12-2894-cv

State of New York v. Next Millenium Realty

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2012

(Argued: May 13, 2013 Decided: October 15, 2013)

Docket No. 12-2894-cv

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 PlaintiffsConsolidated DefendantsCross 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 DefendantsAppellees,
- 2 -

UTILITY MANUFACTURING CO., INC., NEST EQUITIES, INC., AUDIE KRANZ, WILBUR 

KRANZ, KARMAL CHOPRA, TISHCON CORP., A/K/A TISHCON CORPORATION, JOE 

ELBAZ, GRAND MACHINERY, INC., WILLIAM GROSS,

Defendants-Consolidated DefendantsCross 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 ALLOY, EQUITY SHARE I ASSOCIATES,

Defendants-Consolidated DefendantsCross Defendants-Cross ClaimantsAppellees,

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 DefendantCross Defendant,

C&O REALTY CO.,

Defendant-Cross Defendant-Appellee,

SULZER METCO (US) INC.,

Third-Party DefendantCross-Defendant-Appellee,
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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 DefendantsCross 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 
- 4 -

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.

Before:

CHIN AND LOHIER, Circuit Judges,

AND SWAIN, 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.
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York. The district court granted summary judgment in favor of the defendantsappellees on the ground that the action was time-barred.

VACATED and REMANDED.

 

____________________________

BARBARA D. UNDERWOOD, Solicitor General

(Cecelia C. Chang, Deputy Solicitor 

General, Matthew W. Greico, Assistant 

Solicitor General, on the brief), for Eric T. 

Schneiderman, Attorney General of the 

State of New York, New York, New York,

for Plaintiffs-Appellants.

KATHLEEN M. SULLIVAN (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 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.
- 6 -

Philip C. Landrigan and Peter D. Aufrichtig, 

McCarthy Fingar LLP, White Plains, New 

York, 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, 

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 

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, New York, for 

Defendants-Appellees Grand Machinery, Inc. 

and 2632 Realty Development Corporation.

Michael 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 Kranz, Wilbur 

Kranz, New Equities, Inc., and Utility 

Manufacturing Co., Inc.
- 7 -

Thomas R. Smith, Bond, Schoeneck & King, 

PLLC, Syracuse, New York, for DefendantAppellee 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, 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, 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, New Jersey, for Defendant-Appellee 

Island Transportation Corporation.

Richard P. O’Leary, McCarter & English, LLP, 

New York, New York, for DefendantAppellee Sulzer Metco (US) Inc.

____________________________

 

CHIN, Circuit Judge:

In this case, the State of New York (the "State") sued defendantsappellees under the Comprehensive Environmental Response, Compensation, 

and Liability Act of 1980, 42 U.S.C. § 9601 et seq. ("CERCLA"), to recover certain
- 8 -

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 
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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 aquifer1in which groundwater flows approximately 55 to 65 

feet below the ground surface. In the early 1950'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 groundwater 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 registry of 

hazardous waste sites.3 

1. The GAC 

In 1989, the Town detected VOCs in two of its water supply wells at 

levels approaching New York State Maximum Contaminant Levels for drinking 

water.

4

 These wells were located in the Bowling Green Estates Water District

and were 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 others 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. & Regs. 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).
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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 water, including trichloroethylene and tetrachloroethylene, likely 

carcinogens, and recommended the installation of a granulated activated carbon 

adsorption system (the "GAC") to remove the VOCs. A GAC eliminates 

contaminants by pumping untreated water from the wells through carbon units 

and discharging the water into a groundwater storage reservoir. As the carbon 

bed reaches its useful adsorption capacity, however, its effectiveness diminishes 

considerably.

In the fall of 1990, the Town bought 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 has remained in 

operation since. 

2. The Air Stripper Tower

From December 10, 1990 through May 30, 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:
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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 efficiency and lower the costs of operation. 

(Davis Decl. ¶ 16). Commissioner Davis asked D&B to recommend a system 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 pumps 

the water to the GAC. 

On June 12 and 13, 1995, the Town took exploratory soil borings to 

determine whether the soil could bear the weight of an air-stripper tower. The 

Town awarded the contract to construct the 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 groundwater monitoring wells between 1996 and 2000, 
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installed four early warning groundwater wells in 1998, and collected soil and 

groundwater 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 meeting, 

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 since 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 the 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 Town. In 

September 2000, the DEC issued its final remedial investigation/feasibility study 

report. The report divided the remedial strategy into three parts, and separated 
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the NCIA into three corresponding operable units addressing ground-level 

contamination within the NCIA, contaminated 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 Remediation of Upper and Deep Portions of the Aquifer (to 225 ft 

below ground surface) with In-Well Vapor Stripping/Localized Vapor 

Treatment." This remedy involved pilot testing, the removal of contaminated 

soil, the construction of additional in-well vapor stripping wells (groundwater 

circulation wells), as well as the installation of new monitoring wells and a longterm groundwater monitoring program. It also incorporated the existing GAC 

and air stripper tower. The DEC estimated the full remediation would cost $3.5 

million and take seven years.5 

4. Tolling Agreements

The State entered into tolling agreements 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 responsibility for the NCIA. 
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NCIA -- tolling the statute of limitations. The earliest of these agreements came

into effect on June 27, 2001. 

B. Procedural History

On March 13, 2006, the State filed this cost-recovery suit against 

defendants pursuant to section 107 of CERCLA, 42 U.S.C. § 9607, 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 responding to the off-site groundwater contamination at the 

NCIA, 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 

recommendation ("R&R") recommending that defendants' motion for summary 

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 

the GAC from the State. 
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statute of limitations. State of New York v. Next Millenium Realty, LLC, No. CV-06-

1133, 2010 WL 8032748 (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 attributable to the State. It

held that the State's claims were subject to the statute of limitations for remedial 

actions, which bars claims filed more than six years after commencement of 

construction. The district court then concluded that the statute had begun to run 

either 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. CERCLA

Congress created CERCLA to address hazardous waste spills by 

authorizing the United States and the States to commence cleanup with public 
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money and then to seek the recovery of costs from polluters. 42 U.S.C. 

§ 9607(a)(4)(A). Congress deliberately structured this regime to allow federal 

and state governments to respond 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 

reimbursement 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 advance 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 effectuate 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 -

Section 107 of CERCLA authorizes federal and state governments 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 

health and safety. 42 U.S.C. § 9601(23) 7; see also Minnesota v. Kalman W. Abrams 

Metals, Inc., 155 F.3d 1019, 1024 (8th Cir. 1998) (removal actions are those "taken 

to counter imminent and substantial threats to public health and welfare");

United States v. W.R. Grace & Co., 429 F.3d 1224, 1244 (9th Cir. 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 release 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 necessary 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 measures 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.]. 
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. . . stressed the immediacy of a threat in deciding whether a cleanup is a removal 

action." (collecting cases)). Accord Memorandum from Stephen Luftig, 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/remedy/

pdfs/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 Schaefer 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 to 

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 rulemaking . . . 

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 nature. 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 release or threatened release of 
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Victor, 457 F.3d 188, 195 (2d Cir. 2006) (remedial actions are "generally long-term 

or permanent containment or disposal programs") (quoting 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, 234 F.3d 917, 926 (5th Cir. 2000) (internal quotation 

marks omitted)).

Removal and remedial actions are governed by different statutes of 

limitations. For removal actions, the 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, the government must seek to 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 contamination 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

Whether 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., 696 F.3d 180, 184 (2d Cir. 2012).

B. Analysis

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 -

Because 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 limitations had 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. The 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 characteristic of removal actions. See Kalman W. Abrams 

Metals, Inc., 155 F.3d at 1024; W.R. Grace & Co., 429 F.3d at 1244 (collecting cases). 

The contamination in Hempstead's drinking water posed an immediate threat. 

As 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 

approaching 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. 
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(Aff. of Daniel Davis, Ex. 1 at 3) (emphasis added). The Town installed the GAC 

in response to this impending substantial threat to public health. 

Similarly, the Town constructed the air stripper tower in direct 

response to rising VOC levels that were overwhelming 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 ensure 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 concerns 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 wells -- 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); see 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"); 

see also City of Moses Lake v. United States, 458 F. Supp. 2d 1198, 1213 (E.D. Wash. 

2006) (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 hallmarks of a 

'removal action' -- an interim response to minimize and stabilize imminent 

harms to human health"). Indeed, at the time the GAC and air stripper were 

built, neither the State nor the Town knew the source of the VOCs in the drinking 

water pumped from the wells, and they were responding to a water-supply 

problem, not an environmental cleanup concern. The contaminated water was 

already in the wells, and the water came out of the wells into the GAC 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 mitigate the damage from the NCIA, rather than to permanently 

eliminate 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. Indeed, the fact that the VOCs were migrating from the NCIA was not 

even confirmed 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 intended to permanently 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, determined 

that a number of new cleanup measures throughout the NCIA 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 qualify as "remedial," citing Morrison 

Enters., 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 found 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 address the source of the contamination -- the VOC plumes 

migrating from the 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 these 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). The 

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 relied 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(24). The court noted: 

[t]he City's narrow interpretation of the term remedial 

action would render 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 environment 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 

hazardous substances," the court concluded they were remedial.
- 27 -

In contrast, the Town's actions in this case do not involve the 

provision of alternative water supplies. The GAC 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, even 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 1244 ("As a practical matter, 

removal actions are often permanent solutions such as can be the case in a typical 

soil or drum removal.") (quoting EPA Guidance at 3 n. 3 (internal quotations 

marks omitted)); Geraghty and Miller, Inc., 234 F.3d at 927 ("Even 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, even if the GAC and the air stripper tower performed 

certain functions that might be considered "remedial," such 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) (definition 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 lists 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 tower, 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 known, with the 

understanding that it would address 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 such a removal measure 

automatically terminates as such at the moment a larger remedial plan incorporating it 
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2. Defendants' remaining arguments

a. The duration and cost of the actions

Defendants argue that the duration and cost of these measures 

indicate they are remedial actions. They 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 projects -- the GAC cost $1.25 million and the air 

stripper 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 measure "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 the removal 

status of the GAC and air stripper tower measures here ended, 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.
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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, defendants concede that "these limits are not 

binding here since the State performed the response measures," rather than the 

federal 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 emergency." 42 U.S.C. § 9604(c)(1); accord 40 C.F.R. § 300.415(b)(5)(i) 

and (ii). The 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 1226, 1249

(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: 

While some courts have looked to [the length of time 

necessary to complete an action] in distinguishing 
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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 removal rather than remedial in nature. 

EPA Guidance at 3 n.2. The EPA Guidance also recognizes that removal actions 

can involve considerable expense: 

[E]ven expensive and complex response actions may be 

removal action candidates if they are relatively timesensitive -- 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 combat rising levels of VOCs that threatened the water 

quality, the duration and cost of these measures do not mean that they 

constituted remedial actions ab initio. See id. at 4 n.4 (the $2 million and 12 month 

limitations "apply only to fund-financed actions, and serve as a fiscal check; they 

are not found in the statutory definition of 'removal' and do not control which 

actions can be taken as removals").
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b. The 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, the State referred to these as "interim remedial 

measures" and as "remedial" alternatives in the ROD. Next Millenium, 2010 WL 

8032748, at *11. In addition, in its interrogatory responses, 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 contend that Jeff Trad, an engineer at the DEC, on 

one occasion described the air stripper tower 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 finding 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 Collegiate Dictionary 970 (1980); see 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 
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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 States, 416 F. Supp. 2d 1015, 

1024 (E.D. Wash. 2005) (use of word "remedial" in a "generic sense" in several 

documents over a thirteen-year period "do[es] not constitute an admission . . .

that this cleanup is now in its 'remedial' phase as opposed to a 'removal' phase"

under CERCLA). In its generic sense, "remedy" encompasses both temporary 

measures to address immediate threats to public health as well as permanent 

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 removal measures taken to respond to the immediate health concerns

presented by contaminated well 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 adoption 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 

governed 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.