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Second Circuit Clarifies That There Can Be More Than One Remedial Action Under CERCLA For Statute of Limitations Purposes

In MPM Silicones, LLC v. Union Carbide Corporation, the U.S. Court of Appeals for the Second Circuit held that there can be more than one “remedial action” at a site under certain circumstances for the purpose of determining the statute of limitations under CERCLA. Dkt. No. 17-3468(L), 17-3669(XAP) (2d Cir. 2019). The decision clarified a statement in a prior decision by the Second Circuit that had suggested otherwise.

The dispute involved a cost recovery action by MPM Silicones, LLC (“MPM”) against Union Carbide Corporation (“UCC”) relating to the Sistersville Site in West Virginia (the “Site”). UCC had used the Site for industrial operations from 1955 to 1993. During the 1990s, UCC engaged in several corrective actions to address contaminants in groundwater and soil in various parts of the Site. None of these corrective actions addressed PCBs. In 1993, UCC sold the Site to another party.

In 2003, MPM’s predecessor acquired the Site. A few years after acquiring the Site, MPM discovered extensive PCB contamination, which appeared to be the result of UCC’s historical use of PCBs at the Site. MPM then engaged in extensive investigation activities to identify the extent of the PCB contamination and excavated some of the PCB-containing soils. MPM anticipates more excavation work before the remediation is complete.

In 2011, MPM filed suit against UCC seeking reimbursement for past cleanup costs and a declaratory judgment for any future cleanup costs. Before the trial court, UCC argued on summary judgment that MPM’s claim for reimbursement of past remediation costs were time-barred by the 6-year statute of limitations for remedial action because of the previous corrective action at the Site during the 1990s. The district court agreed, relying on an earlier decision by the Second Circuit in which the court stated that “there can only be one remedial action at any given site.” New York State Elec. & Gas Corp. v. FirstEnergy Corp., 766 F.3d at 235 (2d Cir. 2014) (NYSEG).

On appeal, the Second Circuit held that the district court misconstrued the statement in the NYSEG decision because there are circumstances when there might be more than one remedial action at a Site under CERCLA. The court provided several examples. If, for example, the operator of a site completes remediation but then creates new contamination through a different process involving a different contaminant at the same site, the subsequent cleanup might not be considered the same remedial action. Likewise, if as here, an operator implemented an inadequate remediation based on a regulatory approval that was obtained without adequate disclosure, then a later owner who engages in remediation activities to address the undisclosed contamination is not necessarily continuing the same remediation project.

Accordingly, the Second Circuit vacated the district court’s decision and remanded the case to the district court to assess whether MPM’s remedial activities to address PCB contamination should be deemed a separate and distinct remediation from UCC’s prior remedial activities.