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New York v. Next Millennium Realty, LLC

ELR Citation: 46 ELR 20032
Nos. 06-CV-1133, (E.D.N.Y., 02/09/2016) (Feuerstein, J.)

A district court held that New York may seek response costs and natural resource damages under CERCLA in connection with a contaminated industrial site in Long Island, a portion of which was listed on the NPL in 2011. The state's past response actions at the site were consistent with the national contingency plan. In addition, the defendants are liable under CERCLA §107(a) for response costs incurred by the state in responding to contamination at and emanating from the site, specifically into the off-site area referred to as "state operable unit 3/EPA operable unit 1" (state OU-3/EPA OU-1), which was listed on the NPL in 2011. The court also held the defendants liable for natural resource damages sought as compensation for the injury to the groundwater at the site and off-site area, including the reasonable costs of assessing such injury, under CERCLA §107(a) and §113(g)(2). The defendants argued that the listing of state OU-3/EPA OU-1 on the NPL in 2011, approximately 5 years after the state commenced this action and 16 years after the state discovered the contamination, did not revive the state's natural resource damages claim, which was already time barred under CERCLA §113(g)(1)(A). But under the plain language of CERCLA §113(g)(1), with respect to any facility listed on the NPL, a natural resource damages claim is timely so long as it is commenced within three years after the completion of the remedial action, notwithstanding that such claim would have been untimely under §§113(g)(1)(A) and (B) at the time the facility was listed on the NPL.