732 F.3d 117 (2nd Cir. 2013), 12-2894-cv, New York v. Next Millenium Realty, LLC

Docket Nº:12-2894-cv.
Citation:732 F.3d 117
Opinion Judge:CHIN, Circuit Judge:
Party Name:State of NEW YORK, Joseph Martens, as Commissioner of the New York State Department of Environmental Conservation, Plaintiffs-Appellants, v. NEXT MILLENIUM REALTY, LLC, 101 Frost Street Associates, L.P., Defendants-Consolidated Plaintiffs-Consolidated Defendants-Cross Defendants-Appellees, 101 Frost Street Corporation, Pamela Spiegel Sanders, as Ex
Attorney:Barbara D. Underwood, Solicitor General (Cecelia C. Chang, Deputy Solicitor General, Matthew W. Grieco, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Plaintiffs-Appellants. Kathleen M. Sullivan (William B. Adam...
Judge Panel:Before: CHIN and LOHIER, Circuit Judges, and SWAIN, District Judge. [*]
Case Date:October 15, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 117

732 F.3d 117 (2nd Cir. 2013)

State of NEW YORK, Joseph Martens, as Commissioner of the New York State Department of Environmental Conservation, Plaintiffs-Appellants,

v.

NEXT MILLENIUM REALTY, LLC, 101 Frost Street Associates, L.P., Defendants-Consolidated Plaintiffs-Consolidated Defendants-Cross Defendants-Appellees,

101 Frost Street Corporation, Pamela Spiegel Sanders, as Executor of the Last Wills and Testaments of, and duly authorized Administrators of the Estate of, Emily Spiegel and Jerry Spiegel, Lise Spiegel Wilks, as Executor of the Last Wills and Testaments of, and duly authorized Administrators of the Estate of, Emily Spiegel and Jerry Spiegel, Island Transportation Corporation, Defendants-Consolidated Defendants-Appellees,

Utility Manufacturing Co., Inc., Nest Equities, Inc., Audie Kranz, Wilbur Kranz, Kamal Chopra, Tishcon Corp., a/k/a Tishcon Corporation, Joe Elbaz, Grand Machinery, Inc., William Gross, Defendants-Consolidated Defendants-Cross Defendants-Appellees,

Arkwin Industries, Inc., William Maglio, as Executor of the Last Will and Testament of, and duly authorized Administrator of the Estate of, defendant Daniel Berlin, Frank Jacobson, as Executor of the Last Will and Testament of, and duly authorized Administrator of the Estate of, defendant Daniel Berlin, Thomas Malloy, Equity Share I Associates, Defendants-Consolidated Defendants-Cross Defendants-Cross Claimants-Appellees,

Barouh Eaton Allen Corp., 2632 Realty Development Corporation, Richard Degenhart, Atlas Graphics, Inc., H.D.P. Printing Industries Corp., IMC Eastern Corporation, f/k/a IMC Magnetics Corp., NMB (USA) Inc., Defendants-Appellees,

Paul Merandi, Defendant-Consolidated Defendant-Cross Defendant,

C & O Realty Co., Defendant-Cross Defendant-Appellee,

Sulzer Metco (US) Inc., Third-Party Defendant-Cross-Defendant-Appellee,

Adchem Corp., Lincoln Processing Corp., Northern State Realty Co., Pufahl Realty Corp., Consolidated Defendants-Third-Party Defendants-Cross Defendants,

Joseph Pufahl, Charles Pufahl, Herman Pufahl, John Pufahl, Marvex Processing Corp., Unicord, Autoline Automotive Corp., Cobraline Manufacturing, Marki Realty, Physio-Chem, Inc., Bronco Model Craft, Inc., Applied Magnetics, Hyman Hass, Consolidated-Defendants,

Korg U.S.A. Inc., US-1 Marketing Group, Inc., Individually and as Successor to Cobraline Manufacturing Corp., Vishay General Semiconductor, Inc., Individually and as Successor to General Semiconductor, Inc., and General Instruments Corporation, General Semiconductor, Inc., Vishay Mic Technology, Inc., Individually and as Successor to General Semiconductor, Inc. and General Instruments Corporation, General Instruments Corporation, Third-Party Defendants-Cross Defendants,

Verizon New York, Inc., Individually and as Successor to GTE Operations Support Incorporated, GTE Corporation, GTE Sylvania Incorporated, Sylvania Electric Products Incorporated, Verizon Inc., Verizon, Verizon Inc., Individually and as Successor to GTE Operations Support Incorporated, GTE Corporation, GTE Sylvania Incorporated, Sylvania Electric Products Incorporated, Verizon New York Inc., Verizon, Verizon Communications, Individually and as Successor to GTE Operations Support Incorporated, GTE Corporation, GTE Sylvania Incorporated, Sylvania Electric Products Incorporated, Verizon Inc., Verizon, GTE Operations Support Incorporated, Individually and as Successor to GTE Corporation, GTE Sylvania Incorporated, Sylvania Electric Products Incorporated, Vishay Intertechnology, Inc., Individually and as Successor to Vishay General Semiconductor, Inc., General Semiconductor, Inc., and General Instruments Corporation, GTE Corporation, GTE Sylvania Incorporated, Sylvania Electrical Products Incorporated, Third-Party Defendants,

Jerry Goodman, Emily Spiegel, as Trustee under an Agreement of Trust for the benefit of Pamela Spiegel and Lisa Spiegel, Defendants-Cross Defendants,

Scibelli Brothers Auto Collision, Inc., Joseph Scibelli, Sam-Ton Towing & Salvage Inc., Defendants.

No. 12-2894-cv.

United States Court of Appeals, Second Circuit.

October 15, 2013

Argued: May 13, 2013.

Corrected: Oct. 16, 2013.

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Barbara D. Underwood, Solicitor General (Cecelia C. Chang, Deputy Solicitor General, Matthew W. Grieco, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Plaintiffs-Appellants.

Kathleen M. Sullivan (William B. Adams, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, N.Y., and Kevin Maldonado, Kevin Maldonado & Partners LLC, Windham, New York, for Defendants-Appellees Next Millennium Realty, LLC, 101 Frost Street Associates, L.P., 101 Frost Street Corporation, Pamela Spiegel Sanders, as Executor of the Last Wills and Testaments of, and duly authorized Administrators of the Estate of, Emily Spiegel and Jerry Spiegel, Lise Spiegel Wilks, as Executor of the Last Wills and Testaments of, and duly authorized Administrators of the Estate of Emily Spiegel and Jerry Spiegel, Emily Spiegel, as Trustee under an Agreement of Trust for the benefit of Pamela Spiegel and Lisa Spiegel.

Philip C. Landrigan and Peter D. Aufrichtig, McCarthy Fingar LLP, White Plains, N.Y., for Defendants-Appellees Kamal Chopra, Joe Elbaz and Tishcon Corp., a/k/a Tishcon Corporation.

Paul B. Sweeney and Barry S. Cohen, Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y., for Defendant-Appellee Equity Share I Associates.

John Gregory Martin and Suzanne M. Avena, Garfunkel Wild, P.C., Great Neck, N.Y., for Defendants-Appellees Arkwin Industries, Inc., William Maglio, as Executor of the Last Will and Testament of, and duly authorized Administrator of the Estate of, defendant Daniel Berlin, Frank Jacobson, as Executor of the Last Will and Testament of, and duly authorized Administrator of the Estate of, defendant Daniel Berlin, Thomas Malloy.

Charlotte A. Biblow and Franklin C. McRoberts, Farrell Fritz, P.C., Uniondale, N.Y., for Defendants-Appellees Grand Machinery, Inc. and 2632 Realty Development Corporation.

Michael S. Cohen, Nixon Peabody LLP, Jericho, N.Y., for Defendants-Appellees William Gross and C & O Realty Co.

Miriam Villani, Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y., for Defendants-Appellees Audie Kranz, Wilbur Kranz, Nest Equities, Inc., and Utility Manufacturing Co., Inc.

Thomas R. Smith, Bond, Schoeneck & King, PLLC, Syracuse, N.Y., for Defendant-Appellee Barouh Eaton Allen Corp.

Kenneth L. Robinson, Robinson & Associates, P.C., Syosset, New York, and Theodore Warren Firetog, Law Offices of Theodore W. Firetog, Farmingdale, N.Y., for Defendants-Appellees Richard Degenhart, Atlas Graphics, Inc., and H.D.P. Printing Industries Corp.

Robert R. Lucic, John E. Peltonen, and Daniel K. Fink, Sheehan Phinney Bass & Green, P.A., Manchester, New Hampshire, for Defendants-Appellees IMC Eastern Corporation, f/k/a IMC Magnetics Corp., and NMB (USA) Inc.

Sheila A. Woolson, Epstein Becker & Green, P.C., Newark, NJ, for Defendant-Appellee Island Transportation Corporation.

Richard P. O'Leary, McCarter & English, LLP, New York, N.Y., for Defendant-Appellee Sulzer Metco (US) Inc.

Before: CHIN and LOHIER, Circuit Judges, and SWAIN, District Judge. [*]

Page 121

CHIN, Circuit Judge:

In this case, the State of New York (the " State" ) sued defendants-appellees under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (" CERCLA" ), to recover certain costs incurred in investigating and addressing groundwater contamination in the Town of Hempstead (the " Town" ) in Nassau County, caused by pollution emanating from the New Cassel Industrial Area (the " NCIA" ).

The district court (Feuerstein, J. ), adopting a report and recommendation of the magistrate judge (Orenstein, M.J. ), granted defendants' motion for summary judgment and dismissed the action as time-barred. The district court held that the State's claims were barred by the six-year statute of limitations governing suits to recover costs for remedial actions— that is, measures to permanently remediate hazardous wastes— set forth in 42 U.S.C. § 9613(g)(2)(B). That statute of limitations is triggered by the commencement of cleanup construction, and as the district court found that construction began more than six years before suit was brought, the district court held the action was time-barred.

The State argues that the cleanup activities in question are removal actions— that is, measures taken to address immediate threats to public health— and that suits to recover costs for removal actions are governed by the three-year statute of limitations set forth in 42 U.S.C. § 9613(g)(2)(A), which is triggered by the completion of the removal action. The State contends that because the removal measures here had not been completed when this action was brought, the statute of limitations had not yet begun to run.

We agree that the State's action is timely. We hold that the cleanup activities here were implemented as removal measures and continued to be removal measures at all relevant times. Accordingly, the district court erred in applying the statute of limitations for remedial rather than removal actions, and we vacate and remand for further proceedings consistent with this opinion.

STATEMENT OF THE CASE

A. The Contamination and Investigation

The NCIA, a 170-acre site in North Hempstead, New York, sits on top of a sole source aquifer 1 in which groundwater flows approximately 55 to 65 feet below the ground surface. In the early 1950's, the NCIA was home...

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