MPM Silicones, LLC v. Union Carbide Corp., No. 17-3468 (2d Cir. 2020)Annotate this Case
MPM appealed the district court's grant of partial summary judgment dismissing its claims for recovery of "remedial action" costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as barred by the statute of limitations in 42 U.S.C. 9613(g)(2). UCC cross-appealed the district court's holding after a bench trial that UCC is liable to MPM for 95% of the cost of future "removal action."
The Second Circuit held that the district court's conclusion that MPM's claims for recovery of remedial action costs were time-barred relied on an incorrect interpretation of the court's decision in New York State Electric and Gas Corp. v. FirstEnergy Corp., 766 F.3d 212 (2d Cir. 2014). Although the court agreed with the district court that UCC's corrective actions undertaken in the 1990s were remediation, the court did not understand NYSEG to mean that, for purposes of determining the timeliness of a cost recovery action, all remediation activity at a site regardless of circumstances is deemed to be part of a single remediation, so that the six year limitations period necessarily begins to run at the start of the first remedial activity. The court also held that the district court did not err in adjudicating the allocation of future removal action costs, or in allocating 95% against UCC.
The court issued a subsequent related opinion or order on August 13, 2020.