12

- 2894

- cv

State of New York v. Next Millenium Realty



### U NITED 

### S TATES 

### C OURT OF 

### A PPEALS FOR THE 

### S ECOND 

### C IRCUIT
August Term 2012 (Argued: May 13, 2013 Decided: October 15, 2013)
Docket No. 12

- 2894

- cv

S TATE OF N EW Y ORK , J OSEPH M ARTENS , as Comm issioner of the New York State

Department of Environmental Conservation , Plaintiffs

- Appellants,

v. N EXT M ILLENIUM R EALTY , LLC, 101 F ROST S TREET A SSOCIATES , L.P., Defendants

- Consolidated Plaintiffs

Consolidated Defendants

Cross Defendants

- Appellees,
101 F ROST S TREET C ORPORATION , P AMELA S PIEGEL S ANDERS , as E xecutor of the Last Wills and Test aments of, and duly authorized A dministrators of the Estate of , Emily Spiegel and Jerry Spiegel , L ISE S PIEGEL W ILKS , as E xecutor of the Last Wills and Test aments of, and duly authorized A dministrators of the Estate of , Emily Spiegel and Jerry Spiegel , I SLAND T RANSPORTATION C ORPORATION , Defendants

- C onsolidated Defenda nts

Appellees,- 2

-

U TILITY M ANUFACTURING C O ., I NC ., N EST E QUITIES , I NC ., A UDIE K RANZ , W ILBUR K RANZ , K ARMAL C HOPRA , T ISHCON C ORP ., A / K / A T ISHCON C ORPORATION , J OE

E LBAZ , G RAND M ACHINERY , I NC ., W ILLIAM G ROSS , Defendants

- Consolidated Defendants

Cross Defendants

- Appellees,
A RKWIN I NDUSTRIES , I NC ., W ILLIAM M AGLIO , as E xecutor of the Last Will and Tes tament of, and duly authorized A dministrator of the Estate of , defendant Daniel Berlin , F RANK J ACOBSON , as E xecutor of the Last Will and Testament of, and duly author ized A dministrator of the Estate of , defendant Daniel Berlin , T HOMAS A LLOY , E QUITY S HARE I A SSOCIATES , Defendants

- Consolidated Defendants

Cross Defendants

- Cross Claimants

Appellees,
B AROUH E ATON A LLEN C ORP
. , 2632 R EALTY D EVELOPMENT C ORPORATION , R ICHARD D EGENHART , A TLAS G RAPHICS , I NC ., H.D.P. P RINTING I NDUSTRIES C ORP ., IMC E ASTERN C ORPORATION , F / K / A IMC M AGNETICS C ORP ., NMB (USA) I NC ., Defendants

- Appellees,
P AUL M ERANDI ,

Defendant

- Consoli dated Defendant

Cross Defendant,
C&O R EALTY C O .,

Defendant

- Cro ss Defendant

- Appellee,
S ULZER M E TCO (US) I NC .,

Third

- Party Defendant

Cross

- Defendant

- Appellee,- 3

-

A DCHEM C ORP ., L INCOLN P ROCESSING C ORP ., N ORTHERN S TATE R EALTY C O ., P UFAHL R EALTY C ORP .,

Consolidated Defendants

- Third

- Party Defendants

- Cross Defendants, J OSEPH P UFAHL , C HARLES P UFAHL , H ERMAN P UFAHL , J OHN P UFAHL , M ARVEX P ROCESSING C ORP ., U NICORD , A UTOLINE A UTOMOTIVE C ORP ., C OBRALINE M ANUFACTURING , M ARK I R EALTY , P HYSIO
- C HEM , I NC ., B RONCO M ODEL C RAFT ,

I NC ., A PPLIED M AGNETICS , H YMAN H ASS , Consolidated

- Defenda nts , K ORG U.S.A. I NC ., US

- 1 M ARKETING G ROUP , I NC ., Individually and as S uccessor to Cobraline Manufacturing Corp., V ISHAY G ENERAL S EMICONDUCTOR , I NC ., Individually and as Successor to General Semiconductor, Inc., and General Instruments Corporation , G ENER AL S EMICONDUCTOR , I NC ., V ISHAY M IC T ECHNOLOGY , I NC ., I ndividually and as S uccessor to General Semiconductor, Inc. and General Instruments Corporation , G ENERAL I NSTRUMENTS C ORPORATION , Third

- Party Defendants

Cross Defendants,
V ERIZON N EW Y ORK , I NC ., Individually and as Successor to GTE Operations Support Incorporated , GTE C ORPORATION , GTE S YLVANIA I NCORPORATED , S YLVANIA E LECTRIC P RODUCTS I NCORPORATED , V ERIZON I NC ., V ERIZON , V ERIZON I NC ., Individually and as Successor to GTE Operations Support Incorpor ated , GTE C ORPORATION , GTE S YLVANIA I NCORPORATED , S YLVANIA E LECTRIC P RODUCTS I NCORPORATED , V ERIZON N EW Y ORK I NC ., V ERIZON , V ERIZON C OMMUNICATIONS , Individually and as Successor to GTE Operations Support Incorporated , GTE C ORPORATION , GTE S YLVANIA I NCORPORA TED , S YLVANIA E LECTRIC P RODUCTS I NCORPORATED , V ERIZON I NC ., V ERIZON , GTE O P ERATIONS S UPPORT I NCORPORATED , I ndividually and as S uccessor to GTE Corporation , GTE S YLVANIA I NCORPORATED , S YLVANIA E LECTRIC P RODUCTS I NCORPORATED , V ISHAY I NTERTECHNOLOGY , I NC ., I n dividually and as Successor to Vishay General Semiconductor, Inc ., G ENERAL S EMICONDUCTOR , I NC ., and G ENERAL I NSTRUMENTS- 4

-

C ORPORATION , GTE C ORPORATION , GTE S YLVANIA I NCORPORATED , S YLVANIA

E LECTRICAL P RODUCTS I NCORPORATED ,

T hird

- Party Defendants, J ERRY G OOD MAN , E MILY S PIEGEL , as Trustee under an Agreement of T rust for the

benefit of Pamela Spiegel and Lisa Spiegel , Defendants

- Cross Defendants,
S CIBELLI B ROTHERS A UTO C OLLISION , I NC ., J OSEPH S CIBELLI , S AM
- T ON T OWING & S ALVAGE I NC .,

Defendants.

Before: C HIN AND L OHIER , Circuit Judges , AND S WAIN , District Judge

. *

Appeal from a judgment of the United States District Court for the Eastern District of New York (Feurstein, J. ), dismissing claims by the State of New York under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq

. , for costs incurred in investigating and addressing groundwater contamination in Hempstead, New

* The Honorable Laura Taylor Swain, of the United States District Court for the Southern District of New York, sitting by designation.- 5

-

York. The district court granted summary judgment in favor of the def endan ts

appellees on the ground that the action was time

- barred.

VACATED and REMANDED.

____________________________ B ARBARA D. U NDERWOOD , Solicitor General (Cecelia C. Chang, Deputy Solicitor General, Matthew W. Greico, Assist ant Solicitor General , on the brief ), for Eric T. Schneiderman, Attorney General of the State of New York, New York, New York, for Plaintiffs

- Appellants

. K ATHLEEN M. S ULLIVAN (William B. Adams, on the brief ), Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York , 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 Corporati on, Pamela Spiegel Sanders, as E xecutor of the Last Wills and Test aments of, and duly authorized A dministrators of the Estate of , Emily Spiegel and Jerry S piegel, Lise Spiegel Wilks, as E xecutor of the Last Wills and Test aments of, and duly authorized A dministrators of the Estate of Emil y Spiegel and Jerry Spiegel, Emily Spiegel, as Trustee under an Agreement of T rust for the benefit of Pamela Spiegel and Lisa Spiegel

.- 6

- Philip C. Landrigan and Peter D. Aufrichtig, McCarthy Fingar LLP, White Plains, New York, for Defendants

- A ppellees Kamal Chopra, Joe Elbaz a nd Tishcon Corp., a/k/a Tishcon Corporation. Paul B. Sweeney and Barry S. Cohen, Certilman Balin Adler & Hyman, LLP, East Meadow, New York, for Defendant

- Appellee Equity Share I Associates. John Gregory Martin and Suzanne M. Avena, Garfunkel Wild, P.C., Great Neck, New York, for Defendants

- Appellees Arkwin Indust ries, Inc., William Maglio, as E xecutor of the Last Will and Tes tament of, and duly authorized A dministrator of the Estate of , defendant Dan iel Berlin, Frank Jacobson, as E xecutor of the Last Will and Tes tament of, and duly authorized A dministrator of the Estate of , d efendant Daniel Berlin, Thomas Malloy

. Charlotte A. Biblow and Franklin C. McRoberts, Farrell Fritz, P.C., Uniondale, New York, for Defendants

- Appellees Grand Machinery, Inc. and 2632 Realty Development Corporation

. M ichael S. Cohen, Nixon Peabody LLP, Jericho, New York, for Defendants

- Appellees William Gross and C&O Realty Co. Miriam Villani, Sahn Ward Coschignano & Baker, PLLC, Uniondale, New York, for Defendants

- Appellees Audie Kr anz, Wilbur Kranz, New Equities, Inc. , and Utility Manufacturing Co., Inc.- 7

- Thomas R. Smith, Bond, Schoeneck & King, PLLC, Syracuse, New York, for Defendant

Appellee Barouh Eaton Allen Corp. Kenneth L. Robinson, Robinson & Associates, P.C., Syosset, New Y ork, and Theodore Warren Firetog, Law Offices of Theodore W. Firetog, Farmingdale, New York, 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, Shee han Phinney Bass & Green, P.A., Manchester, New Hampshire, for De fendants

- Appellees IMC Eastern C orporation, f/k/a IMC Magnetics Corp. , and NMB (USA) Inc. Sheila A. Woolson, Epstein Becker & Green, P.C., Newark, New Jersey, for Defendant

- Appellee Island T ransportation Corporation. Richard P. O’Leary, McCarter & English, LLP, New York, New York, for Defendant

Appellee Sulzer Metco (US) Inc.

____________________________ CHIN, Circuit Judge :

In t his case , t he 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- 8

-

cost s 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 (Orenst ein , M. J.), granted d efendants '
motion for summary judgment and dismissed the action as time

- barred. The
district court held that the State ’ s claims we re barred by the six

- year statute of
limitations governing suits to recover costs for reme dial actions

-- that is,

measures to permane ntly remediate hazardous wastes

-- set forth in 4 2 U.S.C. § 9613(g)(2)(B). That statute of limitations is triggered by the commencement of
clean up 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 t aken to address imm ediate 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- 9

-

removal m easures here had not been completed when this action was brought , the statute of limitations ha d not yet begun to run.

We agree that the State's action is timely . W e hold that the cleanup
activities here were implemented as remova l measures and continued to be
removal measures at all relevant times . Accordingly, the district court erred in applying the statute of limitations f or remedial rather than removal actions, and we vacate and remand for further proceedings consistent with this opini on. 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 19 50's, the NCIA was home to a variety of light industries. A number of these industries were involved in

1 A sole or principal source aquifer is an aquifer that supplies at least 50 percent of the drinking water consumed in the area overlying the aquifer. See Sole Source Aquifer Protection Program, Envtl. Protection Agency , http://water.epa.gov/infrastructure/ drinkingwater /sourcewater/protection/solesourceaquifer.cfm (last visited Sept. 11, 2013).- 10

-

activities that produced volatile organic compounds ( " VOCs " ), which eventually found their way into the groundwater. 2

In 1986, the Nassau County Department of Health ( the " County Health Department " ) uncovered groun dwater contamination at the NCIA . As a consequence, in 1988 the New York State Department of Environmental Conservation ( the " DEC " ) listed the NCIA as a Class 2 Site on the State registr y of
hazardous waste sites. 3
1. T he GAC In 1989, the Town detected VOCs in two of its water supply wells at levels approaching New York State Maximum Contam inant Levels for drinking
water

. 4 These wells we re located in the Bowling Green Estates Water District
and we re approximately 1,500 feet from the NCIA in the direction of the flow of

2 The presence of elevated VOCs in drinking water is a health risk because some VOCs are carcinogens and ot her s may harm certain human organs

. See Barbara L. Rowe et al. , Occurrence and Potential Human

- Health Relevance of Volatile Organic Compounds in Drinking Water from Domestic Wells in the United States , 115 Envtl. Health Persp. 539, 1539 (2007).

3 Class 2 sites contain hazardous waste that poses " a significant threat to public health or the environment. " N. Y. Comp. Codes R. & R egs . tit. 6, § 375

- 2.7(b)(3)(ii).

4 "Maximum Water Contaminant Level" is defined as "the maximum permissible level of a contaminant in water which is delivered to any user of a public water system." N .Y. Comp. Codes R. & Regs. tit. 10, § 5

- 1.1(ap).- 11

-

groundwater

. The Town hired Dvirka and Bartilucci ( " D&B " ), an engineering firm, to investigate . In November 1989, D&B confirmed the presence of VOCs in
the wate r, in cluding trichloroethylene and tetrachlo roethylene, likely carcinogens, and recommended the installation of a granulated activated carbon
ad sorption system ( the " GAC " ) to remove the VOCs. A GAC eliminates contaminants by pumping untreated wa ter from the wells through carbon units
and dischar ging the water into a groundwater storage reservoir. As the carbon bed reaches its useful adsorption capacity, however, its effectiv eness diminishes considerably.

In the fall of 1990 , the Town b ought and installed a GAC at the site
of the two wells

. On June 15, 1993, the County Health Department approved the
GAC for full operation. The GAC commenced operations, and it ha s remained in operation since.
2. The Air Stripper Tower
From December 10, 1990 through May 3 0, 1995, the Town found that rising concentrations of VOCs had " markedly increased " the cost of running the GAC system. As Hempstead Water Commissioner Daniel Davis ( " Commissioner
Davis " ) explained:- 12

- During this period [from December 1990 through May 1995] , I became concerned that the increasing concentrations of VOCs would soon render the GAC Treatment System ineffective and too costly or impractical to operate. My concerns led me to consider supplementing the GAC Treatment System in order to improve effi ciency and lower the costs of operation. (Davis Decl. ¶ 16)

. Commissioner Davis asked D&B to recommend a sys tem to supplement the GAC

. In May 1995, D&B proposed an air stripper tower

-- a packed tower aeration system

. The air stripper tower, which rests on a large concrete slab, treats the water before it is collected in a clearwell and then p umps the water to the GAC

.

On June 12 and 13, 1995, the Town took explorat ory soil borings to
determine whether the soil cou ld bear the weight of an air

- strippe r tower

. T he
Town awarded the contract to construct t he air stripper tower in July 1995. Construction began in July 1995 and was completed in 1997. The air tower commenced operations , and it has remained in operation since.
3. The DEC Investigation The DEC began its remedial investigation of the NCIA in 1995 , and thereafter it sampled 41 groundwa ter monitoring wells between 1996 and 2000,- 13

-

installed four early war ning groundwater wells in 1998, and collected soil and groundw ater samples in 1998 and 1999.

On May 16, 1995, the DEC and the New York State Department of Health ( the " State Health Department " ) held a public meeting in Hempstead to
address the groundwater contamination. Based on discussions at that meetin g, the Town began to suspect the NCIA was the source of the groundwater
contamination.

On May 23, 1995, the Town followed up with a letter to the DEC: (1) expressing concern about the " substantial increase in the levels of contamination"
in the wells sinc e 1992; (2) requesting consideration for funding for treatment under the New York State Superfund Program; (3) requesting a " full, immediate and intensive investigation by the DEC to determine who all the polluters are so that they will be held accountable for their actions " ; and (4) declining to seek compensation for th e GAC system already in place.

In 1999, engineers hired by the DEC confirmed the existence of three VOC plumes migrating underground from the NCIA towards the T own. In September 2000, the DEC issued its final remedial investig ation/feasibility study report

. The report divided the remedial strategy into three par ts, and separated- 14

-

the NCIA into three corresponding operable units addressing ground

- level contamination within the NCIA, cont aminated groundwater directly beneath the NCIA, and the migration of VOC plumes from the NCIA offsite

.

In October 2003, the DEC issued the final Record of Decision ( " ROD " ) selecting a permanent remedy to address the pollution at the NCIA:

" Full Plume R e mediation of Upper and Deep Portions of the Aquifer (to 225 ft below ground surface) with In

- Well Vapor Stripping/Localized Vapor
T reatment ." This remedy involved pilot testing, the removal of contaminated soil, the construction of additional in

- well vapo r stripping wells (groundwater circulation wells), as well as the installation of new monitoring wells and a long

term g roundwater monitoring program. It also incorporated the existi ng GAC and air stripper tower. The DEC estimated the full remediation wo uld cost $ 3. 5 million and take seven years. 5
4. Tolling Agreements
The State e ntered into tolling agree ments with a number of potentially responsible parties

-- owners and operators of facilities within the

5 The project has not yet been completed, and the United States Environmental Protection Agency has taken over responsibilit y for the NCIA.- 15

-

NCIA

-- tolling the statute of limitations. The earliest of these agreements came into effect on June 27, 2001.
B. Procedural History

On M arch 13, 2006, the State filed this cost

- recovery suit against
defendants pursuant to section 107 of CERCLA, 42 U.S.C. § 96 07, which permits recovery of " all costs of removal or remedial action incurred by the United States
Government or a State. " The State seeks to recover for costs incurred in investigating and re sponding to the off

- site groundwater contamination at the
NCI A , as well as " past, present , and future response costs incurred and to be incurred by the State in responding to releases of hazardous substances. " Second Am. Compl. ¶¶ 146, 147. 6

On September 24, 2010, the magistrate judge issued a report and
recommend ation ( " R&R " ) recommending that defendants ' motion for sum mary judgment be granted on the grounds that the State's claims were barred by the

6 On March 23, 1998, the Town of Hempstead formally requested reimbursement from the DEC for the cost of construction of the tower. In 2000, the DEC and the Town entered into an agreement whereby the DEC would reimburse the Town for the cost of constructing and installing the tower, while the Town would own, maintain, and operate it

. As it acknowledged in its briefs and at oral argument, the State is not seeking compensation for the GAC because the Town did not seek reimbursement for t he GAC from the State.- 16

-

statute of limitations. State of New York v. Next Millenium Realty, LLC , No. CV

- 06

- 1133, 2010 WL 80 32748 (E.D.N.Y. Sept. 24, 2010). The district court adopted the
R&R in its entirety by order dated November 22, 2011.

The district court concluded that the GAC and the air stripper
actions were " remedial " and that the actions were att ributable to the State. It
held that the State's claims were subject to the statute of limitations for remedial actions, which bars claims fil ed more than six years after commencement of
construction . The district court then concluded that the statute had begu n to run

e ither when the GAC was installed in 1990, or when three foundational borings for the air stripper were drilled on June 12 and 13, 1995. Next Millenium , 2010 WL 8032748, at *12

- 13

. Because the earliest tolling agreement did not come into effect until June 27, 2001

-- more than six years after construction commenced on June 12, 1995

-- the district court ruled the State's suit, filed on March 13, 2006,
was time

- barred. Id. at *14.

This appeal followed.

DISCUSSION A
. C ERCLA

Congress created C ERCLA to address hazardous waste spills by authorizing the United States and the States to commence cleanup with public- 17

-

money and then to seek the recover y of c os ts from polluters. 42 U.S.C. § 9607 (a)(4)(A). Congress deliberately str uctured this regime t o allow federal
and state government s to r espond to spills immediately while leaving the
determination of liability and financial responsibility for later. See, e.g., New York v. Shore Realty Corp. , 759 F.2d 1032, 1041 (2d Cir. 1985) ( " EPA can sue for

re imbursement of cleanup costs from any responsible parties it can locate , allowing the federal government to respond immediately while later trying to shift financial responsibility to others

. " (citation omitted))

.

We have construed CERCLA liberally to a dvance the dual goals of cleaning up hazardous waste and holding polluters responsible for their actions. See B.F. Goodrich Co. v. Murtha , 958 F.2d 1192, 1198 (2d Cir. 1992) ( " Because it is a remedial statute, CERCLA must be construed liberally to effectu ate its two primary goals: (1) enabling the EPA to respond efficiently and expeditiously to toxic spills, and (2) holding those parties responsible for the releases liable for the costs of the cleanup. " ); Prisco v. A&D Carting Corp. , 168 F.3d 593, 602 (2d Cir. 1999) ( " As a remedial statute, CERCLA should be construed liberally to give effect to its purposes. " (quoting B.F. Goodrich v. Betkoski , 99 F.3d 505, 514 (2d Cir.
1996 ) (internal quotation marks omitted) ).- 18

- Sect ion 107 of CERCLA authorizes federal and state government s to recover response costs from potentially responsible parties (" PRPs ") for both removal and remedial actions. 42 U.S.C. § 9607 (a)(4)(A) . Removal actions are
clean

- up or removal measures taken to respond to immediate threats to public
h ealth and safety. 42 U.S.C. § 9601 (23) 7 ; see also Minnesota v. Ka lman W. Abrams Metals, Inc., 155 F.3d 1019, 1024 (8th Cir. 1998) (removal actions are those "taken
to counter imminent and substantial threat s to public health and welfare"); United States v. W.R. Grac e & Co. , 429 F.3d 1224, 1244 ( 9th C ir. 2005) ( " Courts have

7 42 U.S.C. § 9601(23) provides:

The terms " remove " or " removal " mean [] the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of releas e of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be nece ssary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measu res to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act [42 U.S.C.A. § 5121 et seq .].- 19

-

. . . stressed the immediacy of a threat in deciding whether a cleanup is a removal
action. " (collecting cases) )

. Accord Memorandum from Stephen Lufti g, Director, Office of Emergency and Remedial Response , Use of Non

- Time Critical Removal Authority in Superfund Response Actions , to Regions I

- X Program and Legal Division Directors ( Feb. 14, 2000 ) (emphasizing immediate nature of removal actions) , available at http://www.epa.gov/superfund/policy / remed y / pdf s /memofeb 2000

- s.pdf ( the " EPA Guidance " ). 8

Remedial actions are generally actions designed to permanently
remediate hazardous waste. 42 U.S.C. § 9601(24) 9 ; see also S c haefer v. Town of

8 While the EPA Guidance is not entitled to the level of deference afforded by Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837 (1984), it is entitled t o some deference. See Skidmore v. Swift & Co. , 323 U.S. 134, 139, 140 (1944) (rulings, interpretations, opinion letters, policy statements, agency manuals, and enforcement guidelines are " entitled to respect " to the extent they possess the " power to persuade " ); see also Alaska Dep't of Envtl. Conservation v. EPA , 540 U.S. 461, 487

- 88 (2004) (although internal agency guidance memoranda do not receive Chevron deference, " [c]ogent 'administrative interpretations . . . not [the] products of formal rulemak ing . . . nevertheless warrant respect. ' " (alterations in original and citations omitted)). In United States v. W.R. Grace & Co. , the Ninth Circuit gave some deference to the EPA Guidance in determining that an action was removal and not remedial in natur e. 429 F.3d 1224, 1243 (9th Cir. 2005).

9 42 U.S.C. § 9601(24) provides in part :

The terms " remedy " or " remedial action " mean [] those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a releas e or threatened release of- 20

-

Victor , 457 F.3d 18 8, 195 (2d Cir. 2006) (remedial actions are "generally long

- term or permanent containm ent or disposal programs") (quoti ng Shore Realty Corp. , 759 F.2d at 1040 ( internal quotation marks omitted) ) ; California ex rel. Cal. Dep't of
Toxic Substances Control v. Neville Chem. Co. , 358 F.3d 661, 667 (9th Cir. 2004) ("remedial actions generally are permanent responses " ) (quoting Geraghty and Miller, Inc. v. Conoco, Inc , 2 34 F.3d 917, 926 (5th Cir. 2000 ) (internal quotation marks omitted)).

Removal and remedial acti ons are governed by different statutes of limitations. For removal actions, t he government must seek to recoup costs within three years " after completion of the removal action. " 42 U.S.C. § 9613(g)(2)(A). For remedial actions, t he government must seek t o recoup costs

a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contamin ation materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.- 21

-

within six years after " initiation of physical on

- site construction of the remedial
action. " 42 U.S.C. § 9613(g)(2)(B). 10

W hether a suit to recover response costs under section 107 of
CERCLA is a " removal action " or a " remedial action " is a question of law that we
review de novo

. W.R. Grace & Co. , 429 F.3d at 1234

- 35 ( "Whether the . . . cleanup activity was a removal action

-- or, on the other hand, a remedial action in
removal action ' s clothing

-- is a question of statutory interpretation" and thus, "a legal issue that we review as a matter of law. " ); Geraghty and Miller, Inc. , 234 F.3d
at 925

- 26 (classification of an activity as "removal" or "remedial" is "determined as a matter of law")

. Likewise , to the extent the resolution of this legal question turns on factual issues, we review the district court's grant of summary judgment de novo , applying well

- settled principles governing summary judgment motions

. Lopes v. Dep't of Soc . Servs. , 69 6 F.3d 1 80, 184 (2d Cir. 2012)

. B. A nalysis

We hold that , to the extent it concerns the GAC and air stripper
tower, this suit is a "removal action" subject to the three

- year statute of
limitations , which is triggered by the "completion of the removal action."

10 Section 9613(g)(2)(B) further provides that any "costs incurred in the removal action may be recovered in the cost recovery action" for the remedial action, "if the remedial action is initiated within 3 years after the completion of the removal action."- 22

-

Bec ause the removal measures cannot be deemed to have been completed in any sense before the State's adoption of a remediation plan that incorporated them, and this action was commenced within three years of that earliest possible date,
the statute of limita tions ha d not run as of the time this action was commenced

. Hence, we hold that the district court erred in dismissing this action as untimely.
1. T he Nature of the Cleanup Measures
We hold that the GAC and air stripper tower were removal

measures , for the following reasons

.

First, both systems were installed in response to an imminent public health hazard, a defining char acteristic of removal actions. See Ka lman W. Abrams Metals, Inc., 155 F.3d at 1024 ; W.R. Grace & Co. , 429 F.3d at 1244 (collecting cases).
T he contamination in Hempstead's drinking water posed an immediate threat.
A s the engineering firm D&B recognized in its November 1989 report :

Wells 1 and 2 at the Iris Place Pump Station have Volatile Organic Compound (VOC) concentrations approa ching current New York State Maximum Contaminant Levels for potable water. The wells are critical to the operation of the Bowling Green Water District; consequently, immediate action is required to ensure that the wells remain operational at all times.- 23

-

(Aff. of Daniel Davis, Ex. 1 at 3 ) (emphasis added). T he Town installed the GAC in response to this impending substantial threat to public health

.

Similarly, the Town constructed the air stripper tower in direct

res ponse to rising VOC levels that were ov erwhelming the GAC system and diminishing its effectiveness. After Commissioner Davis grew concerned that the increasing levels of VOCs would " render the GAC Treatment System ineffective and too costly or impractical to operate, " he issued a directive to carry out design work for the air stripper tower to e nsure that the Bowling Green wells
would be " capable of supplying adequate quantities of potable water to customers in accordance with the New York State Sanitary Code. " (Davis Decl. ¶¶ 16, 17). There is no question these two measures were taken by the Town in response to c oncerns about the imminent threat to safe drinking water

.

Second, both the GAC and the air stripper tower were designed as

measures to address water contamination at the endpoint

-- the well s -- and not to permanently remediate the problem by "prevent[ing] or minimiz[ing] the release of hazardous substances so that they do not migrate" from the underlying
source of contamination at the NCIA

. 42 U.S.C. § 9601(24) ; s ee W.R. Grace & Co., 429 F.3d at 1247 (finding cleanup activity to be removal action where it did not- 24

-

"fully eliminate the public health threat or amount to a full

- blown remediation");

s ee also City of Moses Lake v. United States , 458 F. Supp. 2d 1198, 1213 (E.D. Wash.
20 06) (cleanup action taken by the City at drinking wells to lower TCE amounts
to below maximum contaminant levels

-- rather than abating the contamination in the aquifer or at the Superfund site proper

-- bears "all of the h allmarks of a
'removal action'

-- an interim response to minimize and stabilize immi nent harms to human health "). Indeed, at the time the GAC and air stripper w ere built, neither the State nor the Town knew the source of the VOCs in the drinking water pumped from the wells, and they wer e responding to a water

- supply prob lem, not an environmental clean up concern. The contaminated water was already in the wells, and the water came out of the wells into the G AC and air stripper tower so that the contaminants could be removed from the wells. These were not remedial measures intended to prevent the well water from being
contaminated in the first place

.

The GAC and air stripper tower were implemented as measures to minimize and mitiga te the damage from the NCIA , rather than to permanen tly
eliminat e it. See 42 U.S.C. § 9601(24) ( " remedial " action defined as " those actions consistent with permanent remedy " ). Neither project was designed to remedy- 25

-

the underlying source of the contamination, namely , the hazardous waste at the
NCIA . Indee d, the fact that the VOCs were migrating from the NCIA was not
even confi rmed until 1999

-- nine years after the GAC was built and four years
after the air stripper tower was built. Therefore , the Town's actions in 1990 and
1995 could not have been intend ed to permanentl y remediate the contamination coming from the NCIA. 11 It was not until October 2003 that the State, having conducted lengthy studies and considered a number of alternatives, det ermined
that a number of new clean up measures throughout the NC IA site, along with the existing GAC and air stripper tower, would be appropriate means of remediating the contamination coming from the NCIA.

Defendants argue that cleanup actions do not have to address the underlying source of contamination to qualif y as " remedial, " citing Morrison Enter s ., LLC v. Dravo Corp. , 638 F.3d 594 (8th Cir. 2011). In Morrison , the City of Hastings, Nebraska , removed contaminated wells and installed new wells and

11 Defendants point to evidence that Commissioner Davis stated that the GAC "was not intended to be a temporary system," that the intent was "to construct a system that would permanently address the contamination foun d in the Bowling Green wells." Even so, as discussed further below, the GAC was not a permanent remediation in the sense that it did not add ress the source of the contamination

-- the VOC plumes migrating from th e NCIA. Moreover, even though the GAC eventually became a part of the permanent solution, as discussed below, it could still also qualify as a removal action during the relevant time period for purposes of the statute of limitations

.- 26

-

water mains to remediate contaminated drinking water. Id. at 600. The City argued that th ese actions were removal measures because " the work on the water supply system did not clean one molecule of water or rid the environment of any
contamination whatsoever. " Id. at 608 (internal quotation marks omitted) . Th e Eighth Circuit disagreed, holding that " retiring contaminated wells and obtaining uncontaminated supplies of water to meet the needs of the City's residents for the foreseeable future is more in the nature of a permanent remedy. " Id. In doing so, it re lied on the fact that the phrase " provision of alternative water supplies " is found in the definition of " remedial " actions. Id. at
609 ; see 42 U.S.C. § 9601(2 4)

. The court noted:

[t]he City's narrow interpretation of the term remedial action would ren der Congress's specific inclusion of the provision of alternative water supplies in the second sentence of the definition a nullity. By its inherent nature, the provision of alternative water supplies never cleans contaminated water, nor rids the environm ent of contamination.
Morrison , 638 F.3d at 609

. Thus, because the measures constituted the " provision
of alternative water supplies " and were consistent with the definition of

" remedy, " which includes actions to " prevent or minimize the release of
haz ardous substance s , " the court concluded they were remedial.- 27

- In contrast, t he Town's actions in this case do not involve the provision of alternative water supplies. The GA C and air stripper tower were
used to remove sufficient amounts of contamination from polluted water to render the water safe to drink. That is hardly the same as retiring contaminated wells and building an entirely new water supply system. Thus, Morrison is inapposite. Additionally, e ven though the GAC and the air stripper tower eventually were ultimately adopted as part of a permanent remedial solution, they still constituted "removal" actions at all times relevant to the statute of
limitations question

. W.R. Grace & Co. , 429 F.3d at 124 4 ( " As a practical matter, removal actions are often permanent solutions such as can be the case in a typical
soil or drum removal. " ) (quoti ng EPA Guidance at 3 n. 3 (internal quotations marks omitted) ); Geraghty and Miller, Inc. , 234 F.3d at 927 ( "Eve n if the replacements for these wells are integral to the long

- term remediation of the site, that does not mean that their initial placement cannot be categorized as
removal

. ")

. Likewise, e ven if the GAC and the air stripper tower performed
certain functi ons that might be considered "remedial," s uch as "prevent[ing] or
minimiz [ing] the release of hazardous substances so they do not migrate to cause- 28

-

substantial danger to present or future public health or welfare," 42 U.S.C. § 9601(24) (definit ion of remedy), that does not preclude them from being
classified as "removal." Geraghty and Miller, Inc. , 234 F.3d at 927 (noting there can be overlap between remedial and removal activities); Gen. Elec. Co. v. Litton Indus. Automation Sys., Inc. , 920 F. 2d 1415, 1419 (8th Cir. 1990) (finding excavation to be a removal activity even though CERCLA l ists it as a remedial activity), abrogated on other grounds by Key Tronic Corp. v. United States , 511 U.S. 809 (1994).

Thus, we conclude, as a matter of law, that under the circumstances of this case, these two systems, which were built in response to an immediate health threat and designed to render the drinking water safe without addressing the underlying source of pollution, were " removal " and not " remedial " actions at least up until the time that the State adopted a remediation plan that incorporated them

. 12

12 We need not, and do not, hold that all GAC systems, or all air stripper towers, necessarily constitute removal actions no matter the circumstances under which they are implemented. An air stripper towe r, for example, could be constructed with the understanding that it would constitute a permanent solution to the relevant water safety issue, or, where the underlying source or pollution is k now n, with the u nderst andi ng that it would add ress the source of the pollution. Nothing in this opinion prevents consideration of these or other factors on a case

- by

- case basis to determine whether a given air stripper tower or GAC system constitutes a removal or a remedial action under CERCLA. Nor do we hold that suc h a removal measure automatically terminates as such at the moment a larger remedial plan incorporating it- 29

-

2. D efend ants' remaining arguments

a. The d uration and cost of the actions
Defendants argue that the duration and cost of these measures
indicate they are remedial actions. Th ey point out that the GAC has been running since 1990 and the air stripper tower since approximately 1997 . They also argue that the cost of the project s -- the GAC cost $1. 2 5 million and the air

str ipper tower cost $1.2 million

-- supports the conclusion that these are remedial actions because they are simply too expensive to be removal actions
.

In support of their argument, the defendants point to a section of
CERLCA that provides that a removal m easure " shall not continue after $2,000,000 has been obligated for response actions or 12 months has elapsed from the date of initial response. " 42 U.S.C. § 9604(c)(1); accord 40 C.F.R. § 300.415(b)(5). There are , however, two exceptions to this cap: (1) if there is an

" immediate risk to public health or welfare or the environment " requiring

" continued response actions " to " prevent, limit, or mitigate an emergency , " or (2)
if the "[ c]ontinued response action is otherwise appropriate and consistent with

is adopted. It is sufficient for the instant analytical purpose to note that th e removal status of the GAC and air stripper tower measures here ende d, if at all, no earlier than the date the State adopted its remedial plan, and that the State's cost recovery action is therefore timely.- 30

-

the remedial action to be taken. " 42 U.S.C. § 9604(c)(1); accord 40 C.F.R. § 300.415(b)(5)(i) and (ii).

As an initial matter, d efendants concede that " these limits are not binding here since the State performed the response measures, " rather than the
fede ral government. Defs.

- Apps. ' Br. at 34

. In addition , the GAC and air stripper
tower fall within both exceptions as there was an " immediate risk to public
health " and the " continued response actions " were required to " prevent, limit, or mitigate an emerge ncy. " 42 U.S.C. § 9604(c)(1); accord 40 C.F.R. § 300.415(b)(5)(i) and (ii) . T he Town instituted these measures in response to rising levels of VOCs
that posed a serious threat to drinking water safety. Accordingly, the limitations of 42 U.S.C. § 9604(c) (1) are not applicable. See W.R. Grace , 429 F.3d at 122 6 , 124 9 (holding district court did not err in determining action was removal even though it cost over $54 million and took several years to complete because there was an immediate risk to public health).

Moreover, the EPA Guidance persuasively provides that neither the cost nor the duration of a project is dispositive in determining whether the project is removal or remedial:

W hile some courts have looked to [the length of time necessary to complete an action] in distinguishing- 31

- between removal and remedial actions, this characteristic usually is not helpful; removal actions are most often of short duration, but they certainly can be long

- running responses, too, thereby undercutting the probative value of duration . . . in deciding whether an action is remova l rather than remedial in nature.
EPA Guidance at 3 n.2. The EPA Guidance also recognizes that removal actions
can involve considera ble expense :

[E] ven expensive and complex response actions may be removal action candidates if they are relatively time

sensitive

-- regardless of whether any further action might ultimately be selected for a site. Id. at 4. Because both the GAC and the air stripper tower were urgent responses designed to co mbat rising levels of VOCs that thr eatened the water quality, the duration and cost of these measures do not mean that they
constitute d remedial action s ab initio

. See id. at 4 n.4 (t he $2 million and 12 month
limitations "apply only to fund

- financed actions, and serve as a fiscal check; they
are not found in the st atutory definition of ' removal ' and do not control which

a ctions can be taken as removals ")

.- 32

- b. T he use of the word " remedial " by the State
The district court found that the State's use of the word " remedial " in conjunction with the GAC system and the air stripper tower showed they were remedial measures. Specifically, th e State referred to these as " interim remedial

measures " and as " remedial " alternatives in the ROD. Next Millenium, 2010 WL
8032748 , at *1 1. In addition, in its interrogatory response s , the State referred to

" additional remedial measures in order to complete the remediating of
Hazardous Substances. " [ Maldonado Decl. in Supp. of Motion for Summ. J., Ex

. 7, at 22]. Finally, defendants conte nd that Jeff Trad, an engineer at the DEC, on one occasion described the air stripper t ower as part of the "remediation " of the groundwater in a conversation with Commissioner Davis.

These generic uses of the word "remedial , " however, do not require
a fi nding that the measures were remedial in the statutory sense at the time they were implemeted

. The word " remedial" is often used in environmental discussions in its common every day sense, namely , " intended as a remedy. "
Webster's New Co llegiate Dictionary 970 (1980); s ee also Geraghty and Miller, Inc., 234 F.3d at 926 ( " [ c ] onfusion often results because the industry use of

' remediation ' is not synonymous with CERLCA ' s definition of ' remedial

. ' "). The- 33

-

use of the word by itself does not render an action " remedial " for purposes of the
statute of limitations

. City of Moses Lake v. United State s, 416 F. Supp. 2d 1015,
102 4 (E.D . Wash. 2005) (use of word " remedial " in a " generic sense " in several
documents over a thirteen

- year period " do[es] not cons titute an admission

. . . that this cleanup is now in its 're medial' phase as opposed to a 'removal' phase " under CERCLA). In its generic sense, "remedy" encompasses both temporary
measures to address immedi ate threats to public health as well as permanen t solutions to eliminate sources of contamination. Furthermore, New York law
defines " interim remedial measure " to include " activities to address both emergency and non

- emergency site conditions, " 6 N.Y. Comp. Codes R. & Regs.
tit

. 6, § 375

- 1.2(ab ), clearly encompassing what would be considered " removal "
actions under CERCLA.

In short, the Town's efforts here

-- a GAC and an air stripper tower

-- were r emoval measures taken to respond to the immediate health concerns presented by contaminated wel l water while it investigated the source of the
contamination and sought to develop a more coherent and fuller response to
eliminate permanently the underlying source of the contamination . This action- 34

-

was commenced within three years of the State's adopti on of a comprehensive remediation plan that incorporated the preexisting removal technologies.
CONCLUSION For the foregoing reasons, we hold that the cleanup activities at
issue were " removal " measures at all relevant times and the State's claims are
gover ned by the three

- year statute of limitations. Accordingly, the State’s suit is
not time

- barred and the judgment of the district court is VACATED and this case
is REMANDED for further proceedings consistent with this opinion

.