Amended: August 13, 2020)
Docket No. 17-3468(L), 17-3669(XAP)
_____________________________________
MPM Silicones, LLC,
Plaintiff-Counter-Defendant-Appellant-Cross-Appellee,
v.
Union Carbide Corporation,
Defendant-Counter-Claimant-Appellee-Cross-Appellant.
_____________________________________
Before:
DENNIS JACOBS, PIERRE N. LEVAL, Circuit Judges. 1
In cross-appeals from the judgment of the United States District Court
for the Northern District of New York (Brenda K. Sannes, J.), Plaintiff MPM
Silicones, LLC (“MPM”) appeals the grant of partial summary judgment
dismissing its claims for recovery of “remedial action” costs under the
Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”) as barred by the statute of limitations in 42 U.S.C. § 9613(g)(2).
1Judge Christopher F. Droney, who was originally part of the panel assigned to hear this case,
retired from the Court effective January 1, 2020. The remaining two members of the panel are
in agreement regarding this opinion and order. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b).
Defendant Union Carbide Corporation (“UCC”) cross-appeals from the district
court’s holding after a bench trial that UCC is liable to MPM for 95% of the cost
of future “removal action.” Held, the district court’s conclusion that MPM’s
claims for recovery of remedial action costs were time-barred relied on an
incorrect interpretation of our decision in New York State Electric and Gas Corp.
v. FirstEnergy Corp., 766 F.3d 212 (2d Cir. 2014); the district court made no error
in adjudicating the allocation of future removal action costs, or in allocating
95% against UCC. AFFIRMED in part; VACATED and REMANDED in part.
JONATHAN M. ETTINGER, Foley Hoag
LLP, Boston, MA, (Jeremy W.
Meisinger, Foley Hoag LLP, Boston,
MA, Peter A. Sullivan, Foley Hoag LLP,
New York, NY, on the brief) for Plaintiff-
Counter-Defendant-Appellant-Cross-
Appellee MPM Silicones, LLC.
HAROLD L. SEGALL, Beveridge &
Diamond, P.C., Washington, DC, (Karl
S. Bourdeau, Benjamin E. Apple,
Beveridge & Diamond, P.C.,
Washington, DC, Megan R. Brillault,
Beveridge & Diamond, P.C., New York,
NY, Edward M. Grauman, Beveridge &
Diamond, P.C., Austin, TX, on the brief)
for Defendant-Counter-Claimant-Appellee-
Cross-Appellant Union Carbide
Corporation.
TABLE OF CONTENTS
A. BACKGROUND ............................................................................................................. 6
I. UCC’S USE OF PCBS AT THE SITE ................................................................................ 6
II. SUBSEQUENT OWNERSHIP OF THE SITE ...................................................................... 17
III. MPM DISCOVERS BURIED PCBS ................................................................................. 21
IV. PROCEDURAL HISTORY .............................................................................................. 24
V. THE DISTRICT COURT’S JULY 2016 ORDER .................................................................. 27
2
VI. THE DISTRICT COURT’S SEPTEMBER 2017 ORDER ....................................................... 30
B. DISCUSSION ................................................................................................................ 33
I. STATUTE OF LIMITATIONS .......................................................................................... 33
a. UCC’s construction of the earthen cap and the diversion ditch in 1992 were
remedial........................................................................................................................... 44
b. NYSEG’s single-remediation principle was not intended to govern all
circumstances ................................................................................................................. 47
II. FUTURE REMOVAL COSTS .......................................................................................... 67
a. Constitutional ripeness ........................................................................................... 69
b. Prudential ripeness ................................................................................................. 71
c. Future removal cost allocation ............................................................................... 77
C. CONCLUSION ............................................................................................................. 81
JACOBS and LEVAL, Circuit Judges:
These are cross-appeals by Plaintiff MPM Silicones, LLC (“MPM”) and
Defendant Union Carbide Corporation (“UCC”) from different aspects of the
judgment of the United States District Court for the Northern District of New
York (Brenda J. Sannes, J.). Plaintiff MPM owns and operates the Sistersville
site (“Sistersville” or the “Site”), a manufacturing facility in Friendly, West
Virginia. The Site was previously owned and operated by Defendant UCC for
many decades.
In the course of UCC’s manufacturing operations at the Site in the 1960s
and 1970s, UCC generated substantial amounts of toxic polychlorinated
3
biphenyl (“PCB”) waste and buried that waste in various areas of the site. After
MPM acquired the Site, it discovered some of this buried PCB waste and
undertook a program of clean-up activity in response. MPM brought this suit
against UCC under the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”) to recover from UCC the costs it
had incurred (and would incur) in cleaning up UCC’s PCB contamination.
As explained below, with respect to the timeliness of CERCLA suits to
recover such response costs, the governing statute distinguishes between what
it identifies as “removal” action, 42 U.S.C. § 9601(23), which is generally urgent
action taken to deal, at least temporarily, with an immediate health hazard, and
“remedial action,” id. § 9601(24), which is less urgent action whose objective is
to eventually achieve a comprehensive, permanent remedy. See New York State
Elec. and Gas Corp. v. FirstEnergy Corp., 766 F.3d 212, 230–31 (2d Cir. 2014). The
timeliness of cost recovery suits is governed by very different standards,
depending on whether the costs were incurred in “remedial action” or in
“removal action.” 42 U.S.C. § 9613(g)(2). In this opinion, we use the terms
“removal” and “remediation” (or “remedial”) not in their colloquial senses, but
4
to refer respectively to the statutory terms “removal action” and “remedial
action.”
With respect to MPM’s claims to recover remediation costs, the district
court granted summary judgment to UCC on the grounds that, under 42 U.S.C.
§ 9613(g)(2), the suit was time-barred. MPM Silicones, LLC v. Union Carbide
Corp., No. 1:11-cv-1542, 2016 WL 3962630, at *14–19 (N.D.N.Y. July 7, 2016)
(“MPM I”). On the other hand, as for removal costs, the court held by summary
judgment that UCC was liable to MPM, id. at *31, but that MPM was obligated
to cover a part of those costs, reserving the precise allocation for trial, MPM
Silicones, LLC v. Union Carbide Corp., No. 1:11-cv-01542, Dkt. No. 165 (N.D.N.Y.,
Dec. 8, 2016) (“MPM II”). After a bench trial, the court allocated 95% of future
removal costs to UCC with 5% to be borne by MPM. MPM Silicones, LLC v.
Union Carbide Corp., No. 1:11-cv-1542, 2017 WL 6408611, at *15–21 (N.D.N.Y.
Sept. 22, 2017) (“MPM III”). MPM and UCC each challenge aspects of those
rulings on this appeal.
We hold that the district court relied on invalid reasoning in concluding
that MPM’s claim for recovery of the costs of its remediation efforts is time-
barred by 42 U.S.C. § 9613(g)(2). We therefore vacate that ruling and remand
5
for further consideration of the timeliness of MPM’s suit to recover its
remediation costs. As to costs of future removal, we hold that the district court
correctly ruled that the issue of cost allocation was ripe for review and did not
abuse its discretion in allocating responsibility for 95% to UCC.
A. BACKGROUND
i. UCC’s use of PCBs at the Site
The Site consists of 1,300 acres of land in a rural area bordering the Ohio
River. The site was undeveloped farmland until UCC acquired it and
constructed manufacturing facilities. UCC operated those facilities to
manufacture a variety of chemical products from approximately 1955 to April
1993. Today, the site is still used for chemical manufacturing and contains
several facilities for the storage, treatment, and disposal of manufacturing
waste — known as “Solid Waste Management Units” — including a
wastewater treatment unit, an active hazardous waste landfill, and two inactive
waste-disposal areas. These are known as the North Inactive Site and the South
Inactive Site.
During its operation of the Site, UCC used hundreds of thousands of
pounds of polychlorinated biphenyls (“PCBs”) in its manufacturing processes.
6
Those processes created substantial PCB-laden chemical wastes. UCC disposed
of that waste by burning it, or by depositing it into neutralization tanks or lime
pits at the Site. After the lime pits filled with sludge, UCC drained them and
dug them out, and used the PCB-laden sludge to backfill other areas of the Site.
Some of the PCB-laden waste was deposited in the North Inactive Site, a 5.5
acre landfill located uphill and northwest of the Site’s waste water treatment
facility and a creek that runs through the Site, known as Sugar Camp Run. See
Dist. Ct. Dkt. No. 77-1 at 48 (map of the Site); see also Dist. Ct. Dkt. No. 80-17 at
82–85 (ENVIRON Map of Site). The precise locations of all the backfill areas are
unknown.
Figure 1: Partial Map of the Site (Dist. Ct. Dkt. No. 77-1 at 48)
7
Figure 2: Partial Map of the Site (Dist. Ct. Dkt. No. 80-17 at 82)
UCC used PCBs at Sistersville until 1972, when environmental concerns
regarding PCB toxicity began to emerge. 2 In 1979, after soil sample analysis
reported the presence of PCBs in Sugar Camp Run, UCC began to investigate
its past waste disposal practices. Clem Schubert, a UCC employee, was tasked
with that investigation. Schubert conducted interviews with individuals
knowledgeable about UCC’s historical waste disposal practices and learned
about UCC’s practice of disposing of PCB-laden wastes in lime ponds and
2PCBs are now designated as a “hazardous constituent” under the Resource Conservation
and Recovery Act (“RCRA”). 40 C.F.R. Pt. 261, App. VIII.
8
neutralization tanks, and backfilling areas of the Site with sludge from the lime
ponds. Schubert identified several areas in the North Inactive Site and several
locations south of the wastewater treatment plant where he believed UCC had
dumped PCB wastes and further determined that UCC had shifted around
previously buried waste during several construction projects. Schubert
summarized his findings in a January 1980 memorandum, in which he stated
that “it is reasonable to conclude that in the area of the Sistersville Plant site
there are buried . . . heavies with up to 250,000 pounds of PCB[s].” Dist. Ct. Dkt.
238 at 71. That memorandum was circulated to UCC employees, including
UCC’s Plant Manager.
UCC conducted several rounds of testing for various contaminants
(including PCBs) at the Site between 1979 and 1981. While some tests showed
low levels of PCBs in groundwater, the results overall were inconsistent and
revealed only small amounts of PCBs. 3 In 1984, a UCC memorandum
3For example, a June 1979 potable water test revealed 10 parts per billion (“ppb”) of PCBs in
the water at the Site. UCC retested the water in the following month, found no PCBs, and
concluded that the presence of PCBs in the June 1979 sample was a result of laboratory
contamination. One test in March 1980 detected PCBs in a well near the North Inactive Site,
but further tests in the same location performed a year later did not detect PCBs.
9
regarding contamination at the North Inactive Site recognized that “[a]lthough
no definitive evidence can be found, it is possible that up to 250,000 pounds of
PCB[s] are buried at this site . . . However, wells at this site when last monitored
in 1981 showed no significant leaching or contamination and no PCB[s] were
found.” Dist. Ct. Dkt. 78–10 at 1. A 1992 memorandum summarizing all prior
UCC investigations into PCBs at the Site — including Schubert’s 1980
memorandum — concluded that “it is not possible to state unequivocally that
PCB[s] were not placed in the north inactive site” but that “[i]nformation
suggesting disposal is purely speculative” because “[m]onitoring data to date
do not substantiate the speculation.” App’x 382–83. At various times during
the 1980s and 1990s, UCC employees speculated that the low levels of PCBs
detected by UCC’s site monitoring tests were the result of spillage from PCB-
containing electrical equipment that UCC had used at the site.
In 1981, as required by the recently enacted Resource Conservation and
Recovery Act (“RCRA”), see 42 U.S.C. §§ 6901–6992k, UCC submitted an
application to the Environmental Protection Agency (“EPA”) for a permit to
treat, store, or destroy hazardous waste. RCRA established a framework to
“ensure the proper treatment, storage, and disposal of [hazardous] waste.”
10
Prisco v. A&D Carting Corp., 168 F.3d 593, 608 (2d Cir. 1999) (citation omitted).
It requires the owner or operator of any “facility that treats, stores, or disposes
of hazardous wastes” to “seek[] and obtain[] a permit from the [EPA].” Owen
Elec. Steel Co. of S.C., Inc. v. Browner, 37 F.3d 146, 147 (4th Cir. 1994); see also 42
U.S.C. § 6925(a). The statute requires the EPA to evaluate the environmental
risks of any such facility and to issue permits requiring the owner or operator
of a facility to undertake “corrective action for all releases of hazardous waste
. . . from any solid waste management unit.” 42 U.S.C. § 6924(u).
UCC’s permit application required its disclosure of any “hazardous
substances” that had been “stored, treated, or disposed of” at the Site. See
Hazardous Substances: Notification of Treatment, Storage and Disposal
Facilities, 46 Fed. Reg. 22144, 22145 (Apr. 15, 1981); see also 42 U.S.C. § 9603(c)
(requiring disclosure of certain facility owners of the “stor[age], treat[ment], or
dispo[sal]” of any “hazardous substances”). 4 While UCC indicated on the
4EPA regulations at the time did not require UCC to disclose any information regarding
PCBs. This was because PCBs were then “not included within the RCRA definitions of
hazardous waste” as they were regulated under a different statutory framework. See
Hazardous Substances: Notification of Treatment, Storage and Disposal Facilities, 46 Fed.
Reg. 22144, 22145 (Apr. 15, 1981) (making disclosure of PCB contamination voluntary).
11
application that it was aware of several types of hazardous waste at the Site, it
did not disclose its prior use of PCBs, leaving a check box for “PCBs”
unchecked. 5
In its written correspondence with the EPA regarding its RCRA permit
for Sistersville, UCC made no mention of its prior use of PCBs or its dumping
of PCB-laden waste. In response to the EPA’s 1985 request for information
about all solid waste management units at the Site that had “the potential to
release hazardous wastes or hazardous constituents to the environment,” Sp.
App’x 87, UCC disclosed general information about some potential
contaminants at the North and South Inactive Sites but did not mention PCBs. 6
5 Fred Dailey, a long-time UCC employee, indicated in a 1981 memorandum to other UCC
employees that he had advised the EPA representatives that UCC had manufactured
chemicals that could have produced PCB waste from 1956 to 1962, but that UCC’s “experts
[felt] that [UCC] did not make any PCBs.” Sp. App’x 86. Moreover, Dailey indicated that he
told the EPA representatives that UCC used electrical equipment at Sistersville that contained
PCBs.
In 1987, Dailey wrote to UCC’s legal counsel Carol Dudnick, asking Dudnick whether UCC
should revise one of its EPA submissions — the “Notification of Hazardous Waste” form —
to disclose the possibility that UCC had dumped PCB-laden waste at the inactive disposal
sites at Sistersville. Dudnick advised Dailey that it was unnecessary to add PCBs to the form
because the information on PCB contamination was “speculative at best,” because there was
no documentation that anyone at UCC had actual knowledge of PCB disposal at the site, and
because UCC’s monitoring and testing had not detected any PCBs. Id. at 89.
6UCC’s response to the EPA recounted a list of waste components that was roughly identical
to the list of waste contaminants Schubert had listed in his 1980 memo, but conspicuously
12
In response to the EPA’s 1986 further request for information regarding the
solid waste management units, UCC disclosed the results of its site testing,
which showed that, if any PCBs were present in the tested samples, that
presence was below detection limits. UCC did not communicate its history of
PCB use and disposal at Sistersville.
EPA representatives visited the Site on May 15, 1986, and while the
parties dispute what happened during that visit, Fred Dailey, a UCC employee,
wrote a memorandum in 1987 — one year after the visit — stating that, during
the visit, he informed the EPA orally that “it was speculated that as much as
500,000 lbs of contaminated PCB heat fluid was generated during the plant’s
previous activities,” that “its disposition was never determined,” and that “it
could have been placed in an inactive site.” Sp. App’x 88. Dailey’s memo then
stated that he told the EPA representatives that UCC had conducted
groundwater testing and examination of the inactive sites at Sistersville, and
that “[a]ll the results of the tests and analyses conducted showed no PCBs.” Id.deleted from that list Schubert’s conclusion that the site contained “heavies with up to 250,000
pounds of PCB[s].” Sp. App’x 87–88.
13
According to Dailey’s 1987 memorandum, the EPA representatives did not
further inquire about PCBs during the meeting.
In 1988, the West Virginia Division of Natural Resources (“WVDNR”) —
which was authorized by the EPA to administer certain provisions of RCRA —
issued UCC a permit covering Sistersville’s active hazardous waste
management units. That permit included a “Remedial Action Plan” requiring
UCC to treat the groundwater near a copper sludge removal pond at
Sistersville. In 1991, UCC installed a recovery well, which was part of a larger
project to close the sludge pond.
Also in 1988, the EPA issued a RCRA permit to UCC for Sistersville. The
EPA determined that eight of the solid waste management units at the Site —
including the North Inactive Site and the wastewater treatment system —
required further investigation and required UCC to submit a workplan to
remediate hazardous waste issues at each unit. The EPA’s RCRA permit did
not mention PCBs. UCC submitted a workplan for the North Inactive Site in
1992, which concluded that the area was a source of contamination and
recommended construction of an earthen cap to reduce surface water,
sediment, and groundwater contamination. UCC’s 1992 submission to the EPA
14
did not mention PCBs because of what UCC later referred to as “an inadvertent
failure to perform PCB analysis.” Dist. Ct. Dkt. 89-1 at 25 ¶ 62. The EPA
accepted UCC’s proposal, and UCC undertook construction of the earthen cap
in the summer and fall of 1992. 7 The same year, UCC also constructed a
diversion ditch to intercept surface water from the hillside and divert it away
from the disposal area. In 1993, UCC wrote a letter to the EPA advising that it
inadvertently failed to disclose PCBs in its 1992 report and disclosing sampling
results from Sugar Camp Run showing low levels of PCBs. The EPA did not
require any further action in response to this additional disclosure.
None of the corrective actions undertaken by UCC were designed to
investigate or address the possibility that large amounts of PCB-laden wastes
were buried at Sistersville. Instead, the construction of the earthen cap and the
diversion ditch for the North Inactive Site were designed to address the
presence of other contaminants in groundwater and soil in various parts of the
north end of the Site — contaminants UCC believed to have originated at the
7UCC’s corrective actions taken during 1992 also included an effort to stabilize the banks of
Sugar Camp Run and to build new fencing to prevent erosion of the creek.
15
North Inactive Site. 8 As more recent events make clear, a full investigation into
UCC’s historical PCB waste dumping would have required a comprehensive
sampling program in the vicinity of the North Inactive Site and other potential
dumping sites and in Sugar Camp Run. UCC did not conduct such a study, nor
did the EPA require it to. 9 Documents produced in the 1980s and 1990s show
that UCC’s position was that any PCBs found during site monitoring were
likely the result of spillage from its PCB-containing electrical equipment. UCC
removed all PCB-containing electrical equipment from the Site by mid-1991,
and subsequently declared that the Site had attained “PCB ‘free’ status.” Sp.
App’x 90.
8The 1992 RCRA Facility Investigation Report for the North Inactive Site lists various
chemicals in groundwater and sediment samples that were believed to have originated in the
North Inactive Site, including zinc and copper.
9 The parties disagree as to whether the EPA would have required UCC to undertake
corrective action to remediate the PCB contamination at the Site had UCC been more
forthcoming about its historical PCB use and disposal. UCC argues that it disclosed its past
practices, pointing to Dailey’s notes regarding the 1986 site visit. MPM argues that Dailey’s
notes are “self-serving” and that UCC intentionally concealed its past practices from
regulators (and, by extension, from subsequent owners) by failing to disclose them in its
written correspondence with the EPA, and assumes that the EPA would have required
corrective action had it known the full history of PCB use at the site. Notably, however, after
MPM discovered PCB-contaminated soil in 2008, uncovered UCC records revealing the full
extent of UCC’s historical PCB use, and disclosed its findings to federal and state regulators
in 2012, neither EPA nor WVDEP has yet required any further corrective action.
16
ii. Subsequent ownership of the Site
In 1993, UCC entered into an agreement to sell the Site to OSi Specialties,
Inc. (“OSi”). Prior to closing, OSi retained Environment Strategies Corporation
(“ESC”) to conduct environmental due diligence. ESC requested information
from UCC about materials disposed of at the North Inactive Site, and UCC
directed ESC to the 1992 workplan it had submitted to the EPA, which
purported to detail the known contaminants at the site. ESC issued a report
which included five paragraphs on PCBs, three of which address PCB-
containing electrical equipment. The other two paragraphs discuss soil samples
collected in 1992 and 1993 which showed the presence of PCBs, but not at a
level requiring remediation under EPA guidelines.
After the sale, the RCRA permit for the Site transferred to OSi. In 1994,
OSi submitted to the EPA a Corrective Measures/Stabilization Proposal for the
North Inactive Site, which summarized the corrective actions that had
previously been taken to control surface water infiltration and runoff from the
North Inactive Site — including the earthen cap and diversion ditch UCC had
built in 1992 — and proposing the construction of an interceptor trench to
divert water away from the North Inactive Site and continued monitoring and
17
maintenance of the site. EPA approved the proposal in June 1994, and OSi
constructed the interceptor trench in the fall of 1994. In 1997, EPA modified the
Site’s permits to recognize that it was satisfied with the measures being taken
to remedy contamination at the North Inactive Site and to require continued
inspection and maintenance of the earthen cap and the diversion ditches.
In 2003, OSi, which had become Crompton Corporation, sold the Site to
an affiliate of General Electric, Inc., (“GE”), then named GE Advanced
Materials, which would later become Plaintiff MPM Silicones. The purchase
agreement included indemnity provisions relating to environmental
contamination at the Site. Prior to the sale to GE, OSi/Crompton again retained
ESC to perform an environmental site assessment. After conducting site visits
and interviews, ESC issued a report stating that the Site had obtained “PCB
free” status following the removal of all PCB-containing electrical equipment
in 1991. Sp. App’x 93. The report also acknowledged a previous UCC memo
recognizing the possibility that PCBs had been disposed of at the North
Inactive Site but noting that UCC’s site monitoring could not substantiate the
existence of buried PCB wastes.
18
GE hired ENVIRON, an environmental consulting firm, to conduct a
review of the site prior to the sale. John Wood, a GE employee who supervised
ENVIRON’s environmental due diligence, testified (at his deposition during
the proceedings in the district court) that UCC employees told him about the
investigation in the 1980s that had raised the possibility of PCB disposal at the
site, but had assured him that UCC’s site monitoring could not substantiate
that theory. Wood also testified that UCC employees had told him that UCC
had used PCB-containing electrical equipment at the Site — which had since
been removed — and that they believed that “the source of PCBs . . . found at
the site was leaks from or maintenance [of that electrical equipment].” Dist. Ct.
Dkt. 89-9 at 5–6. Wood further testified that UCC did not reveal “anything in
[the] documents or [the] interview process that would have led [GE] to know
that PCBs were used in the manufacturing process,” and that, had he and his
team known about this history, they would have “tailored the investigation
and sampling program in a way that we would have collected more samples,
specifically trying to address that issue or that area of concern.” Id.ENVIRON conducted extensive soil and groundwater testing at the Site
in May 2003. ENVIRON’s final report, issued in May 2004 (after the sale of the
19
property closed in July 2003), noted that PCBs had been found in
concentrations exceeding federal regulatory thresholds in groundwater and
soil samples from various areas in the north end of Sistersville — including
Sugar Camp Run — and that these positive PCB results were “unexpected.”
Dist. Ct. Dkt. 80–17 at 74. 10 The report explained that prior reports of PCB-laden
waste dumping at the Site had been dismissed based on a 1992 UCC
memorandum determining — without explanation — that positive PCB results
had been “determined not to be valid,” and based on statements from UCC
representatives that UCC’s “distillation process would not produce PCBs.” Id.at 11–12. The report, however, further stated:
Although Facility representatives are no longer concerned about
PCBs in the North Inactive Area, unexpected levels of PCBs were
found in some Facility soils and selected ground water samples
during the Phase II investigation. As there is no obvious source for
these PCBs, resampling of ground water, and further investigation
of soil, is suggested.
10PCBs were detected above regulatory levels in soil samples from certain hazardous waste
storage areas, and in the facility’s waste incineration area at the north end of the site, leading
ENVIRON to conclude that “further evaluation of this area is required to identify options of
remediation.” Dist. Ct. Dkt. 80-17 at 40–43. PCBs were also detected in Sugar Camp Run
sediments in varying concentrations, with “concentrations increas[ing] in the downstream
direction.” Id. at 48. PCBs were also detected above regulatory thresholds in groundwater
from the site’s “Environmental Protection Area” in the north end of the site, and in the site’s
“Fly Ash Disposal Area,” also in the north end of the site “just north of Sugar Camp Run.” Id.at 45–46, 48–50.
20
Id.; see also id. at 74. In July 2004, GE Advanced Materials sent the May
2004 ENVIRON report to OSi/Crompton and asserted that under the indemnity
provisions in the purchase agreement OSi/Crompton was responsible for the
costs associated with the necessary investigation and remediation of PCBs at
the Site. OSi/Crompton disclaimed financial responsibility, but nonetheless
engaged ESC to investigate PCB contamination in two areas of the Site: the
Waste Incineration Area and the Permitted Hazardous Storage Waste Area —
both of which are in close proximity to the North Inactive Site. ESC issued a
final report on May 30, 2006, concluding that PCB levels in certain areas of the
site exceeded federal regulatory levels, and recommended “a second phase of
soil characterization to delineate the vertical and horizontal extent of PCBs in
soil” in this area. Dist. Ct. Dkt. 80-7 at 13. On August 28, 2007, WSP
Environmental Strategies delivered a plan for additional sampling, which GE
Advanced Materials (now named MPM Silicones, LLC) did not implement.
iii. MPM discovers buried PCBs
In June 2008, during construction of a project to upgrade the site’s
wastewater treatment unit, MPM uncovered discolored soils which, when
21
analyzed, were revealed to be contaminated with PCBs. MPM suspended its
construction project and spent $123,195.05 in response to its discovery. This
included $30,385.18 disposing of the contaminated materials it had uncovered;
$8,714.71 decontaminating rented construction equipment; and $84,095.16 on
steel shoring it needed to prevent the excavated area from caving in.
In August 2008, MPM contacted OSi/Crompton (then known as
Chemtura) informing it of the recently discovered contamination and again
asserting that OSi/Crompton was responsible for the costs of remediation.
OSi/Crompton again disclaimed responsibility under the indemnity provisions
of the purchase agreement. In June 2009, MPM hired Clean Harbors, an
environmental consulting firm, to conduct further sampling in the wastewater
treatment unit area. Clean Harbors uncovered additional contamination and
reported that it could not yet determine the geographical extent of the
contamination. MPM incurred costs of $251,345.20 in connection with Clean
Harbors’ sampling activities, bringing its total outlays in response to its
discovery of PCBs to $374,540.25. After receiving the results from Clean
Harbors, MPM searched the Site’s records and found UCC documents dating
22
back to 1970 that indicated that UCC had purchased and used “significant
quantities” of PCBs at the Site. Sp. App’x 105.
MPM has not conducted any further soil sampling or any further
construction work on its construction of the wastewater treatment upgrade
since Clean Harbor concluded its sampling in September 2009. MPM, however,
plans to resume the wastewater treatment upgrade by installing a pump station
in the location where it encountered PCBs in 2008, which will require MPM to
excavate and dispose of the PCB-containing soils.
MPM contacted UCC regarding the PCB contamination in September
2010, and the parties entered into a tolling agreement which tolled the statute
of limitations from May 19, 2011 to December 30, 2011. MPM reported its
discovery of the PCB contamination to the West Virginia Department of
Environmental Protection (“WVDEP”) in March 2012. As of September 2017,
neither WVDEP nor the EPA had required any further remediation of the PCB
contamination. 11
11MPM has prepared a soil management plan in anticipation of its excavation of the area
around the wastewater treatment plant, which WVDEP has approved for “advance[ment] to
the final stage.” Sp. App’x 107.
23
iv. Procedural History
MPM filed this suit on December 30, 2011 seeking, inter alia,
reimbursement under CERCLA from UCC for $374,540.25 in past cleanup
costs, and a declaratory judgment of UCC’s liability for any future cleanup
costs required to deal with contamination at Sistersville. 12 UCC brought
crossclaims seeking contribution under CERCLA, arguing that MPM should
bear a portion of the response costs. 13
Like RCRA, CERCLA was enacted to “address the risks associated with
the improper storage and disposal of hazardous and toxic substances.” Schaefer
v. Town of Victor, 457 F.3d 188, 190 (2d Cir. 2006). CERCLA’s “dual goals [are]
cleaning up hazardous waste and holding polluters responsible for their
actions.” New York v. Next Millennium Realty, LLC, 732 F.3d 117, 124 (2d Cir.
12MPM brought CERCLA claims against UCC for recovery of costs under Section 107 and for
declaratory relief as to future costs under Section 113(g)(2), and further asserted state law
claims of negligence, strict liability, and restitution.
13UCC asserted counterclaims for contribution under Section 113(f)(1) of CERCLA and
declaratory relief under Section 113(g)(2) of CERCLA and the Declaratory Judgment Act, 28
U.S.C. § 2201.
24
2013). 14 Among other measures, CERCLA “authoriz[es] private parties to
pursue contribution or indemnification from potentially responsible parties for
expenses incurred responding to environmental threats.” Commander Oil Corp.
v. Barlo Equip. Corp., 215 F.3d 321, 326 (2d Cir. 2000). 15 Section 107(a) of
CERCLA provides a cause of action for private parties to seek recovery of costs
from a “potentially responsible party” 16 of “any [] necessary costs of response”
to a release of hazardous substances. Schaefer, 457 F.3d at 195; see also 42 U.S.C.
§ 9607(a). Section 113(g)(2) permits a party to seek a declaratory judgment on a
potentially responsible party’s liability for any necessary future response costs.
14See also H.R. Rep. No. 99–253 (III), 99th Cong., 1st Sess. 1985, reprinted in 1986 U.S.C.C.A.N.
3038, 3038 (“CERCLA has two goals: (1) to provide for clean-up if a hazardous substance is
release into the environment or if such release is threatened, and (2) to hold responsible
parties liable for the costs of these clean-ups.”).
15 CERCLA also provides that the federal government “may clean up a contaminated area
itself” and then “recover its remediation expenses directly from parties responsible for [the]
pollution.” Schaefer, 457 F.3d at 194–95 (citations omitted); see also State of N.Y. v. Shore Realty
Corp., 759 F.2d 1032, 1041 (2d Cir. 1985) (“CERCLA authorizes the federal government to . . .
use Superfund resources to clean up hazardous waste sites and spills . . . [and to] sue for
reimbursement of cleanup costs from any responsible parties it can locate, allowing the
federal government to respond immediately while later trying to shift financial responsibility
to others.”).
16Section 107(a) of CERCLA enumerates four classes of potentially responsible parties
(“PRPs”): “(1) owners of facilities with hazardous substances; (2) former owners of facilities
with hazardous substances; (3) generators of hazardous substances; and (4) transporters of
hazardous substances.” Schaefer, 457 F.3d at 195 (citing 42 U.S.C. § 9607(a)(1)–(4)).
25
42 U.S.C. § 9613(g)(2). Section 113(f)(1) permits a party which has been sued for
cost reimbursement under Section 107 of CERCLA to sue other potentially
responsible parties for contribution. See id. § 9613(f)(1); see also Cooper Indus.,
Inc. v. Aviall Servs., Inc., 543 U.S. 157, 162–63 (2004).
CERCLA’s cost-recovery provision distinguishes between two kinds of
response projects. “Remedial actions” are “generally long-term or permanent
containment or disposal programs,” State of New York v. Shore Realty Corp., 759
F.2d 1032, 1040 (2d Cir. 1985), which are taken “in the event of a release or
threatened release of a hazardous substance into the environment” and are
“consistent with [a] permanent remedy.” 42 U.S.C. § 9601(24) (defining
“remedy” or “remedial action”). “Removal actions,” by contrast, are “typically
short-term cleanup arrangements,” Shore Realty, 759 F.2d at 1040, which
respond to immediate threats to the environment. 42 U.S.C. § 9601(23) (defining
“removal”); New York State Elec. and Gas Corp. v. FirstEnergy Corp., 766 F.3d 212,
230 (2d Cir. 2014) (“NYSEG”) (“Removal actions are generally clean-up
measures taken in response to immediate threats to public health and safety.”).
Section 113(g)(2) of CERCLA provides different statutes of limitations for
lawsuits brought to recover costs for removals and remediations. See 42 U.S.C.
26
§ 9613(g)(2). A cost recovery suit for a removal must be brought “within 3 years
after completion of the removal action,” while a cost recovery suit for a
remediation must be brought “within 6 years after initiation of physical on-site
construction of the remedial action.” Id.
The parties cross-moved for summary judgment. UCC argued, inter alia,
that MPM’s Section 107 claim for reimbursement of past remediation costs (and
its Section 113(g)(2) claim for a declaratory judgment on UCC’s liability for
future remediation costs) were time-barred because previous corrective actions
taken at Sistersville — specifically, UCC’s installation of a recovery well in 1991
and its construction of the earthen cap and diversion ditch in 1992, and
OSi/Crompton’s construction of the interceptor trench in 1994 — were
remediations, so that the commencement of construction of these measures in
the early 1990s triggered the six-year statute of limitations for remediations.
v. The district court’s July 2016 order
The district court’s July 7, 2016 order concluded that UCC’s actions in
the early 1990s (and OSi’s construction of the interceptor trench in 1994) were
remediation (rather than removal), based in part on the fact that the EPA had
incorporated these measures into the “final remedy” for dealing with
27
contamination at Sistersville. See MPM I, 2016 WL 3962630, at *11–14. (MPM
challenges this conclusion on appeal, arguing that “UCC’s activities were more
analogous to removal action than to remedial action.” MPM Br. at 46–50.)
The district court further found that MPM’s claims for reimbursement of
costs of its past remediations (under Section 107(a)) and its request for a
declaratory judgment on UCC’s liability for future remediation costs (under
Section 113(g)(2)) were time-barred. MPM I, 2016 WL 3962630, at *14–19. In so
holding, the district court relied on a statement in our decision in NYSEG that
“there can only be one remedial action at any given site.” 766 F.3d at 235. The
district court characterized the multiple remediation projects — i.e., (i) UCC
and OSi’s corrective actions in the early-1990s, (ii) any efforts undertaken by
MPM to dispose of the PCB-contaminated soil in 2008 that were remedial in
nature, and (iii) any future remediation efforts MPM would undertake to
decontaminate the Site — as part of the Site’s single remediation and held that
“the statute of limitations [to recover costs for that remediation] began to run
when [UCC] commenced physical on-site construction of the remedial action
[in the early 1990s].” MPM I, 2016 WL 3962630, at *14. Because the six-year
statute of limitations began to run in the early-1990s, the court held that the
28
limitations “had expired long before the parties’ May 19, 2011 tolling
agreement,” and that MPM’s claims were time-barred under Section
113(g)(2)(B). Id. 17 (MPM’s principal argument on appeal is that the district court
erred in holding that these claims were barred by the statute of limitations.)
On that basis, the district court granted UCC’s motion for summary
judgment to the extent that MPM’s claims sought recovery of costs related to
any remediation at the Site. Id. at *35. The district court, however, held that UCC
was liable as a matter of law for past and future costs of removal that MPM had
undertaken or would undertake at Sistersville. Id. 18 Accordingly, the court
17The court rejected MPM’s attempt to distinguish NYSEG on the ground that a prior owner’s
actions could not trigger the statute of limitations for a claim brought by a subsequent owner,
holding that, while there was no precedent “in which one party’s initiation of construction of
the remedial action triggered the statute of limitations for another party,” MPM’s argument
was foreclosed by the statutory text and our decision in NYSEG. MPM I, 2016 WL 3962630, at
*14–17.
The court further rejected MPM’s argument that the statute of limitations should be tolled
under the doctrine of equitable tolling, holding that “MPM has failed to present evidence
showing that it has pursued its rights diligently” because MPM had failed to take action after
receiving the May 2004 ENVIRON report recommending further testing for PCBs at the site.
Id. at *17–19. (MPM challenges each of these conclusions on appeal. MPM Br. at 16–45.)
18The district court found that at least some of MPM’s response costs were “necessary” and
“consistent with the national contingency plan,” as required for cost recovery under Section
107(a)(4)(B). MPM I, 2016 WL 3962630, at *20–25. Further, the district court rejected the
argument that UCC was not liable for any future response costs associated with an area of
the Site referred to as Landfill No. 2 because that landfill was a separate “facility,” holding
that Landfill No. 2 and the other solid waste management units at the site “constitute one
29
entered a declaratory judgment as to UCC’s liability for the costs of future
“removal actions” at Sistersville. Id. at *31. 19 In a later order, the district court
granted UCC’s motion for summary judgment that MPM was liable under
Section 113(f)(1) in contribution for an equitable share of the response costs —
leaving open the issue of cost allocation between MPM and UCC. 20 The parties
subsequently reached a settlement of MPM’s claim for past removal costs. After
the settlement, the only remaining issue was the allocation of financial
responsibility for any future removal costs.
vi. The district court’s September 2017 order
CERCLA facility.” Id. at *25–27. (Neither of these conclusions are disputed by the parties on
appeal.)
19The district court held that MPM’s state-law strict liability and negligence claims are barred
by the applicable statute of limitations and declined to grant UCC’s motion for summary
judgment on MPM’s restitution claim and its claim for a declaratory judgment as to
restitution. See MPM I, 2016 WL 3962630, at *32–35. (Neither of these conclusions are disputed
on appeal.). The parties later stipulated to the dismissal of MPM’s restitution claim. Dist. Ct.
Dkt. No. 202.
20 In its July 7, 2016 order, the district court had denied UCC’s motion for summary judgment
on its counterclaim under Section 113(f)(1) of CERCLA seeking contribution from MPM of
past removal costs — and its counterclaim seeking a declaratory judgment on MPM’s liability
for any future removal costs — after finding that MPM raised a triable issue of fact regarding
its bona fide prospective purchaser defense. See MPM I, 2016 WL 3962630, at *27–31; 42 U.S.C.
§ 9607(r)(1) (limiting liability for “bona fide prospective purchaser[s]”); id. § 9601(40)
(defining “bona fide prospective purchaser”). The district court revisited the issue in a
December 8, 2016 oral order granting summary judgment to UCC on the issue of MPM’s
liability for contribution. See MPM II, No. 1:11-cv-1542, Dkt. No. 165.
30
From January 31, 2017 to February 2, 2017, the district court held a bench
trial on the remaining issues: (a) whether future response costs should be
allocated and (b) what the parties’ equitable shares of those response costs
should be. In a September 22, 2017 order, the district court held that the issue
of allocation of costs was ripe for adjudication because MPM had established
that “it is likely to incur future costs in responding to PCBs at the Site because
MPM plans to upgrade its wastewater treatment facilities” which will require
that “MPM respond appropriately to PCBs in the soils.” MPM III, 2017 WL
6408611, at *15–18. UCC argues on appeal that the district court erred in so
holding because the possibility of MPM incurring future removal costs is too
remote.
In considering how to allocate future removal costs, the district court
noted that “UCC was the only entity to bring PCBs onto the Site” and
“benefitted from disposal of the [PCB] waste” without having to engage in any
corrective action (factors which weighed in favor of allocating costs to UCC),
but concluded that there was insufficient evidence to conclude that “UCC’s
failure to disclose PCBs [to regulators] was driven by an intention to conceal
information.” MPM III, 2017 WL 6408611, at *19. The court also rejected UCC’s
31
argument that MPM should bear a majority of future removal costs because
MPM “had notice of the PCBs and assumed the risk of future PCB-related
response costs when it acquired the Site,” instead crediting Wood’s testimony
that, during the due diligence process, UCC employees led him to believe that
“any PCB contamination was due to PCB electrical equipment.” Id. at *20.
Further, the court rejected UCC’s argument that the indemnity agreement
between MPM and Crompton warranted allocating responsibility to MPM,
finding that “MPM has not been indemnified, nor is there any reason to
conclude that it will be” because “Crompton has disclaimed responsibility
under the indemnity agreement.” Id. at *21. The court also rejected the
argument that MPM should bear the majority of the responsibility because it
would “derive commercial benefit from any future removal action when it
upgrades the wastewater treatment unit,” holding that “there is no evidence
that MPM would realize a meaningful increase in property value as a result of
a PCB cleanup.” Id.The court, however, faulted MPM for failing to contact government
regulators after discovering PCB-contaminated soil in 2008, and for waiting
until 2012 to inform WVDEP of this development, noting that the Site’s RCRA
32
permit required MPM to notify regulators of any “relevant facts” regarding
newly-discovered contamination within seven days of discovery. Id. at *20–21.
Accordingly, the court allocated five percent of future removal costs to MPM
and allocated the remaining ninety-five percent of future removal costs to
UCC. Id. at *1. 21 (On appeal, UCC argues that the district court abused its
discretion in weighing the relevant allocation factors, and that the district court
should have allocated more of the cost burden to MPM.)
B. DISCUSSION
MPM argues in this appeal that the district court erred in concluding that
MPM’s claims for reimbursement of remediation costs are time-barred by §
113(g)(2)(B). UCC contends that the district court erred in determining that
future allocation of removal costs was ripe for review, and further erred in
allocating 95% of those costs against it.
i. Statute of Limitations
21Because of its prior order holding MPM’s claim for reimbursement of costs for “remedial
actions” to be time-barred, the district court did not allocate costs related to any future
remedial actions.
33
MPM directs its arguments against two aspects of the district court’s
finding of untimeliness: (1) the court’s conclusion that UCC’s prior response
projects in the 1990s were in the nature of remediation, rather than removal;
and (2) its conclusion that, if UCC’s prior response projects constituted
remediation, the six years allowed by § 113(g)(2)(B) for recovery of the costs of
any further remediation at the Site began to run upon UCC’s initiation of its
remediation in 1992 and expired in 1998, long before MPM purchased the Site.
The district court reached the latter conclusion based on its understanding of
our NYSEG opinion to mean that, once any remediation is undertaken at a site,
all future remedial activity at the site, regardless of circumstances, is deemed
to be part of the same initial remediation, so that, under § 113(g)(2)(B), the
opportunity for timely suit to recover the costs of future remediation at the site
necessarily expires, absent tolling, six years from the start of the initial
remediation.
We agree with the district court that UCC’s corrective actions
undertaken in the 1990s were remediation, but we do not understand NYSEG
to mean that, for purposes of determining the timeliness of a cost recovery
action, all remediation activity at a site regardless of circumstances is deemed
34
to be part of a single remediation, so that the six year limitations period
necessarily begins to run at the start of the first remedial activity. Accordingly,
we believe the district court’s conclusion that MPM’s suit was untimely was
based on an inaccurate premise. We do not decide whether MPM’s suit to
recovery remediation costs was in fact timely, but instead vacate the district
court’s decision and remand for reconsideration consistent with this opinion.
The distinction between “removal” actions and “remedial action[s]”
arises from the first iteration of the CERCLA statute enacted in 1980. See Pub.
L. 96–510, § 101(a)(23)–(24); 94 Stat. 2767, 2770–71 (1980) (defining “remove” or
“removal” and “remedy” or “remedial action”). The statute defines “remove”
or “removal” as:
the cleanup or removal of released hazardous substances from the
environment, such actions as may be necessary [] in the event of
the threat of release of hazardous substances into the environment,
such actions as may be necessary to monitor, assess, and evaluate
the release or threat of release of hazardous substances, the
disposal of removed material, or the taking of such other actions
as may be necessary to prevent, minimize, or mitigate damages to
the public health or welfare or to the environment, which may
otherwise result from a release or threat of release.
Further, the statute provides several examples of “removal” actions,
including:
35
security fencing or other measures to limit access, provision of
alternative water supplies, temporary evacuation and housing of
threatened individuals not otherwise provided for.
42 U.S.C. § 9601(23).
The statute defines “remedy” or “remedial action” as:
those actions consistent with permanent remedy taken instead of
or in addition to removal actions in the event of a release or
threatened release of a hazardous substance into the environment,
to prevent or minimize the release of hazardous substances so that
they do not migrate to cause substantial danger to present or
future public health or welfare or the environment.
The statute also provides an illustrative list of “remedial action[s],”
including:
such actions at the location of the release as storage, confinement,
perimeter protection using dikes, trenches, or ditches, clay cover,
neutralization, cleanup of released hazardous substances and
associated contaminated materials, recycling or reuse, diversion,
destruction, segregation of reactive wastes, dredging or
excavations, repair or replacement of leaking containers, collection
of leachate and runoff, onsite treatment or incineration, provision
of alternative water supplies, and any monitoring reasonably
required to assure that such actions protect the public health and
welfare and the environment. The term [also] includes the costs of
permanent relocation of residents and businesses and community
facilities [where] such relocation is more cost-effective [than other
remedial action] . . . [and also] includes offsite transport and offsite
storage, treatment, destruction, or secure disposition of hazardous
substances and associated contaminated materials.
Id. § 9601(24).
36
The statutory definitions do not provide clear insight as to the boundary
between removals and remediations. The definitions of each type of action
overlap substantially: certain corrective actions — like covering contaminated
soil or diverting water away from contaminated areas with drainage controls,22
the provision of alternative water supplies to replace contaminated water, 23
and related monitoring activities 24 — may be classified as either “removal” or
“remedial” actions. Over several decades of CERCLA litigation, courts have
agreed on a general principle to distinguish the two: “[r]emoval actions are
generally clean-up measures taken in response to immediate threats to public
health and safety” that “address contamination at its endpoint,” while
“[r]emedial actions are typically actions designed to permanently remediate
22See 42 U.S.C. § 9601(24) (listing “trenches,” “ditches,” and “clay cover” as examples of
“remedial action[s]”); 40 C.F.R. § 300.415(e) (listing “[d]rainage controls, for example, run-off
or run-on diversion,” and “[c]apping of contaminated soils” as examples of “removal
actions”).
23See California ex rel. Cal. Dept. of Toxic Substances Control v. Neville Chemical Co., 358 F.3d 661,
667 (9th Cir. 2004) (noting that “’provision of alternative water supplies’ is listed as both a
type of ‘remedial action’ and as a type of ‘removal’”).
24See Colorado v. Sunoco, Inc, 337 F.3d 1233, 1244–45 (10th Cir. 2003) (explaining that
monitoring wells could be classified as “removal” or “remedial” under both statutory
definitions).
37
hazardous waste” that address contamination at its source. NYSEG, 766 F.3d at
230–31.
The key distinction between the two terms is immediacy and
comprehensiveness. United States v. W.R. Grace & Co., 429 F.3d 1224, 1244 (9th
Cir. 2005). Removal actions are undertaken to deal with “threat[s] to human
health or the environment which require[] an immediate response.” Id.(citations omitted). 25 Because removal actions are generally targeted at
reducing the deleterious effects of contamination — e.g. the removal from
downstream water supply wells of contaminants that have migrated from a
nearby landfill, see Next Millenium, 732 F.3d at 126–27 — they are generally not
so ambitious as to seek to eliminate or permanently contain the source of
contamination. They do not generally aim to serve as permanent solutions. See,
e.g., NYSEG, 766 F.3d at 231–33 (characterizing efforts to “clean[] up coal tar
that had already migrated from [the source of contamination]” and to “remove
25See also Barmet Aluminum Corp. v. Reilly, 927 F.2d 289, 291 (6th Cir. 1991) (“Removal refers
to short-term action taken to halt any immediate risks posed by hazardous wastes.”); 40 C.F.R.
§ 300.415(b)(2) (listing various public health hazards like “exposure to nearby human
populations, animals, or the food chain from hazardous substances or pollutants or
contaminants” as factors to be considered in determining the appropriateness of a removal
action).
38
[coal tar] from [a] river” as “removal actions” because those efforts were “not
designed to clean up contamination at the source”); id. at 233 (“[M]easures
taken to minimize and mitigate contamination, but not to permanently
eliminate it, are properly classified as removal actions.”) (citation omitted).
Removals are often planned and executed relatively quickly in order to
immediately abate public health hazards, such as contaminated drinking
water. 26 Accordingly, removals are often undertaken to secure prompt relief
from a danger even though the action is not deemed a step toward permanent
elimination of the threat. See, e.g., Colorado v. Sunoco, Inc., 337 F.3d 1233, 1244
(10th Cir. 2003) (holding that the plugging of a mine was a “removal” action in
part because, when the plug was installed, “it was uncertain whether the
plugging would achieve the goal of eliminating [contamination]”). 27 In essence,
26See Next Millenium, 732 F.3d at 126–29 (holding that two measures designed to “remove
sufficient amounts of contamination from polluted water to render the water safe to drink”
were “removal actions”); City of Moses Lake v. United States, 458 F. Supp. 2d 1198, 1213 (E.D.
Wash. 2006) (action to address contamination and restore safe drinking water “bears all of the
hallmarks of a ‘removal action’ — an interim response to minimize and stabilize imminent
harms to human health”).
27See also id. at 1245 (holding that the installation of monitoring wells was a “removal” action
because the “wells were installed so that the EPA could determine . . . whether the plugging
was effective in reducing the level of contamination in the water”).
39
because removals “can be initiated promptly after notification of a threat,” they
provide “flexibility to tailor prompt and effective responses to immediate
threats to human health and the environment.” W.R. Grace, 429 F.3d at 1226,
1240.
Remediations, by contrast, include only actions “consistent with [a]
permanent remedy.” 42 U.S.C. § 9601(24). Remediations are undertaken to
permanently remediate contamination, generally after months (if not years) of
correspondence with regulators, soil testing, data collection, safety and quality
control analysis, and feasibility studies. See 40 C.F.R. § 300.430(a)(2) (describing
the process of compiling a remedial investigation/feasibility study, which
“includes the following activities: project scoping, data collection, risk
assessment, treatability studies, and analysis of alternatives”). See generally id.§ 300.430 (describing the process a regulatory agency must undertake before
approving or implementing a remedial action program). Unlike removals,
remediations generally presuppose full disclosure has been made to the
regulator of the “scope and complexity of the site problems being addressed,”
id. § 300.430(a)(ii)(C); see also 42 U.S.C. § 9603(c), so that the remediation may
serve as a “final, once-and-for-all cleanup of a site” designed to cost-effectively
40
remediate the full scope of those known problems. NYSEG, 766 F.3d at 236.
Unlike removals, remediations typically address “the underlying source of the
contamination.” Id. at 233 (citation omitted) (characterizing a 1980s cleanup to
prevent coal tar that had migrated from its source from “further migrating into
[a] river” — taken as “an immediate response to a health concern” about water
contamination — as a removal action, but characterizing later work to excavate
the source of the coal tar contamination as a remediation because it was
“designed to remediate the pollution at its source”).
Moreover, CERCLA and its implementing regulations provide a
pathway to “transition from a removal to a remedial action if it [is]
‘determine[d] that the removal action will not fully address the threat posed by
the release.’” W.R. Grace, 429 F.3d at 1242–43 (quoting 40 C.F.R. § 300.415(g)).
In other words, removal actions initially undertaken to respond to immediate
threats may be adopted as part of a permanent remedial solution. See, e.g. Next
41
Millenium, 732 F.3d at 128–29 (noting that two removal measures “were
ultimately adopted as part of a permanent remedial solution”). 28
As passed in 1980, CERCLA did not contain a statute of limitations
applicable to cost recovery actions under Section 107. See Merry v. Westinghouse
Elec. Corp., 684 F. Supp. 852, 856 (M.D. Pa. 1988); United States v. Mottolo, 605 F.
Supp. 898, 909–10 (D.N.H. 1985). 29 In 1986, Congress passed the Superfund
Amendments and Reauthorization Act of 1986 (“SARA”), Pub. L. 99–499, 100
Stat. 1613, which implemented separate statutes of limitations for removals and
28Accordingly, while Section 113(g)(2) requires that a suit to recover the costs of a removal
action be filed “within 3 years after completion of the removal action,” it further provides that
“if the remedial action is initiated within 3 years after the completion of the removal action,
costs incurred in the removal action may be recovered in the cost recovery action” brought
under the provision for cost recovery of remedial action costs. 42 U.S.C. § 9613(g)(2)(B). In
other words, when a party transitions from undertaking removal action to undertaking
remedial action by adopting and commencing construction of a permanent remedial solution,
that party may bring suit to recover the costs of all its actions — whether removal or remedial
— at any time “within 6 years after initiation of physical on-site construction of the remedial
action.” Id.; see also H.R. Rep. No. 99–253(III), at 21 (1985) (House Judiciary Comm. Report)
(“If a remedial action is commenced within three years of the completion of a removal action,
costs incurred in the removal action may be added to those sought for the remedial action. In
other words, there is no intention to mandate separate cost recovery actions for removal and
remedial actions so long as they follow each other within a three year time period.”).
29To evaluate the timeliness of cost-recovery claims in the absence of a statutory limitations
period, courts applied an analogous state or federal statute of limitations or the doctrine of
laches. See Mottolo, 605 F. Supp. at 909.
42
remediations. See 42 U.S.C. § 9613(g)(2). 30 Section 113(g)(2) of CERCLA, as
amended by SARA, now provides:
An initial action for recovery of the costs referred to in [Section
107] must be commenced—
(A) for a removal action, within 3 years after completion of the
removal action . . .
(B) for a remedial action, within 6 years after initiation of
physical on-site construction of the remedial action . . . .
42 U.S.C. § 9613(g)(2). The legislative history does not explain why
Congress took a different approach to limitation periods as between removals
and remediations. 31
30See H.R. Rep. No. 99–253 (III), 99th Cong., 1st Sess. 1985, reprinted in 1986 U.S.C.C.A.N. 3038,
3043–44 (explaining that the Committee on the Judiciary “believes that cost recovery . . .
actions should be brought at the most appropriate time in light of the response action taken”
and discussing the statutes of limitations in SARA).
31Several early versions of the bill as considered by both the Senate and the House of
Representatives contemplated a single statute of limitations period for all cost recovery
actions under Section 107(a): six years from the “completion of the response action.” See
Hearing on Reauthorization of Superfund Before Subcomm. On Commerce, Transportation, and
Tourism of the H. Comm. On Energy and Commerce, 99th Cong. 65, 107–08 (March 1985) (noting
that the draft bill would “establish[] a six-year statute of limitations for the filing of cost
recovery actions” to run from the “completion of any operation and maintenance activities”)
(EPA’s Proposed Amendments to CERCLA); S. Rep. No. 99–11, at 54–55 (March 1985) (Senate
Comm. on Environment and Public Works) (noting that the bill under consideration would
provide for a statute of limitations of “6 years after the date of completion of the response
action”). By October 1985, the House considered and proposed a new version of the bill
“distinguish[ing] between remedial actions and removal actions” for statute of limitations
purposes, see H.R. Rep. 99–962 at 223 (1986), providing for a three-year statute of limitations
43
a. UCC’s construction of the earthen cap and the diversion ditch in 1992 were
remedial
MPM argues on appeal that UCC’s construction of an earthen cap and
diversion ditch for the North Inactive Site (and OSi/Crompton’s construction
of a different interceptor trench in 1994) were removals rather than
remediations because those actions are similar to actions that this court held in
Next Millenium and NYSEG to be removals. 32 In Next Millenium, however, we
classified two measures — a “granulated activated carbon adsorption system”
and an “air stripper tower,” both designed to remove volatile organic
compounds from water supply wells in order to decontaminate drinking
water, 732 F.3d at 122 — as removals in part because “both systems were
installed in response to an imminent public health hazard,” which we noted
for removal actions, to run from the “completion of the removal action,” and a three-year
statute of limitations for remedial actions, to run from “the commencement of physical on-
site construction of the remedial action, that is, after the RI/FS and after design of the remedy.”
H.R. Rep. No. 99–253(III), at 21 (1985) (proposing this change). By October 1986, the House
version of the bill had been amended to extend the statute of limitations for remedial actions
from three years to “6 years after initiation of physical on-site construction of the remedial
action.” See H.R. Rep. 99–962, at 39 (1986). That language is reflected in the enacted version
of SARA. See Pub. L. 99–499, 100 Stat. 1613, 1649 (Oct. 17, 1986).
32MPM also argues that these actions were not “consistent with a permanent remedy” as
required by the definition of “remedial action” under 42 U.S.C. § 9601(24) because the actions
did not deal with PCB contamination at the Site by reason of UCC’s failure to disclose that
problem to regulators.
44
was “a defining characteristic of removal actions.” Id. at 126. Moreover, the
Next Millenium court noted that both measures “were designed . . . to address
water contamination at the endpoint — the wells — and not to permanently
remediate the problem by ‘prevent[ing] or minimiz[ing] the release of
hazardous substances so that they do not migrate’ from the underlying source
of contamination.” Id. at 127 (quoting 42 U.S.C. § 9601(24)). The measures were,
in other words, a “respon[se] to a water-supply problem, not an environmental
cleanup concern” because they dealt with mitigating the effects of
contamination, rather than eliminating or containing the source of
contamination (which, in Next Millenium, was contamination at a nearby
hazardous waste site). Id.In contrast, each of the measures taken by UCC and OSi/Crompton to
deal with the North Inactive Site in the 1990s were clearly remedial in nature.
Neither the 1992 earthen cap, nor the 1992 diversion ditch, nor the 1994
interceptor trench were efforts to deal with any “imminent” hazard or threat to
public safety by neutralizing contamination “at its endpoint.” See NYSEG, 766
F.3d at 231. There is no suggestion in the record that the contamination at
Sistersville had caused any kind of time-sensitive threat that “required an
45
immediate response.” W.R. Grace & Co., 429 F.3d at 1244 (citation omitted); see
id. at 1245 (concluding that “removal actions encompass interim, partial time-
sensitive responses taken to counter serious threats to public health”). Rather,
these actions were taken as steps to permanently prevent contaminants known
to be buried at the North Inactive Site from migrating away from their source
— i.e., the location of their burial. Such “permanent containment” measures are
remedial in nature. Schaefer, 457 F.3d at 195; id. at 204 (holding that the
construction of an earthen cover to close a landfill was a remediation); see also
42 U.S.C. § 9601(24) (defining “remedial action[s]” as those taken “to prevent
or minimize the release of hazardous substances so that they do not migrate,”
and listing “trenches,” “ditches” and “clay cover” as examples of “remedial
action[s]”); W.R. Grace & Co., 429 F.3d at 1238–39 (noting that the definitions of
“remedial action” and “removal” overlap, but that the “definition of ‘remedial
action’ . . . can be distinguished from ‘removal’ because it refers to ‘permanent’
remedies . . . [while] ‘removal’ is focused on temporary and emergency
activities”). 33 We conclude that the district court did not err in holding that
33To be sure, capping contaminated soil may also be characterized as a “removal action.” See
40 C.F.R. § 300.415(e)(4).
46
UCC’s construction of the earthen cap and the diversion ditch in 1992, and
OSi/Crompton’s construction of the interceptor trench in 1994, qualified as
remediations under CERCLA.
b. NYSEG’s single-remediation principle was not intended to govern all
circumstances
The district court concluded that MPM’s claims for reimbursement of the
costs of its remediation are time-barred by reason of UCC’s prior remediation,
which began more than six years before MPM brought suit. The district court
believed this conclusion was compelled by a statement in our NYSEG opinion,
which signed on to a proposition asserted by the Tenth Circuit (and some other
courts) that “there can only be one remedial action at a site.” 766 F.3d at 236. 34
We believe for reasons explained below that this misinterpreted our NYSEG
ruling.
The NYSEG opinion, as relevant here, considered whether the plaintiffs’
cost-recovery claims, brought in 2003, were barred by 42 U.S.C. § 9613(g)(2),
the same statute of limitations provision that applies here. NYSEG, 766 F.3d at
34See Sunoco, 337 F.3d at 1241 (“[CERCLA’s language] indicates there will be but one ‘removal
action’ per site or facility, as well as a single ‘remedial action’ per site or facility.”).
47
221. The plaintiff was the operator of two sites, Norwich and Owego, which
had been contaminated by the defendant, a prior operator of the site. 35 At the
Norwich site, the plaintiff had undertaken a three-phase “Interim Remedial
Measure,” planned in consultation with the governmental regulatory agency
to take place in 1993 (Phase I), 1996 (Phase II), and April 1997 (Phase III). Id. at
234. The 2003 suit sought to recover the costs of Phase III only, presumably
because a suit to recover the costs of Phases I and II would clearly have been
barred as more than six years had elapsed from the beginning of those phases.
Id.; 42 U.S.C. § 9613(g)(2); see also New York State Elec. & Gas Corp. v. FirstEnergy
Corp., 808 F. Supp. 2d 417, 427 (N.D.N.Y. 2011) (“NYSEG Dist. Ct. Op.”). The
defendant contended the suit was barred, even as to the 1997 phase, because
the six years allowed began to run at the start of the remediation in 1993. The
plaintiff argued that its suit was not barred because the 1997 phase of the
cleanup was a discrete project, distinct from the prior phases, so that its
35The NYSEG opinion also considered the timeliness of the plaintiff’s cost recovery claim for
a response project at a third site at Plattsburgh. Id. at 231–33. The court upheld the district
court’s finding that, because earlier clean-up action was “more akin to a removal than a
remedial action,” that earlier response effort did not trigger the statute of limitations for
claims to recover remedial action costs. Id. at 233.
48
inception in 1997 started a new allowable six years for a cost-recovery suit. 36
NYSEG, 766 F.3d at 234. Rejecting that argument, this court affirmed the district
court’s finding that the three-phase cleanup was “one remedial cleanup,”
relying, in part on the plaintiff’s having stipulated that the three stages of the
project were a “single action comprised of three phases.” Id.
At the one-acre Owego site, the plaintiff undertook to eliminate coal tar
contamination between September 1994 and 1995 (the “1994 response”). Id. at
235. After discovering additional coal tar contamination and the pipe that was
the source of that contamination, the plaintiff undertook additional response
activity in 2003 (the “2003 response”). See NYSEG Dist. Ct. Op, 808 F. Supp. 2d
at 479; NYSEG, 766 F.3d at 235. The defendant argued that work done in the
2003 response was a “continuation of the remedial work begun in 1994,”
NYSEG, 766 F.3d at 235, so that the 2003 suit was time-barred by the passage of
six years. See 42 U.S.C. § 9613(g)(2). The district court agreed that the claim was
time-barred, reasoning that the 1994 response and the 2003 response were part
of the same “remedial” project, in part because both actions addressed “the
36The plaintiff also argued unsuccessfully that the 1997 response project should be
characterized as a removal action, rather than a remedial action. Id. at 234–35.
49
same source and constituent contamination.” NYSEG Dist. Ct. Op., 808 F. Supp.
2d at 511. 37
On review, this court affirmed the district court’s finding of
untimeliness. NYSEG, 766 F.3d at 235–36. We rejected the plaintiff’s argument
that the work done in 2003 was a separate and distinct remediation from the
remedial work done in 1994, see id. at 235; see also Br. for Plaintiff at 45–47 in
NYSEG, 766 F.3d 212 (No. 11-4143) (2d Cir. 2014), characterizing it rather as a
continuation of the earlier project.
What we have described above fully explained and justified the NYSEG
court’s conclusion that the suit was time-barred. As further support, however,
the NYSEG court cited with approval the Tenth Circuit’s statement in Colorado
v. Sunoco that the CERCLA statute envisages only one “’remedial action’ per
site.” 337 F.3d at 1242. The district court in the case now before us understood
that proposition as categorically applicable in all circumstances. MPM I, 2016
WL 3962630, at *14. For reasons explained below, we believe the NYSEG
37The district court also rejected the argument that, because the 2003 action was targeted at a
different “operable unit” than the 1994 action, the actions were separate “remedial actions,”
in part because the two operable units were “insufficiently distinct to support the application
of separate limitations periods.” 808 F. Supp. at 511.
50
opinion cannot have intended this proposition to govern every different
remediation circumstance. The proposition, although altogether reasonable in
the conventional circumstances to which it was applied in NYSEG, Sunoco, and
other cases, cannot have been intended to apply in very different
circumstances, in which application of that proposition would make little
sense.
In NYSEG, as reviewed above, the plaintiff had undertaken a series of
remedial steps directed towards remediation of a contamination problem
perceived at the outset; the subsequent steps were either explicitly foreseen at
the start of the remediation (Norwich), see NYSEG, 766 F.3d at 234, or at least
contemplated (Owego), id. at 235; see also NYSEG Dist. Ct. Op., 808 F. Supp. 2d
at 478 (noting that the regulatory agency had defined the Susquehanna River,
the site of the subsequent response project, as an operational unit in March
1994, and that the operator begun an investigation of that operational unit in
1996). And nothing would have prevented the plaintiff from suing the
contaminator, both to recover remediation costs already expended, and for a
declaratory judgment as to liability and allocation of future costs, within the six
years allowed for such a suit. See 42 U.S.C. § 9613(g)(2) (allowing for a forward-
51
looking claim for a “declaratory judgment on liability for . . . further response
costs”). As applied to such circumstances, the single-remediation principle
means simply and logically that the plaintiff cannot escape the six-year
limitation period and endlessly postpone the bringing of suit by characterizing
subsequent phases of the initial project as new remediations. A plaintiff whose
suit is time-barred in such circumstances has suffered no unfairness as the
preclusion was simply the result of the plaintiff’s needless delay.
The several precedents that NYSEG followed in uttering the single-
remediation principle similarly involved the same conventional circumstance,
for which that principle is fair and sensible. The plaintiffs — with at least a
general awareness of the contamination problems — had undertaken at the
outset to remedy them. The subsequent stages of response were either (1)
further steps towards remediating the original problems, see, e.g., California ex
rel. Cal. Dep’t of Toxic Substances Control v. Hyampom Lumber Co., 903 F. Supp.
1389, 1390–91 (E.D. Cal. 1995), or (2) steps to remediate different aspects of the
originally known problem, see, e.g., Sunoco, 337 F.3d at 1237–38. And there was
no impediment that would have prevented the plaintiffs from suing the
52
contaminator within six years of initiating the remediation as to both past and
future remediation work.
In Hyampom, for example, the District Court for the Eastern District of
California considered a series of steps undertaken by California’s regulatory
agency to remove contaminated soil from the site of a lumber mill. 903 F. Supp.
at 1390. Those steps included: (a) the installation, in 1987 and 1988, of fences
around the contaminated areas; (b) the construction, in September 1988, of
temporary water and electrical infrastructure in preparation for the excavation
of the contaminated areas; and (c) the excavation of the contaminated areas
beginning in October 1988. Id. at 1390–91. There was no question that each of
these steps were undertaken to remediate the same problem, and to bring about
the same desired remedy, which the California Department of Toxic Substances
(the regulator in charge of overseeing the cleanup) had identified in its
Remedial Action Plan as the “excavat[ion] and remov[al] [of] the contaminated
soil from the site.” Id. at 1390. There was nothing to prevent the State of
California, which sought to recover the costs incurred by its regulator (under
the same CERCLA provision as asserted here by MPM) from bringing a cost-
recovery suit within six years of the “initiation of physical on-site construction”
53
of its overall remediation effort. Because California failed to bring the suit
within six years, it was not timely.
The situation considered in Colorado v. Sunoco involved cleanup activities
at a former gold mine site that contained contaminated water. 337 F.3d at 1237–
38. The EPA, together with the State of Colorado, took control of the site in 1992
to deal with multiple environmental threats, including (a) several adits (i.e.
horizontal mine openings for drainage) in the gold mine through which
“metal-contaminated, acidic water” drained out of the mine and into the
environment and (b) a “heap leach pad” containing waste treatment sludge
leftover from mining and waste treatment operations. Id. at 1236–38. The EPA’s
initial cleanup operations — undertaken in 1994 — included the improvement
of the water treatment systems that dealt with the contaminated water on the
“heap leach pad” and the plugging of the mine adits to prevent contaminated
water from leaking out of the mine. Id. at 1237. The EPA later determined that
a “permanent sludge disposal area” was required for disposal of the sludge
from the heap leach pad; it undertook construction of that disposal area
sometime between 1994 and 1996. Id. at 1238. It is clear that EPA undertook
each of these steps to deal with the set of issues it set out to remediate when it
54
took control of the site in 1992, and that each step was a phase in the regulator’s
effort to bring about its desired “permanent remedy.” 42 U.S.C. § 9601(24)
(defining “remedial action”). 38 There was no reason why the regulator could
not have brought its suit within six years of the commencement of its response
project in 1994; its failure to do so until 2001 meant that, as the Tenth Circuit
38The other appellate case cited by the NYSEG opinion, Kelley v. E.I. DuPont de Nemours and
Co., 17 F.3d 836 (6th Cir. 1994), followed a similar pattern. That case concerned a 34–acre
landfill polluted with large amounts of chemical waste contained in “open or sealed 55–gallon
drums.” Id. at 838. After determining that the drums contained hazardous waste and
detecting the presence of other hazardous substances in the groundwater, regulators
commissioned a contractor, Haztech, to remove surface waste from the site in October 1985.
Id. As part of that effort, Haztech removed several drums from the surface of a pond that
“contained bluish colored water.” Id. The regulator simultaneously hired a different
contractor to perform site evaluation activities, which revealed the presence of additional
solid waste in the blue-water pond in 1987. Id. at 839. After that discovery, the regulator hired
a different contractor, Inland Water, to perform further remediation work on the blue-water
pond, consisting of the removal of additional drums and 1,150 cubic yards of contaminated
soil. Id. As in Sunoco, there was no question that the 1985 and 1987 response projects were
directed at the same contamination problem and constituted different “phases” of the
response action required to bring about the regulator’s desired remedy.
The NYSEG opinion also cited Yankee Gas Servs. Co. v. UGI Utils., Inc., 616 F. Supp. 2d 228 (D.
Conn. 2009) in support of its single-remediation principle. However, while the court in that
case noted that “courts have generally held that there can be only one . . . remedial action per
facility, regardless of the number of phases in which the clean-up occurs,” see id. at 270, that
statement had no relevance to the court’s holding that several of the claims were time-barred
because, in that case, all of the response projects under consideration were commenced more
than six years before the plaintiff filed suit. See id. at 269 (noting that the plaintiff filed suit in
September 2006); id. at 271 (noting that the most recent response project at the Norwalk site
was commenced in 1999); id. at 274 (noting that the most recent response project at the
Willimantic site was commenced in 1997).
55
held, it would have lost the opportunity to take advantage of CERCLA’s cost-
recovery provisions for remediation. 39
In the circumstances of NYSEG (and in the precedents it cites), the single-
remediation principle was logical and fair, and it served the designs and
objectives of RCRA and CERCLA. Although it is a reliable prescription in the
great majority of cases, we do not believe that our NYSEG panel intended the
principle to control if the circumstances of a case would render it illogical and
unfair, and would defeat the statutory design or objectives.
The most obvious example of inappropriate application of the single-
remediation principle would arise when the subsequent remediation
undertakes to remediate a problem that did not exist at the time of the prior
remedial act. If, following a remediation, the operator of a site creates a
different contamination, caused by different processes and a different
39The Sunoco court ultimately disagreed with the district court’s characterization of the EPA’s
1994 installation of adit plugs as a “remedial action,” and held instead that those efforts were
properly characterized as a “removal action.” 337 F.3d at 1243. It remanded the question
whether the subsequent construction of a sludge disposal area was a removal or a
remediation. Id. at 1244–46. Because the court held that there was no prior remediation that
could have barred the regulator’s claim for recovery of its later incurred remedial costs, the
court’s statement that “there will be but one . . . ‘remedial action’ per site or facility,” id. at
1241, was dictum that played no role in the decision.
56
contaminating substance, and the burden of remediating that contamination
falls on a new owner that acquires the site many years later, there would never
be a moment when the new owner could sue to recover its response costs.
When such future contaminations occurred and became known, future owners
or operators would be compelled by CERCLA and RCRA to report the
discovery to government regulators and undertake any remediation that
regulators may deem necessary, see 42 U.S.C. § 9603(a) (requiring disclosure);
id. § 6924(u) (instructing regulators to “require[] corrective action for all
releases of hazardous waste”); see also MPM III, 2017 WL 6408611, at *21 (noting
that the RCRA permit for the Site required notification to regulators of newly-
discovered contamination within seven days), but any suit to recover the cost
of such remediation from the contaminator would be untimely by reason of a
prior remediation decades in the past that had nothing to do with the present
contamination, then as yet non-existent. We do not believe the NYSEG panel
intended its single-remediation principle to apply in such a circumstance.
A second less obvious but equally illogical and inappropriate example
would arise when a site operator discovers a previously unsuspected
contamination that was unrelated to, and perhaps far distant from, a
57
previously remediated contamination. Suppose, for example, that the owner of
a 10,000 acre site in 1990 completely remediated a chemical spill that it had
caused on a tiny corner of a site. Suppose further that another operator
acquired the site many years later and discovered a fifty-year-old
contamination, far distant from, and unrelated to the contamination that had
been remedied in 1990, and unsuspected at that time. If the single-remediation
principle were to be categorically applied, the new owner, although compelled
by law to report and remediate, would be unfairly precluded from utilizing
CERCLA’s cost-recovery mechanism to recover the necessary costs of cleanup
from the party responsible.
If, in a third scenario analogous to the present case, the original polluter
implemented an inadequate remediation pursuant to a regulatory approval
that was procured by inadequate disclosure, and then held the site for six years
after the misguided project began, a later owner who discovers the
contamination that the prior remediation failed to address would nevertheless
be obliged to disclose and remediate it, but could not recover its costs if the
single-remediation principle were applied. The original polluter would enjoy
an undeserved immunity as a result of its inadequate disclosure of what
58
needed to be remediated, and its retention of the site for six years after initiating
its incomplete remediation.
A categorical single-remediation principle, while logical for the
conventional pattern of cost-recovery suits, such as NYSEG, would frustrate
and defeat the efficacy of cost-recovery as an essential motivator in the
RCRA/CERCLA framework. Without access to cost-recovery suits against
contaminators, neither private parties nor regulators would be incentivized to
ensure that cleanups are conscientious and thorough. Cf. Key Tronic Corp. v.
United States, 511 U.S. 809, 819 n.13 (1994) (“CERCLA is designed to encourage
private parties to assume the financial responsibility of cleanup by allowing
them to seek recovery from others.” (internal quotation marks omitted)
(quoting FMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 847 (10th Cir. 1993))).
Worse still, an operator who, after taking ownership of a site, discovers
preexisting contamination, if deprived of access to cost recovery, might conceal
its discovery from regulators; if it disclosed the contamination, as CERCLA and
the site’s RCRA permit would require, see 42 U.S.C. § 9603(a); MPM III, 2017
WL 6408611, at *21, it may be required to undertake catastrophically costly
remediation at its own expense while the contaminator, which should bear the
59
costs, enjoys wholly unjustified immunity that results from overbroad
application of a notion invented by the courts. Overbroad application of the
single-remediation principle would accordingly undercut CERCLA’s manifest
purpose to “encourag[e] the timely cleanup of hazardous waste sites” by
private parties by “placing the cost of that cleanup on those responsible for
creating or maintaining the hazardous condition.” Consolidated Edison Co. of
New York, Inc. v. UGI Utils., Inc., 423 F.3d 90, 94 (2d Cir. 2005) (alteration,
brackets, internal quotation marks, and citation omitted); see also H.R. Rep. No.
99–253(III), 1986 U.S.C.C.A.N. 3038, 3038 (explaining that one of CERCLA’s
two primary goals is to “hold responsible parties liable for the cost of
[necessary environmental] cleanups”).
There is nothing in the words of the statute that invites a categorical
single-remediation principle. Although Sunoco (which NYSEG cited) tried to
find support within the statute’s wording, see 337 F.3d at 1241, the grammatical
principle that the court invoked would, under careful examination, support the
opposite conclusion. 40 Moreover, the fact that neither the statute, nor the
40 The pertinent sentence of § 9613(g)(2) reads:
60
[F]or a remedial action, [an initial action for recovery of costs must be
commenced] within 6 years after initiation of physical on-site construction of
the remedial action, except that, if the remedial action is initiated within 3 years
after the completion of the removal action, costs incurred in the removal action
may be recovered in the cost recovery action brought under this subparagraph.
The Tenth Circuit reasoned that the use of the definite article (“the”) in the second clause
foreclosed the possibility of multiple remedial actions at a site, noting “[i]f Congress intended
to allow multiple actions for separate components of recovery of remedy, it surely would
have used the indefinite article ‘a’ rather than the definite article ‘the’ to modify the phrases
‘removal action’ and ‘remedial action.’” Sunoco, 337 F.3d at 1241. This puts more weight on
the choice of article than the choice can bear. In any event, this overlooks the fact that, in the
first usage of the term “remedial action,” the term is preceded by the indefinite article (“a
remedial action”). The use of the definite article (“the”) in a subsequent reference to “remedial
action” means that the subsequent reference is to the same “remedial action” as was
previously mentioned. Suppose that one writes, “When interpreting a statute, courts must
focus on the statute’s text.” The definite article (“the”) is used in the second reference to
“statute.” But the first reference used the indefinite article (“a”). The use of “the” in the second
reference means only that the second reference is to the previously mentioned statute. It does
not mean that there can be but one statute to which the statement applies. The use of “the
remedial action” in our statute’s second reference serves the same function as using “it” to
refer to the earlier mentioned remedial action. If Congress had used “the” in its first reference
to “remedial action,” that would have given arguable support to the Sunoco reasoning, but
use of “the” following an introductory reference to “a remedial action” gives no support
whatsoever. If anything, it demonstrates the contrary.
Moreover, the language on which the Tenth Circuit relied was not included in the CERCLA
bill enacted in 1980, which implemented the definition of “remedial action” that remains in
force today. That language was enacted six years later, as a part of SARA. See Pub. L. No. 99–
499 (1986). There is no indication that Congress intended this part of SARA, which was
evidently intended to create a statute of limitations for CERCLA cost-recovery claims where
none existed before, see Section-by-Section Analysis: EPA’s Proposed Amendments to CERCLA,
99th Cong. 1st Sess, 131 Cong. Rec. 200000-25, 1985 WL 700809, at *28 (Feb. 22, 1985), to modify
the definition of “remedial action” it had enacted six years earlier so as to foreclose the
possibility of multiple remedial actions. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468
(2001) (“Congress . . . does not alter the fundamental details of a regulatory scheme in . . .
ancillary provisions—it does not, one might say, hide elephants in mouseholes.”).
61
implementing regulations define the term “site” means that it can be applied
to large areas, exacerbating the problems that could result from overly broad
application of the concept.
For the reasons explained above, we understand the single-remediation
principle stated in NYSEG to mean that, when a remediation is undertaken
under a remediation plan based on full disclosure of the known problem,
successive remedial steps undertaken in furtherance of the original objective
are part of a single remediation for purpose of the statute of limitations, so that
the remediator may not delay suit by classifying subsequent stages of
remediation of the original problem as new remediations. See NYSEG, 766 F.3d
at 236. In that sense, there can be “only be one remedial action at a site” with
respect to the particular contamination addressed and remedy conceived. Id.
When, as in NYSEG, the contamination to be addressed arises from a single
source, and the operator undertakes to remedy that “underlying source of []
contamination,” 766 F.3d at 233 (citation omitted), the distinct steps taken in
furtherance of that objective will constitute a single remediation. But a
subsequent remediation, undertaken to address a different source of
62
contamination outside the scope of the prior remediation, may constitute a
separate and distinct remediation for statute of limitations purposes.
This interpretation comports more closely to the language and structure
of the statute. CERCLA defines a “remedial action” as “those actions consistent
with [a] permanent remedy . . . in the event of a release or threatened release of a
hazardous substance into the environment.” 42 U.S.C. § 9601(24). This language
indicates that the term “remedial action” refers not to any remedial activity
undertaken on a particular site, but instead to remedial steps intended to deal
with a particular “release or threatened release of a hazardous substance.” Id;
see also S. Rep. No. 96–848 at 54 (July 11, 1980) (“Remedial action may be taken
in response to a discharge, release, or a significant threat of discharge[,] release,
or disposal of a hazardous substance.”).
CERCLA’s implementing regulations confirm this understanding:
typically, remediations are only undertaken after a lengthy process of data
collection, the goal of which is to produce a comprehensive description of the
“history/nature of waste handling” at the site and a “description of known
contaminants.” See 40 C.F.R. § 300.420(c); id. 300.430(b). After the operator and
the regulator obtain a comprehensive view of the “scope and complexity of the
63
site problems being addressed,” id. § 300.430(a)(1)(ii)(C), the parties analyze
alternative courses of action, conduct feasibility studies, and select a remedy.
See generally id. § 300.430. It follows that the remediation that emerges from this
process, while designed to be a “final, once-and-for-all cleanup of a site,”
NYSEG, 766 F.3d at 236, is necessarily limited in scope to those problems
revealed during the remedial investigation. A subsequent remediation that
seeks to address a different set of problems — e.g. problems that were non-
existent, unknown, elsewhere, or undisclosed to the regulators and unrevealed
in an earlier remediation plan — should not be considered part of the same
remediation. 41
In deciding whether to characterize a later remedial activity, for statute
of limitations purposes, as a continuation of previously conducted
41 An explicit statement in NYSEG tends to confirm that the opinion did not intend its
generalization to apply to the circumstances outlined above. The opinion conceived the
single-remediation principle as designed to serve logic and fairness. Its statement that “it
would not be logical — or fair — to subject [a potentially responsible party] to additional
CERCLA lawsuits seeking yet additional permanent relief” after that potentially responsible
party has already completed a remediation, 766 F.3d at 236, makes good sense when applied
in the circumstances of NYSEG and the cases cited in that opinion. But in the different
circumstances described above in this opinion, it would be the application of the single-
remediation principle that would cause unfairness. The fact that NYSEG saw the idea as one
serving fairness reinforces the suggestion that NYSEG did not intend its application in
circumstances where, rather than protect against unfairness, it would cause unfairness.
64
remediation, or as a separate and distinct remediation entitled to a new six-
year period for cost recovery, a helpful inquiry would be to examine whether
the recent action (sought by the remediator to be characterized as a new
remediation) falls within the remedial scope of the previous remediation as
revealed in the record before the regulatory agency. In many cases, the record
of the correspondence between the regulatory agencies and the original
remediators will reveal much about the nature and scope of the problem to be
remediated as it was initially conceived. See 40 C.F.R. § 300.430(f)(5)(i) (“To
support the selection of a remedial action, all facts, analyses of facts, and site-
specific policy determinations considered in the course of carrying out
activities in this section shall be documented, as appropriate, in a record of
decision . . . .”). CERCLA and its implementing regulations make clear that
remediation requires “characteriz[ing] the nature of and threat posed by the
hazardous substances,” including the “general characteristics of the waste,
including quantities, state, concentration, toxicity, propensity to
bioaccumulate, persistence, and mobility,” in addition to analyzing various site
characteristics, to “conduct a site-specific baseline risk assessment.” Id.§ 300.430(d)(2), 300.430(d)(4). An assessment of the documentary record
65
associated with the prior remediation will often show whether subsequent
action is a continuation of it or distinct in its remedial purpose and scope.
When, for example, the record reveals that the more recent remediation
addresses a different problem than the previous remediation, e.g., a “release or
threatened release of a hazardous substance” that was unrecognized or had not
even occurred at the time of the previous remedial activity, that would suggest
that the recent remediation should be treated as a new and distinct remediation
for statute of limitations purposes. 42 On the other hand, the more the agency
record shows that the recent remedial activity seeks to bring about essentially
the same “permanent remedy” of the same problem as was the goal of the prior
remediation, the more appropriate to consider the recent remediation as a
continuation of the prior remediation. NYSEG, 766 F.3d at 235. (As we
recognized in NYSEG, the possibility that technological advancement may
42See, e.g., Valbruna Slater Steel Corp. v. Joslyn Mfg. Co., No. 1:10-cv-044, 2013 WL 1182985, at
*12 (N.D. Ind. Mar. 21, 2013) (finding that a recent remedial action was “distinct from the
remedial project undertaken by [a previous owner] over the last decade” because the previous
project “dealt primarily with RCRA compliance in two small areas that comprised only a
fraction of the whole Site, not with overall CERCLA compliance at the whole Site, as the
current remedial plan does,” and were carried out “before the current Site-wide remedial
action was even found to be necessary”).
66
reveal new methods of remediating a particular contamination problem would
not necessarily create the opportunity to pursue such methods as a distinct
“remedial action,” particularly if those methods undertake to solve the same
problems already addressed by the prior remediation. NYSEG, 766 F.3d at 236
(“[W]e recognize that what seems final at a given point in time might come to
appear inadequate at a later date as scientific knowledge progresses.”).)
We conclude that the district court’s reliance on the single-remediation
principle asserted in NYSEG did not necessarily support its conclusion that
MPM’s cost recovery action was untimely. We vacate the judgment and
remand for further consideration. Consistent with our discussion above, the
district court’s analysis on remand should address whether MPM’s remedial
activity addressed to buried PCBs is part of the remediation begun by UCC in
the 1990s, such that the instant suit filed in 2011 is untimtely, or should be
deemed a separate and distinct remediation, entitled to a new six-year
limitation period.
ii. Future Removal Costs
With respect to removal costs MPM may incur in the future, UCC
challenges the district court’s declaratory judgment that UCC is liable for at
67
least a share, as well as its allocation of 95% of those costs against UCC. UCC
argues first that the possibility of future removal costs is too remote to present
a constitutionally ripe controversy as to its liability for those costs, UCC Br. at
44–48; second, that the circumstances are “too speculative” to present a ripe
controversy over the allocation of future costs, id. at 48–55; and, third, that cost
allocation is not “prudentially ripe” because the issue would “benefit from []
further factual development” and because “[d]eferring allocation of
hypothetical future removal costs would impose no real hardship on MPM,”
id. at 55–56 (citation omitted). 43 We disagree.
43UCC further argues that, while § 113(g)(2) of CERCLA does require a court to issue “a
declaratory judgment on liability for response costs,” the statute does not require a
declaration of “future allocation when a party is found liable for past response costs.” UCC
Br. at 57. UCC further argues that the district court’s decision to issue such a declaration was
an abuse of discretion under the Declaratory Judgment Act because that declaration neither
“serve[s] a useful purpose” nor would it “finalize the controversy and offer relief from
uncertainty.” Id. (quoting Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003)). For
the reasons stated in this subsection, we reject UCC’s argument.
Moreover, UCC argues that the district court abused its discretion by failing to include in its
declaratory judgment a contingency provision which would authorize the parties to relitigate
the allocation if “new facts or future events render the current division inequitable,” citing to
the Third Circuit’s decision in Beazer East, Inc. v. Mead Corp., 412 F.3d 429, 449 (3d Cir. 2005)
(noting that “[s]uch contingency provisions are generally favored in CERCLA contribution
actions”). UCC Br. at 57–58. MPM points out, MPM Reply Br. at 39–40, that the Third Circuit
held that such a provision would be appropriate in Beazer because, in that case, both the
plaintiff and the defendant were potentially responsible for the contamination, and that the
district court’s “allocation would no longer be fair if any required remediation is primarily or
68
a. Constitutional ripeness
First, we find neither error nor abuse of discretion in the district court’s
conclusion that the liability and allocation issues were constitutionally ripe for
review due to the very high likelihood that MPM will incur future response
costs. MPM III, 2017 WL 6408611, at *16–17. The doctrine of constitutional
ripeness is “drawn from Article III limitations on judicial power” and
“prevents a federal court from entangling itself in abstract disagreements over
matters that are premature for review because the injury is merely speculative
and may never occur.” In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liability
Litig, 725 F.3d 65, 110 (2d Cir. 2013) (citations omitted). 44 There is no merit to
UCC’s contention that it is speculative whether MPM will incur costs to deal
with the PCB contamination it has uncovered at the Site. To the contrary, it is
exclusively directed to those areas of the Site where [the plaintiff] is responsible for the
majority of the contamination.” Beazer, 412 F.3d at 449 (quotation marks omitted). We agree
that Beazer involved drastically different circumstances and that here, because UCC is the
only party responsible for PCB contamination at the Site, and because no future developments
will alter that fact, the district court did not abuse its discretion by failing to include such a
contingency provision. But see infra at 80–81.
44A request for a declaratory judgment is constitutionally ripe for review when “there is a
substantial controversy, between parties having adverse legal interests, of sufficient
immediacy and reality.” Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 388
(2d Cir. 2005) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).
69
undisputed that MPM plans to continue with its wastewater treatment facility
upgrade, which will “require that MPM respond appropriately to PCBs in the
soils” in that area. MPM III, 2017 WL 6408611, at *17. 45 MPM submitted a plan
for PCB management during its wastewater treatment upgrade, which
anticipates the necessity of the disposal of contaminated soil, along with other
measures intended to “minimize the risk of spreading contamination,” and the
WVDEP has approved that plan. There is a substantial likelihood that,
depending on how these plans progress, at least some actions MPM will
undertake to deal with UCC’s contamination of the Site — the extent of which
is currently “unknown” — will be “clean-up measures taken in response to
immediate threats to public health and safety,” which are properly
characterized as removals. NYSEG, 766 F.3d at 230–31. 46 Accordingly, we
45That neither WVDEP nor the EPA have yet required MPM to undertake any response
project in response to its discovery of PCB-contaminated soil at the site does not make the
possibility of MPM’s expenditure of future costs speculative. See Cadillac Fairview/California v.
Dow Chemical Co., 840 F.2d 691, 696 (9th Cir. 1988) (“The absence of a government enforcement
action under CERCLA does not render the controversy between the party seeking declaratory
relief and the party who owned the site at the time of the hazardous waste disposal remote
and hypothetical.”).
46UCC also argued that MPM’s only concrete plan for future response activity at the site — a
soil management plan regarding the “proper handling, characterization and disposal of
potentially impacted soil” in work areas around the wastewater treatment unit — would be
70
conclude that the district court did not exceed its Article III jurisdiction in
adjudicating UCC’s liability for the future removal costs that MPM is likely to
incur. See Kelley v. E.I. DuPont du Nemours and Co., 17 F.3d 836, 844–45 (6th Cir.
1994) (rejecting the argument that the district court’s declaration of future
liability for cleanup costs was improper because “the wide-ranging
contamination [at the relevant site] makes it more certain than speculative that
the [claimant] will have to expend resources in the future”). 47
b. Prudential ripeness
a remediation (not a removal), and that the likelihood of MPM undertaking that remediation
is irrelevant to the question whether MPM was likely to incur future removal costs. We
disagree, in part because (as expressed above) the circumstances indicate a substantial
likelihood that MPM will incur removal costs in the future. Additionally, we agree with
MPM’s argument that it should not be required to prove definitively, at this stage in the
litigation, that the future costs it will likely incur would necessarily be characterized as
removals in order to establish that its demand for a declaratory judgment as to UCC’s liability
for future removal costs is ripe. MPM Reply Br. at 30–31. As noted above, the classification of
an action as a removal or a remediation is subtle and fact-intensive; requiring a plaintiff
contemplating future response action to prove definitively that such action will be in the
nature of removal rather than remediation in order to invoke the court’s subject matter
jurisdiction would be inconsistent with governing precedent that a “risk of real harm” is
sufficient to invoke a federal court’s subject matter jurisdiction. See Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1549 (2016).
47 In support of its argument, UCC argues that “[t]o establish a constitutionally ripe
controversy . . . MPM [] must show that its future removal costs are certainly impending,” citing
to the Supreme Court’s decision in Clapper v. Amnesty International USA, 568 U.S. 398, 409–10
(2013). UCC Br. at 45–47 (emphasis added). This is a misreading of Clapper. The Supreme
Court in that case — and in future rulings — clarified that a “substantial risk” of harm will
suffice to meet Article III’s case or controversy requirements. Clapper, 568 U.S. at 414 n.5; see
also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
71
The district court also correctly concluded that the issue of UCC’s
liability and responsibility for MPM’s future response costs was prudentially
ripe. The doctrine of prudential ripeness requires a court to ask “whether the
claim is fit for judicial resolution” and “whether and to what extent the parties
will endure hardship if decision is withheld,” and permits a court to decline to
exercise its jurisdiction upon determining that “the case will be better decided
later.” MTBE, 725 F.3d at 110 (brackets and citations omitted). The district court
determined that the issue was fit for judicial resolution because the evidence
necessary to determine UCC’s responsibility for MPM’s future response costs
was “before the Court and unlikely to change.” MPM III, 2017 WL 6408611, at
*18. In particular, the court noted that “the two factors that weigh most heavily
in [its] allocation of responsibility in this case — UCC’s status as the sole entity
responsible for using and disposing of PCBs at the Site and MPM’s delay in
reporting its discovery of PCBs to environmental regulators — are settled.” Id.Further, the district court determined that it would be “unjust” to “require
MPM to wait for allocation until MPM has ascertained [the extent of its] future
PCB response costs,” given the “considerable” cost and time the parties had
spent litigating this case, and that determining the parties’ respective financial
72
responsibility for future cleanup costs without delay — as CERCLA requires
— would “advance CERCLA’s ‘dual goals of cleaning up hazardous waste and
holding polluters responsible for their actions.’” Id. (quoting NYSEG, 766 F.3d
at 220).
UCC argues that the issue is not fit for resolution because “many facts
relevant to the parties’ relative responsibility for future removal costs are
inherently unknowable and subject to substantial uncertainty” as “many of the
circumstances of a future cleanup are unknown.” UCC Br. at 49–51. 48 UCC
further points to several specific uncertainties which, in its view, should
preclude a determination of cost allocation, including (a) the “extent or impact”
48UCC contends that, in New York v. Solvent Chemical Co., 664 F.3d 22 (2d Cir. 2011), we held
that “when a cleanup is in progress, allocation should be deferred until ‘the uncertainties
regarding ongoing response costs have been resolved.” UCC Br. at 49–50 (quoting Solvent
Chemical, 664 F.3d at 27). UCC’s argument mischaracterizes our holding. In that case, the
district court had declined to issue a declaratory judgment as to the parties’ respective liability
for future response costs “chiefly because the allocation of future costs would be premature.”
Solvent Chemical, 664 F.3d at 24 (emphasis in original); see also New York v. Solvent Chemical Co.,
Inc., 685 F. Supp. 2d 357, 455–56 (W.D.N.Y. 2010) (declining to allocate future costs for lack of
sufficient data, and because regulators were “still considering alternative remedial
proposals”). This court reversed in part, holding that the district court abused its discretion
by declining to issue a declaratory judgment as to liability, but did not require the district
court to issue a cost allocation order. 664 F.3d at 26. That holding does not in any way establish
that the court may not issue a cost allocation order “when a cleanup is in progress,” UCC Br.
at 49–50, particularly when the district court is satisfied that all the evidence required to issue
such an order is before the court and “unlikely to change.” MPM III, 2017 WL 6408611, at *18.
73
of MPM’s delay in addressing the PCB contamination, (b) the extent of MPM’s
future cooperation with regulators, (c) the extent to which MPM will benefit
economically from its future cleanup efforts, (d) the extent to which MPM is
and will be responsible for “secondary disposal” of excavated contaminated
material at the site, and (e) whether OSi/Crompton will indemnify MPM for
any of its future response costs. UCC Br. at 51–54. UCC further asserts that
MPM’s “future removal actions [] may well never occur,” arguing that
resolution of its responsibility should wait “at least until (if ever) a concrete
plan exists to conduct a removal action and more is known about the attendant
circumstances.” Id. at 56.
We are not persuaded. CERCLA provides a district court tasked with
allocating responsibility for cleanup costs between potential responsible
parties with “broad discretion to balance the equities in the interests of justice,”
and “does not limit courts to any particular list of factors” to consider when
making that determination. Bedford Affiliates v. Sills, 156 F.3d 416, 429 (2d Cir.
1998), overruled on other grounds by W.R. Grace, 559 F.3d at 89–90. The district
court was clear that the two factors on which it primarily relied were (a) UCC’s
sole responsibility for the PCB contamination at the Site, and (b) MPM’s delay
74
in cooperating with regulators after its discovery of PCB-contaminated soil.
MPM III, 2017 WL 6408611, at *18. The district court found that the evidence
supporting these two determinative factors was “unlikely to change.” Id. The
district court had a sound basis for concluding that UCC’s insistence on
uncertainties was exaggerated and did not call for delay in adjudicating
allocation. Id. 49
As to the “hardship” element of prudential ripeness, MTBE, 725 F.3d at
110 (instructing courts to determine “whether and to what extent the parties
will endure hardship if decision is withheld”), UCC argues that “[d]eferring
allocation of hypothetical future removal costs would impose no real hardship
on MPM” because “[i]f MPM ever does develop a concrete plan beyond [its Soil
Management Plan], it can seek an allocation then.” UCC Br. at 56–57. This
49For this reason, cases like Port of Portland v. Union Pacific Railroad. Co., No. 98-cv-886, 2001
WL 36135190 (D. Or. Mar. 26, 2001) and Georgia-Pacific Consumer Products. LP v. NCR Corp.,
358 F. Supp. 3d 613 (W.D. Mich. 2018), in which courts have declined to allocate costs due to
the inadequacy of the factual record to make that determination, have no bearing on this case.
See Georgia-Pacific, 358 F. Supp. 3d at 645 (declining to issue a declaration of financial
responsibility for future cleanup costs where there were four potentially liable parties, each
of whom contributed to pollution in different areas, because “[t]here is a high level of
uncertainty as to the shape of what remedies will actually apply, and no real basis to assess
costs”); Union Pac., 2001 WL 36135190, at *10 (declining to issue declaratory relief as to cost
responsibility because of the “site’s long history and many possible sources of contamination”
at the site).
75
argument does not answer the district court’s determination that delaying
determination of the allocation issue “until after MPM is again engaged in PCB
cleanup” would be “unjust” and “wasteful” because of the “considerable” cost
and time that have been spent in litigating the case. MPM III, 2017 WL 6408611,
at *18 (“Determining allocation will save the litigants in this case substantial
time and money . . . .”). Moreover, UCC does not challenge the district court’s
determination that finalizing the issue of cost allocation — which, in its sensible
view, it was fully capable of doing after the evidence presented at trial —
would advance CERCLA’s ultimate goals. Id. 50
As the district court pointed out, its declaration of liability for and
allocation of MPM’s future response costs does not directly establish any
50CERCLA requires the court to “enter a declaratory judgment on liability for response costs
or damages that will be binding on any subsequent action or actions.” 42 U.S.C. § 9613(g)(2);
see also Solvent Chemical, 664 F.3d at 25 (noting that CERCLA requires “a declaratory judgment
award dividing future response costs among responsible parties” (quoting Goodrich Corp. v.
Town of Middlebury, 311 F.3d 154, 175 (2d Cir. 2002)); see also Dent v. Beazer Materials & Servs.,
Inc., 156 F.3d 523, 531–32 (4th Cir. 1998) (“Even if multiple response costs actions exist or
might exist, the court in the first action to reach decision [in liability] is required to enter
judgment as to liability for the site.” (citing 42 U.S.C. § 9313(g)(2))). This requirement
“ensure[s] that a responsible party’s liability, once established, [will] not have to be
relitigated.” New York v. Green, 420 F.3d 99, 111 (2d Cir. 2005) (citation omitted). Moreover,
we have said that “[t]he fact that future costs are somewhat speculative is no bar to a present
declaration of liability.” Id. (citation omitted).
76
financial liability. The court’s order “[left] open [] the issue of whether any costs
MPM incurs in responding to PCBs are recoverable under CERCLA,” so that
“if and when MPM brings an action to recover future removal costs, UCC will
be entitled to raise appropriate objections.” MPM III, 2017 WL 6408611, at *18.51
What the district court’s order did finalize was that, by reason of UCC’s sole
responsibility for the substantial levels of PCB contamination at the Site, it is
responsible (notwithstanding MPM’s delay) for 95% of the cost of any
appropriate, CERCLA-compliant removals designed to address that
contamination. As explained below, that conclusion was well supported by the
record, and the district court was under no obligation to delay decision and
require the parties to come back to court at some future date to litigate the
allocation of financial responsibility for UCC’s pollution.
c. Future removal cost allocation
51See also Green, 420 F.3d at 111 (noting that a party may raise objections to an action seeking
recovery of CERCLA costs under a previously-issued declaratory judgment, including
objections on the basis that the costs incurred were “inconsistent with the national
contingency plan” or that the claimed costs were not actually incurred); Cadillac Fairview, 840
F.2d at 695 (rejecting the argument that a declaration of liability for future costs would require
the defendant to be “forced to pay for cleanup actions that are inadequate or ill-conceived”
because, to recover costs under CERCLA, “the party undertaking the response action must
prove that the costs it incurred were ‘necessary’ and that it incurred those costs in a manner
‘consistent with the national contingency plan’” (quoting 42 U.S.C. § 9607(a)(4)(B))).
77
UCC further argues that the district court’s decision to allocate 95% of
MPM’s future removal costs to UCC was an abuse of discretion. UCC Br. at 58–
70. The thrust of UCC’s argument is that the district court did not afford
sufficient weight to several factors on which other courts have relied when
making similar allocation determinations. UCC argues that the district court
failed to take into account (a) that MPM assumed the risk of future cleanup
costs by purchasing the Site without fully investigating potential
contamination there, id. at 59–61, (b) that, by virtue of the documents MPM
received before executing its purchase of the site, it was on objective notice of
the PCB contamination, which should warrant a higher allocation to MPM
under the doctrine of caveat emptor, id. at 62–67, and (c) the possibility that
“future PCB cleanups . . . could result in substantial economic benefits to
MPM,” id. at 68–69. 52
52UCC also argues that the district court did not properly consider the “timeliness of future
removal actions, MPM’s aggravation of contamination or proximate cause of removal costs,
and MPM’s invocation or waiver of its indemnity from Crompton,” and that the district court
improperly disregarded its argument that MPM’s planned cleanup work under its Soil
Management Plan is motivated by “commercial” considerations and does not aim to
permanently cleanup PCB contamination at the site. UCC Br. at 68–70.
78
A district court’s allocation of response costs under CERCLA is reviewed
for abuse of discretion. Goodrich Corp. v. Town of Middlebury, 311 F.3d 154, 168–
69 (2d Cir. 2002); see also United States v. Consolidation Coal Co., 345 F.3d 409, 412
(6th Cir. 2003) (same). The allocation of CERCLA response costs is an
“equitable determination based on the district court’s discretionary selection of
the appropriate equitable factors in a given case.” Goodrich, 311 F.3d at 170. The
statute does not require district courts to consider or give weight to any
particular allocation factor, but rather permits the court to determine which
factors are most relevant to a given case. NCR Corp. v. George A. Whiting Paper
Co., 768 F.3d 682, 700 (7th Cir. 2014) (“[W]e have stressed that the district court’s
discretion [in allocating CERCLA costs] is broad, both when it determines how
much weight to place on any given equitable factor before the court, and also
when it chooses which factors are pertinent at all for the case before it.”). 53
53Courts often apply a set of factors taken from a document produced during the legislative
debate over CERCLA, which include “the ability of the party to demonstrate that his
contribution to the release [of a hazardous waste] can be distinguished [from the contribution
of other parties],” “[t]he amount of hazardous waste involved,” “the degree of toxicity of
hazardous substance involved,” “the degree of involvement of the person in the manufacture,
treatment, transport, or disposal of the hazardous substance,” and “the degree of cooperation
between the person and the Federal, State or local government in preventing harm to public
health or the environment.” Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112,
79
UCC’s argument that the district court should have assigned more weight to
certain allocation factors is therefore unavailing. UCC does not argue that the
district court’s cost allocation “rests on an error of law (such as application of
the wrong legal principle) or a clearly erroneous factual finding,” and it is clear
that the court’s decision was “within the range of permissible decisions.”
Goodrich, 311 F.3d at 169. Accordingly, we conclude that the district court did
not abuse its discretion in allocating 95% of MPM’s future removal costs to
UCC. By affirming the district court’s grant of declaratory judgment on future
removal cost allocation, we do not imply, much less rule, that the district court
would be barred from reconsidering its allocation on the basis of new events or
discoveries that would make the present anticipatory allocation inappropriate.
Nor does this discussion constitute a ruling that such reconsideration of the
130 (2d Cir. 2010) (quoting S. Rep. No. 96–848, at 345–46 (1980)). However, as stated above,
the statute “does not limit courts to any particular list of factors, nor does the [statute] direct
the courts to employ any particular test.” Envtl. Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503,
507 (7th Cir. 1992).
80
allocation would be permitted. Our purpose is to leave the question open,
expressing no view either way. 54
C. CONCLUSION
For the foregoing reasons, we VACATE the district court’s July 7, 2016
grant of partial summary judgment holding that MPM’s claim for recovery of
remediation costs is time-barred under 42 U.S.C. § 9613(g)(2), AFFIRM the
district court’s September 22, 2017 order holding that UCC is liable to MPM for
95% of future removal costs, and REMAND for further proceedings consistent
with this order.
54MPM also appeals from the district court’s September 22, 2017 order on the basis that the
district court erred in failing to allocate future remedial action costs. MPM argues that, if this
court concludes that its claims for recovery of remedial action costs are not time-barred, it
should direct the district court to enter a judgment allocating the costs of any future remedial
action according to the same allocation the district court applied to future removal costs in its
September 22, 2017 order. MPM Br. at 54. We need not consider this argument because, while
we hold that the district court’s analysis of the statute of limitations issue was flawed, we do
not hold that MPM’s claims are necessarily timely, but instead remand to the district court
for further consideration of that issue consistent with this opinion.
81