On July 23, in MPM Silicones, LLC v. Union Carbide Corp., No. 17-3468(L), 17-3669(XAP), slip op., -- F.3d -- (2d Cir. 2020), the U.S. Court of Appeals for the Second Circuit reversed the District Court’s dismissal of plaintiff’s claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for remedial action costs. It concluded that the District Court incorrectly ruled that, regardless of circumstance, there can be only one remedial action at a site, and the statute of limitations for claims relating to that and any subsequent remediation starts to run with the first remedial action. Instead, the Court of Appeals required the District Court to closely examine whether the initial remedial action was part of the same remediation for which plaintiff sought cost recovery or the two remedial actions were distinct. On remand, the answer to that fact-specific question will determine when the statute of limitations was triggered and whether plaintiff’s cost recovery claim is time-barred.
Case Background
Plaintiff is the owner of a manufacturing facility in Friendly, West Virginia (Facility). Defendant previously owned the Facility for decades, manufacturing a variety of chemical products there. Defendant’s operations generated a substantial quantity of polychlorinated biphenyls (PCBs) waste, some of which was deposited into neutralization tanks and lime pits at the Facility. When the lime pits reached capacity, defendant moved the PCB-laden sludge to other areas of the Facility, including a 5.5-acre landfill. MPM Silicones, slip op. at 6-7.
Defendant stopped using PCBs in 1972. Thereafter, it took a variety of soil and groundwater samples, which led to an internal conclusion that “[a]lthough no definitive evidence can be found, it is possible that up to 250,000 pounds of PCB[s] are buried at [the Facility.]” Id. at 9-10. However, in later memoranda, defendant downplayed this conclusion as mere speculation. Indeed, in its 1981 Resource Conservation and Recovery Act (RCRA) permit application, defendant did not disclose to the U.S. Environmental Protection Agency (EPA) its prior use and disposal of PCBs at the Facility. Id. Thus, defendant’s RCRA permit had no PCB-related requirements. In 1992, defendant, with EPA approval, performed remedial activities at the Facility, which included capping the on-site landfill and constructing a surface water diversion ditch. Defendant’s remedial activities did not address the PCB contamination. Id. at 14-16.
Plaintiff acquired the Facility in 2003, and during a 2008 construction project, it uncovered PCB-saturated soil. Id. at 18, 21-22. Plaintiff subsequently notified the West Virginia Department of Environmental Protection (WVDEP), and in 2011, it filed a CERCLA action against defendant seeking, among other things, past and future remedial and removal action costs relating to the PCB contamination. Id. at 23-24. Although at this point neither WVDEP nor the EPA has required plaintiff to perform further remedial action, plaintiff anticipates being required to excavate and dispose of PCB-laden soils at the Facility in order to complete its construction project. Id.
Defendant moved for summary judgment, arguing that plaintiff’s claim for past and future remedial...
