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New York v. Next Millennium Realty, LLC

ELR Citation: 43 ELR 20229
Nos. 12-2894-cv, (2d Cir., 10/16/2013)

The Second Circuit vacated and remanded a lower court decision dismissing as time barred New York's CERCLA claims against several defendants for costs a town incurred investigating and addressing groundwater contamination stemming from the New Cassel Industrial Area. The lower court held that the state's claims were barred by the six-year statute of limitations governing suits to recover costs for remedial actions under CERCLA §113(g)(2)(B), which is triggered by the commencement of cleanup construction. Because that construction began more than six years before suit was brought, the court dismissed the case. On appeal, the state argued that the cleanup activities in question are removal actions—that is, measures taken to address immediate threats to public health. Unlike remedial actions, suits to recover costs for removal actions are governed by a three-year statute of limitations, which is triggered by the completion of the removal action. The state therefore claimed that because the removal measures had not been completed when it filed suit, the suit was timely. The appellate court agreed. The cleanup activities were implemented as removal measures and continued to be removal measures at all relevant times. They were taken to respond to the immediate health concerns presented by contaminated well water while the town investigated the source of the contamination and sought to develop a more coherent and fuller response to eliminate permanently the underlying source of the contamination. Accordingly, the lower court erred in applying the statute of limitations for remedial rather than removal actions.