This post was written by MGKF summer associate Kennedy Reardon

On July 17, 2025, the Second Circuit issued an opinion in ELG Utica Alloys, Inc. v. Niagara Mohawk Power Corp. affirming an order granting summary judgment against ELG Utica Alloys, Inc.’s (“ELG”) in its CERCLA cost recovery suit, on the grounds that the applicable six-year statute of limitations had expired.  The decision is significant because it establishes a rule in the Second Circuit that, for a multi-phase remediation involving a single source of contamination at a single “facility,” the statute of limitations begins to run at the initiation of the first phase of cleanup.

In the late 1970s, the New York Department of Environment Conservation (“DEC”) discovered that ELG’s 23-acre scrap metal recycling site in Utica, New York, was contaminated with polychlorinated biphenyls (PCBs) and trichloroethylene (TCE). At the time, the site was operated by Utica Alloys, Inc. and Universal Waste Inc.  The two companies, which eventually merged to form ELG, had common ownership and management and coordinated site activities. 

In 1993, the companies and DEC agreed to investigate and remediate the site. To facilitate a phased approach, DEC agreed to bifurcate the site into two parts: the Utica Alloys site and the Universal Waste site. In 1999, the companies entered into a consent order with the DEC to perform a remedial investigation and feasibility study (“RI/FS”) and perform interim remedial measures (“IRMs”) at the Utica Alloys site.  In 2007, ELG implemented an IRM which included soil excavation and groundwater extraction.   In 2012 DEC notified ELG, among others, that it was a responsible for contamination at the Universal Waste site.  In 2015, DEC and ELG entered a consent order in which ELG agreed to perform an RI/FS and IRMs at the Universal Waste site.  ELG began implementation of the IRMs and continues to remediate the Universal Waste site.   

In 2016, ELG filed an action under CERCLA Sections 107(a) and 113(f)(1) seeking contribution for the costs of remediation at the Universal Waste site against a group of former customers (“Customers”) in the United States District Court for the Northern District of New York. The Customers moved for summary judgment arguing that the statute of limitations for claims related to remediation of the entire site began to run when the 2007 remediation at the Utica Alloys site was initiated, thus the 2016 lawsuit was barred by the six-year statute of limitations.

The Second Circuit agreed with the Customers, ruling that both the Utica Alloys and Universal Waste sites constituted a single “facility” under CERCLA. Therefore, the statute of limitations for claims arising from the remediation of the entire site began to run in 2007. The court reasoned that: (a) the contamination stemmed from a single source and extended throughout the whole site and (b) the sites had been owned and operated by a single entity since at least 1984 and were used for a single purpose. The court viewed DEC’s bifurcation of the site in 1998 as an administrative convenience which was agreed to upon ELG’s request to speed up remediation, not to separate the two sites for legal purposes.

The Second Circuit further affirmed that the 2007 cleanup action constituted a “remedial action” rather than a “removal effort” under CERCLA because it aimed to address long-term contamination and eliminate the source of the pollution, rather than respond to an imminent threat. Under Section 107, remedial actions carry a six-year statute of limitations, meaning the statute of limitations for ELG’s cost recovery claims expired in 2013.

ELG argued that because it was seeking contribution for the costs of remediation arising solely from the 2015 consent order, the limitations period should run from the 2015 remediation, not the 2007 remediation.  The court disagreed, ruling that the 2015 cleanup was a continuation of the 2007 remedial action, as it addressed the same underlying contamination that ELG had learned was present at both sites in 1979. Thus, the 2007 and 2015 cleanups were deemed to be a “single remediation.” The court noted that the principle of single remediation prevents responsible parties, like ELG, from evading the statute of limitations by splitting cleanups into multiple phases. The court rejected ELG’s argument that it was unfair to apply the single remediation principle, emphasizing that DEC had urged ELG to seek relief from the Customers as early as 1998 and ELG chose not to, and nothing prevented ELG from bringing suit before 2013.

Ultimately, the Second Circuit ruled that because the sites constituted a single facility and the cleanups were part of one continuous remedial action, the six-year statute of limitations for cost recovery claims began to run from initiation of the remediation work in 2007, rendering the 2016 lawsuit time-barred. This decision provides important guidance as to how the Second Circuit applies statutes of limitations under CERCLA in multi-phase cleanups and reaffirms that where different phases of remediation address the same underlying contamination, the statute of limitations for all claims begins to run at the initiation of the first phase of work, even if the site is administratively divided.

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