ELG Utica Alloys, Inc. v. Niagara Mohawk Power Corp.

 23-7575 ELG Utica Alloys, Inc. v. Niagara Mohawk Power Corp. 1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 5 6 August Term 2024 7 8 No. 23-7575 9 10 ELG UTICA ALLOYS, INC., 11 12 Plaintiff-Counter 13 Defendant-Appellant, 14 15 v. 16 17 NIAGARA MOHAWK POWER CORP., DBA NATIONAL GRID, 18 19 Defendant-Counter 20 Claimant-Third Party 21 Plaintiff-Cross Claimant- 22 Cross Defendant-Appellee, 23 24 SPECIAL METALS CORP., EMPIRE RECYCLING CORP., 25 26 Defendants-Cross 27 Defendants-Appellees, 28 29 GENERAL ELECTRIC COMPANY, 30 31 Defendant-Cross 32 Defendant-Cross 33 Claimant-Appellee, 34 35 CHICAGO PNEUMATIC TOOL COMPANY, LLC, 1 2 Defendant-Cross 3 Defendant-Cross 4 Claimant-Counter 5 Claimant-Appellee, 6 7 NATIONAL GRID GROUP PLC, 8 9 Defendant, 10 v. 11 12 CBS CORPORATION (successor-in-interest to Westinghouse Electric 13 Corporation) AKA PARAMOUNT GLOBAL, 14 15 Third-Party Defendant- 16 Cross Defendant-Appellee. 17 18 19 20 Appeal from the United States District Court 21 for the Northern District of New York 22 No. 16-cv-1523, Brenda K. Sannes, Chief District Judge, Presiding. 23 (Argued February 6, 2025; Decided July 17, 2025) 24 25 26 Before: PARKER, BIANCO, and NARDINI, Circuit Judges. 27 28 ELG Utica Alloys, Inc. (“ELG”) sued Defendants-Appellees, a group of its 29 former customers, in the United States District Court for the Northern District of 30 New York, asserting claims under the Comprehensive Environmental Response, 31 Compensation, and Liability Act (“CERCLA”). ELG remediated contamination at 32 one portion of a 23-acre facility in 2007, and pursuant to a 2015 consent order with 33 the New York State government, continues to remediate contamination at a 34 different portion of the facility. ELG seeks contribution for the costs of the 2015 35 cleanup from the Appellees, which ELG alleges are also responsible for the 36 contamination. Appellees moved for summary judgment, arguing that the six- 2 1 year statute of limitations applicable to certain CERCLA claims had elapsed. The 2 District Court (Sannes, C.J.) granted the motion, reasoning that, even though ELG 3 seeks costs only from 2015 onwards, the remediation began in 2007, and the 2015 4 work was a subsequent step in the work that commenced in 2007. Because the 5 2015 cleanup was part of the 2007 remediation, the District Court concluded that 6 the statute of limitations started to run in 2007 and elapsed in 2013, which was 7 before ELG sued. The District Court also imposed spoliation sanctions on ELG for 8 shredding over 23,000 pounds of potentially relevant documents. 9 We agree with the District Court that the statute of limitations on ELG’s 10 claims commenced once on-site physical remediation began in 2007. We also see 11 no error in the District Court’s imposition of spoliation sanctions. Accordingly, 12 we AFFIRM the judgment of the District Court and REMAND to the District Court 13 to order the agreed-upon spoliation sanction. 14 15 PETER T. STINSON, Steven W. Zoffer, Brett W. Farrar, Dickie, 16 McCamey & Chilcote, P.C., Pittsburgh, PA, and David L. Cook, 17 Phillips Lytle LLP, Rochester, NY, for Plaintiff-Counter 18 Defendant-Appellant ELG Utica Alloys, Inc. 19 20 KRISTIN C. ROWE, Dean S. Sommer, Young/Sommer LLC, 21 Albany, NY, for Defendant-Cross Defendant-Cross Claimant- 22 Appellee General Electric Company. 23 24 Yvonne E. Hennessy, Barclay Damon LLP, Albany, NY, for 25 Defendant-Counter Claimant-Third Party Plaintiff-Cross 26 Claimant-Cross Defendant-Appellee Niagara Mohawk Power 27 Corp., DBA National Grid. 28 29 James D. Mazzocco, Marc Felezzola, Babst Calland Clements 30 & Zomnir, P.C., Pittsburgh, PA, for Third-Party Defendant- 31 Cross Defendant-Appellee CBS Corporation. 32 33 Gary S. Bowitch, Castleton, NY, for Defendant-Cross 34 Defendant-Appellee Empire Recycling Corp. 35 3 1 MARY L. D’AGOSTINO, Doreen A. Simmons, Hancock 2 Estabrook LLP, Syracuse, NY, for Defendant-Cross Defendant- 3 Appellee Special Metals Corp. 4 5 Agnieszka Antonian, Connell Foley LLP, New York, NY, for 6 Defendant-Cross Defendant-Cross Claimant-Counter 7 Claimant-Appellee Chicago Pneumatic Tool Company, LLC. 8 9 BARRINGTON D. PARKER, Circuit Judge: 10 Appellant ELG Utica Alloys, Inc. (“ELG”) sued Appellees, a group of its 11 former customers, in 2016 in the United States District Court for the Northern 12 District of New York, asserting claims under the Comprehensive Environmental 13 Response, Compensation, and Liability Act (“CERCLA”). 42 U.S.C. §§ 9601 et seq. 14 ELG’s predecessor companies had conducted scrap-metal recycling operations on 15 a 23-acre facility in Utica, New York, which released hazardous chemicals that 16 contaminated soil and groundwater at the site and in nearby areas. ELG 17 remediated the contamination at one portion of the facility in 2007, and pursuant 18 to a 2015 consent order with the New York State government, continues to 19 remediate contamination at a different portion of the site. ELG seeks contribution 20 for the costs of the 2015 cleanup from parties who allegedly shared responsibility 21 for the contamination: Appellees Niagara Mohawk Power Corporation (“National 22 Grid”), Special Metals Corporation, Empire Recycling Corporation, General 4 1 Electric Company, and Chicago Pneumatic Tool Company. 1 Appellees moved for 2 summary judgment, arguing that the applicable six-year statute of limitations to 3 sue for contribution had elapsed. 4 The District Court (Sannes, C.J.) granted Appellees summary judgment, 5 agreeing that the limitations period had elapsed. The District Court reasoned that 6 even though ELG seeks costs only from 2015 onwards, on-site remediation began 7 in 2007, and the 2015 work required by the consent order was a continuation of the 8 2007 remediation. Consequently, the District Court concluded that the statute of 9 limitations started to run in 2007 and elapsed in 2013—before ELG brought suit. 10 Further, ELG argued that the 2007 remediation occurred on a different facility than 11 the 2015 remediation, which, it contends, means the statute of limitations for the 12 2015 cleanup could not have started in 2007. But the District Court concluded that 13 both cleanups occurred on the same 23-acre facility (albeit different portions), and 14 therefore, the statute of limitations commenced in 2007. The District Court also 15 imposed spoliation sanctions on ELG for the shredding of over 23,000 pounds of 16 potentially relevant documents. 1 Appellee CBS Corporation was added to the case as a Third-Party Defendant/Cross Defendant in 2019. National Grid and Empire Recycling Corporation both asserted that, to the extent they may be held liable for cleanup costs at the facility, the CBS Corporation is responsible for a share of those costs. 5 1 We agree with the District Court that the statute of limitations on ELG’s 2 claims commenced once on-site remediation began in 2007. Accordingly, we 3 conclude that the applicable six-year limitations period elapsed in 2013, and ELG’s 4 contribution claim is time-barred. We also see no error in the District Court’s 5 imposition of spoliation sanctions. 6 BACKGROUND 7 I. Factual Background 8 A. The Contamination 9 Appellant ELG Utica Alloys, Inc. (“ELG”) is the successor to two companies 10 that conducted scrap-metal recycling operations on a 23-acre site in Utica, New 11 York: Utica Alloys, Inc. and Universal Waste, Inc. These two companies 12 coordinated recycling operations and were managed by the same corporate 13 officers before merging to become ELG. 14 In 1977, the New York State Department of Environmental Conservation 15 (“the DEC”) discovered a stockpile of transformers and capacitors at the site and 16 expressed concern that toxic chemicals were leaking into the soil. In 1979, 17 sampling by the DEC confirmed that the site was contaminated with toxic 18 polychlorinated biphenyls (“PCBs”) and trichloroethylene (“TCE”). In February 6 1 1982, the DEC and the recycling companies (now ELG) entered into an agreement, 2 pursuant to which an environmental impact firm performed a field investigation 3 of all 23 acres of the site. The 1982 field investigation confirmed widespread 4 contamination in all of the sampled media (namely soil, groundwater, sewers, 5 sediment, and ambient air). In May 1986, the DEC designated the site a Class 2 6 site—meaning that it was a “significant threat” to the public health or 7 environment—and brought an enforcement proceeding to compel ELG to address 8 contamination at the site. Joint App’x 947. 9 B. ELG’s Response to the Contamination 10 The DEC enforcement action proceeded at a slow pace due to many 11 “motions, cross motions, appeals and interim decisions,” during which the 12 recycling companies refused to perform a Remedial Investigation/Feasibility 13 Study (“RI/FS”). Eventually, in December 1993, the companies agreed to perform 14 a partial investigation on the condition that the DEC bifurcate the site to enable a 15 phased approach to a full site-wide investigation. The DEC agreed to the phased 16 approach and divided the site into two parts: the Utica Alloys site (phase 1) and 17 the Universal Waste site (phase 2). 7 1 1. Phase 1: the 2007 Cleanup of the Utica Alloys Site 2 In 1999, the recycling companies entered a consent order with the DEC to 3 perform a RI/FS and interim remedial measures (“IRMs”). In 2007, after eight 4 years of investigation and planning, ELG implemented an IRM over the Utica 5 Alloys site: ELG excavated and disposed of 715 tons (more than 21 truckloads) of 6 contaminated soil. ELG also removed 6,951 gallons of contaminated groundwater. 7 2. Phase 2: the 2015 Cleanup of the Universal Waste Site 8 In 2012, the DEC notified ELG that it was a party responsible for 9 contamination present at the Universal Waste site, the nearby Mohawk River, and 10 an associated wetland. The DEC requested ELG develop and implement a two- 11 step “Remedial Program” for the Universal Waste site. ELG was asked to (1) 12 conduct a RI/FS to determine the nature and extent of contamination, and (2) create 13 a menu of options for the final remediation, one (or several) of which the DEC 14 would select. The DEC sent identical notice letters to Appellees Special Metals 15 and National Grid, advising them of their shared liability for the “disposal of PCBs 16 at the site in the late 1970s.” Joint App’x 1552. 17 Following a limited investigation, in 2015, the DEC and ELG entered a 18 consent order in which ELG agreed to perform a RI/FS and IRMs at the Universal 8 1 Waste site. Pursuant to the 2015 order, ELG removed a soil berm and 13,393 tons 2 of hazardous soil and debris. Remediation continues at the Universal Waste site. 3 II. Procedural Background 4 In 2016, ELG brought suit under Sections 107(a) and 113(f)(1) of CERCLA 5 seeking contribution for the costs of remediation at the Universal Waste site. 6 Following discovery, the Appellees jointly moved for summary judgment, 7 spoliation sanctions, and damages arguing that ELG’s claims were time-barred 8 and that ELG spoliated evidence. 9 In March 2023, the District Court granted Appellees’ motion. The District 10 Court dismissed ELG’s CERCLA Section 107(a) claim as time-barred and found 11 that ELG could not proceed under Section 113(f)(1) because it had not been sued 12 under Section 106 or Section 107(a). The District Court also granted spoliation 13 sanctions. On appeal, ELG challenges the District Court’s determinations as to 14 spoliation sanctions and its Section 107(a) claim. 15 STANDARD OF REVIEW 16 “We review de novo a district court’s decision to grant summary judgment, 17 construing the evidence in the light most favorable to the party against whom 18 summary judgment was granted and drawing all reasonable inferences in that 19 party’s favor.” Horn v. Med. Marijuana, Inc., 80 F.4th 130, 135 (2d Cir. 2023). Under 9 1 Rule 56(a), summary judgment may be granted only if all the submissions taken 2 together “show that there is no genuine issue as to any material fact and that the 3 moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 4 477 U.S. 317, 322 (1986) (quoting what is now Fed. R. Civ. P. 56(a)); see also Anderson 5 v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). 6 DISCUSSION 7 I. ELG’s CERCLA Claim Is Time-Barred. 8 ELG seeks contribution from the Appellees under Section 107 of CERCLA, 9 which allows a party to “seek reimbursement for all removal or remedial costs 10 associated with . . . hazardous materials on [contaminated] property.” Niagara 11 Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 120–21 (2d Cir. 2010) 12 (footnote omitted); 42 U.S.C. § 9607(a). 13 An action for the recovery of costs related to remedial actions under 14 CERCLA carries a six-year limitations period, which commences upon initiation 15 of physical on-site construction of the remediation. 42 U.S.C. § 9613(g)(2)(B). 16 Here, the District Court concluded that ELG initiated remedial action in 2007, 17 followed up with further remedial steps in 2015, and sued in 2016. On this basis, 18 the District Court concluded that ELG’s Section 107 claim is time-barred because 10 1 the statute of limitations started to run in 2007 and elapsed before ELG brought 2 suit. We agree. 3 A. The District Court Correctly Identified the Relevant “Facility” 4 Under CERCLA. 5 As a preliminary matter, ELG contends that the District Court erred when it 6 determined that the relevant CERCLA “facility” in question covers the entire 7 23-acre property. Instead, ELG asserts that the 1.5-acre Utica Alloys and 21.5-acre 8 Universal Waste sites are two separate facilities under CERCLA. ELG seeks 9 contribution for response costs incurred only at the Universal Waste site (from 10 phase 2 of the cleanup). It contends that because the 2007 cleanup addressed 11 contamination at a different CERCLA facility (i.e., the Utica Alloys site, during 12 phase 1), the 2007 response could not have triggered the statute of limitations for 13 cost recovery on the Universal Waste site. ELG thus argues that its Section 107 14 claim is not time-barred. See MPM Silicones, LLC v. Union Carbide Corp., 966 F.3d 15 200, 230 (2d Cir. 2020), as amended (Aug. 13, 2020) (if the contamination 16 “problems . . . were . . . elsewhere,” the subsequent remediation “should not be 17 considered part of the [first] remediation”). 18 The District Court concluded that the full 23-acre site constitutes a single 19 facility for CERCLA purposes for two principal reasons. First, the District Court 11 1 found that the “contamination at issue extends throughout the 23-acre Site and 2 results from the same sources.” ELG Utica Alloys, Inc. v. Niagara Mohawk Power 3 Corp., No. 16-CV-1523, 2023 WL 2655111, at *18 (N.D.N.Y. Mar. 27, 2023). Second, 4 the District Court reasoned that the “Universal Waste and Utica Alloys Sites have 5 shared common ownership, control, and management since at least 1984.” Id. 6 “This common ownership and management weigh[ed] in favor of finding a single 7 facility.” Id. 8 We see no error in the District Court’s reasoning. The District Court 9 correctly identified at least two factors relevant to the identification of a “facility.” 10 First, because CERCLA broadly defines “facility” to include “any site or area 11 where a hazardous substance has been deposited,” 42 U.S.C. § 9601(9), a site with 12 a single source of pollution is ordinarily considered one facility for CERCLA 13 purposes. 2 See New York v. Shore Realty Corp., 759 F.2d 1032, 1043 n.15 (2d Cir. 14 1985). Thus, an area that cannot be reasonably or naturally divided into multiple 2 CERCLA defines “facility” as follows: (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. 42 U.S.C. § 9601(9). 12 1 parts or functional units should be defined as a single facility. See, e.g., Axel 2 Johnson, Inc. v. Carroll Carolina Oil Co., 191 F.3d 409, 417 (4th Cir. 1999); United States 3 v. 150 Acres of Land, 204 F.3d 698, 709 (6th Cir. 2000); Sierra Club v. Seaboard Farms 4 Inc., 387 F.3d 1167, 1170–71, 1174–75 (10th Cir. 2004); cf. Nurad, Inc. v. William E. 5 Hooper & Sons Co., 966 F.2d 837, 843 (4th Cir. 1992) (holding that a site was divisible 6 into separate facilities where it “was subdivided and separate portions of it were 7 leased out to individual tenants”). 8 Second, sites that are managed or operated by a single party, and that are 9 used for the same purposes, ordinarily constitute a single facility under CERCLA. 10 See United States v. Township of Brighton, 153 F.3d 307, 313 (6th Cir. 1998) 11 (determining that an entire property constituted a single facility where “the entire 12 property was operated together as a dump”); Axel Johnson, Inc., 191 F.3d at 419 13 (holding that the entire property was a single facility where it “was at all relevant 14 times operated by a single party”). 15 The District Court correctly applied these factors to conclude that the full 16 23-acre site was a single facility. First, the District Court found, and the parties do 17 not contest, that the PCB and TCE contamination at issue extends throughout the 18 23-acre site and results from the same sources. Second, both sites have been owned 13 1 and managed by the same operators since at least 1984. It is undisputed that the 2 full 23 acres have been controlled by the “same voting stockholder, officers, and 3 directors” and that they “used the same buildings and areas at the Site.” Joint 4 App’x 1728 (Fact 3), 1730 (Fact 18). Indeed, Utica Alloys and Universal Waste were 5 both run by the same President, Joseph Jiampietro. These managers and operators 6 then used the full 23 acres for a single joint activity: recycling operations. 7 Universal Waste and Utica Alloys coordinated recycling operations by using the 8 same buildings, sharing costs, handling the same scrap material, and using the 9 same address. Finally, since 1984, the full 23-acre property has been owned by a 10 single company. 3 Given these factors, the District Court correctly concluded that 11 the Universal Waste and Utica Alloys sites composed a single facility for CERCLA 12 purposes. 13 ELG argues that the 23-acre property should be considered two separate 14 facilities because in 1998, the DEC divided the full facility into two sites—the 15 Universal Waste and Utica Alloys sites. But the DEC did not bifurcate the facility 16 because it fell along “reasonabl[e] or natural[]” lines. Axel Johnson, 191 F.3d at 417. 3 Initially, the 23-acre site was owned by Clearview Acres, Ltd., another Jiampietro company. Clearview leased the site to both Utica Alloys and Universal Waste for their recycling operations. Clearview, Utica Alloys, and Universal Waste were eventually acquired and merged to create ELG. 14 1 Instead, the DEC bifurcated the facility for administrative convenience. 2 Accordingly, the District Court concluded that the DEC’s 1998 bifurcation of the 3 23-acre site did not mean that there were two separate facilities under CERCLA. 4 We see no error. The DEC divided the 23-acre site in 1998 upon ELG’s request, 5 as part of a phased approach to the investigation and remediation of the property. 6 The DEC agreed to the phased approach on the condition that ELG provide “some 7 assurance that the second phase (investigation of the Universal Waste portion of 8 the site) [would] actually take place in a timely manner.” Joint App’x 1088. The 9 DEC noted that its purpose in bifurcating the site was “to facilitate an independent 10 remediation” of the two portions of the site. Id. at 1159. Significantly, the 1998 11 bifurcation of the facility occurred nearly twenty years after the discovery of 12 contamination. 4 The District Court correctly concluded that the DEC’s 13 administrative bifurcation of the facility to speed up remediation did not raise a 14 genuine issue of disputed fact as to whether the full 23-acre property was a single 15 facility for CERCLA purposes. 4 In fact, prior to the 1998 administrative bifurcation, ELG itself appeared to treat the full 23-acre site as a single facility. See Joint App’x 1729 (Facts 7–8) (between 1980 and 1998, all 23-acres of the site were listed on the Registry as a single site); id. (Facts 11–12) (ELG investigated the contamination on the full 23-acres of the site pursuant to a 1982 agreement with DEC). 15 1 B. The Statute of Limitations Began to Run in 2007. 2 Turning to the statute of limitations, CERCLA identifies two kinds of 3 cleanup actions that each carry a different limitations period: “[1] remedial 4 actions—generally long-term or permanent containment or disposal programs— 5 and [2] removal efforts—typically short-term cleanup arrangements.” Schaefer v. 6 Town of Victor, 457 F.3d 188, 195 (2d Cir. 2006). The statute of limitations for 7 “remedial” actions is “six years after the initiation of physical on-site construction 8 of the remediation.” Id. (emphasis added) (citing 42 U.S.C. § 9613(g)(2)(B)). The 9 limitations period for “removal” actions is “three years after the completion of the 10 removal.” Id. (emphasis added) (citing 42 U.S.C. § 9613(g)(2)(A)). 11 The District Court concluded that both the 2007 and 2015 cleanups were 12 remedial in nature and, consequently, the six-year limitations period began to run 13 in 2007. In 2007, ELG’s predecessors excavated 715 tons of contaminated soil and 14 pumped 6,951 gallons of contaminated groundwater for transfer and offsite 15 disposal. This work, according to the District Court, marked the “initiation of 16 physical on-site construction of the remediation” at the facility. Id. 17 The District Court further concluded that the subsequent 2015 18 remediation—which is ongoing—addresses the same underlying contamination 16 1 as the 2007 remediation, and therefore is part and parcel of the 2007 work. 2 Accordingly, the District Court reasoned that the statute of limitations for the 2015 3 cleanup also started to run in 2007 because the 2015 remediation was initiated in 4 2007. ELG concedes that the 2015 cleanup was remedial but contends that the 2007 5 cleanup was a removal action and, consequently, the 2015 remediation started a 6 separate limitations period. 7 We agree with the District Court that the 2007 work was remedial and that 8 the six-year statute of limitations began to run once the remedial work started. We 9 also agree that the ongoing 2015 cleanup is a continuation of the 2007 remediation, 10 and thus, did not restart the limitations period. 11 1. The 2007 Response Action Was Remedial in Nature. 12 CERCLA defines a removal action as: 13 the cleanup or removal of released hazardous substances from the 14 environment, such actions as may be necessary taken in the event of the 15 threat of release of hazardous substances into the environment, such actions 16 as may be necessary to monitor, assess, and evaluate the release or threat of 17 release of hazardous substances, the disposal of removed material, or the 18 taking of such other actions as may be necessary to prevent, minimize, or 19 mitigate damage to the public health or welfare or to the environment, 20 which may otherwise result from a release or threat of release. 21 42 U.S.C. § 9601(23). Meanwhile, CERCLA defines remediation as: 22 those actions consistent with permanent remedy taken instead of or in 23 addition to removal actions in the event of a release or threatened release of 17 1 a hazardous substance into the environment, to prevent or minimize the 2 release of hazardous substances so that they do not migrate to cause 3 substantial danger to present or future public health or welfare or the 4 environment. 5 42 U.S.C. § 9601(24) (emphasis added). 6 Based on these definitions, the District Court concluded that the 2007 soil 7 excavation and disposal and groundwater removal was remedial for three 8 reasons: (1) it was “consistent with a permanent remedy,” (2) it was “aimed at 9 eliminating the source of the PCB contamination,” and (3) there was “no evidence 10 that the 2007 soil excavation and disposal were conducted to address an imminent 11 threat or emergency situation.” ELG Utica Alloys, Inc., 2023 WL 2655111, at *19–20. 12 We agree. We have been clear that removal actions are “clean-up measures 13 taken in response to immediate threats to public health and safety that 14 address contamination at its endpoint.” MPM Silicones, 966 F.3d at 219 (emphasis 15 added) (internal quotation marks omitted). By contrast, remedial actions are 16 “typically actions designed to permanently remediate hazardous waste that 17 address contamination at its source.” Id. (emphasis added) (internal quotation 18 marks omitted). Thus, removal actions “are often planned and executed relatively 19 quickly in order to immediately abate public health hazards,” while remedial 20 actions take place “generally after months (if not years) of correspondence with 18 1 regulators.” Id. at 220. The “key distinction” between removal and remedial 2 actions, then, is “immediacy and comprehensiveness.” Id. at 219. 3 Soil excavation and groundwater disposal can occur during both removal 4 and remedial actions. 5 Accordingly, whether disposal of soil and groundwater is 5 a removal or remedial action turns on whether the work addresses an immediate 6 threat or seeks to permanently remedy the contamination at its source. See N.Y. 7 State Elec. & Gas Corp. v. FirstEnergy Corp. (“NYSEG”), 766 F.3d 212, 234 (2d Cir. 8 2014) (cleanups that are “not designed to address an imminent health concern” are 9 not removal actions). 10 The District Court concluded that the 2007 soil excavation and groundwater 11 disposal was not a removal action because ELG “offered no evidence that the 2007 12 soil excavation and disposal were conducted to address an imminent threat or 13 emergency situation.” ELG Utica Alloys, Inc., 2023 WL 2655111, at *20. We agree. 14 As the District Court pointed out, the 2007 soil removal addressed the same PCB 15 contamination that was first discovered in 1979 and occurred after eight years of 5 42 U.S.C. § 9601(23) (defining “removal” to include “the disposal of removed material”); id. § 9601(24) (defining “remedial action” to include “offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials”). 19 1 planning, investigation, and coordination with the DEC. 6 The 2007 response was 2 conducted pursuant to a 1999 consent order, after a “Remedial Investigation and 3 Interim Remedial Measures Alternative Analysis program” was initiated that 4 year. The 2007 response thus occurred after “months (if not years) of 5 correspondence with regulators,” investigation, and planning. MPM Silicones, 966 6 F.3d at 220. And the response did not occur until almost thirty years after the 7 discovery of contamination. ELG does not contest that the 2007 action sought to 8 remedy longstanding contamination known since 1979, nor does ELG suggest the 9 threat grew worse shortly before the 2007 response. Accordingly, the District 10 Court was correct to conclude that the 2007 soil excavation was not an “immediate 11 response” to an imminent threat, and therefore not a removal action. NYSEG, 766 12 F.3d at 233. 7 13 Instead, the 2007 work was “consistent with [a] permanent remedy” for PCB 14 and TCE contamination, because it sought to address the source of the underlying 6See, e.g., Dkt. No. 253-3 (1979 memorandum enclosing laboratory results confirming presence of PCBs and TCE); Dkt. No. 253-7 (1982 DEC letter indicating that it was investigating the Site); Dkt. No. 253-8 (1982 Agreement); Dkt. No. 253-9 (1984 waste management study by independent consultant); Dkt. No. 254-3 (1986 request to reclassify the Site); Dkt. No. 254-9, at 2–3 (1991 NYSDEC memorandum noting delay and stating that the Site was not an “imminent threat”). 7ELG’s own actions make clear that it did not think the contamination warranted an emergency removal action response: it “repeatedly sought to delay or avoid investigating or remediating the Site, often arguing to NYSDEC that no action should be required.” ELG Utica Alloys, Inc., 2023 WL 2655111, at *20 n.18. 20 1 contamination. 42 U.S.C. § 9601(24). CERCLA specifically lists such excavations 2 and offsite disposals as “actions consistent with permanent remedy.” Id. In MPM 3 Silicones, we held that “steps to permanently prevent contaminants . . . from 4 migrating away from their source—i.e., the location of their burial” are remedial. 5 966 F.3d at 222–23. Here, the disposal of contaminated soil and groundwater 6 equates to “permanent containment [and] disposal” of contamination. Schaefer, 7 457 F.3d at 195; see also NYSEG, 766 F.3d at 234–35 (excavation of contaminated soil 8 as part of an IRM was a remedial action); Schaefer, 457 F.3d at 204 (plaintiff’s “use 9 of a crane to dig, drag and spread soil on-site clearly constitutes construction” of 10 the remedial action). The District Court concluded the 2007 soil removal 11 addressed a longstanding contamination problem dating back to 1979 and was not 12 in response to an emergency. We see no error in that determination, and likewise 13 conclude that the soil removal was remedial in nature. 14 ELG argues that this 2007 response cannot be characterized as remedial 15 because it was “completed as part of an interim remedial measure required by [the] 16 DEC, rather than any sort of final and permanent cleanup.” ELG Utica Alloys, Inc., 17 2023 WL 2655111, at *19. But we have been clear that IRMs can constitute remedial 18 actions. See NYSEG, 766 F.3d at 234–35 (noting that “IRMs can either be removal 21 1 or remedial actions” and holding CERCLA claim was time-barred where the 2 cleanup at issue “was part of a larger remedial action”). The fact that a “final” 3 remedial plan had not been determined at that time is not dispositive. See Schaefer, 4 457 F.3d at 207–09 (“[T]he plain language of the statute . . . speaks of ‘actions 5 consistent with permanent remedy’ and nowhere mentions . . . approval of the final 6 remedial action plan . . . .”). 7 Consequently, we see no genuine dispute of material fact over whether the 8 2007 action was remedial in nature. The remaining question, then, is whether the 9 statute of limitations for ELG’s contribution claim began to run in 2007 or in 2015. 10 2. The District Court Correctly Concluded the Statute of 11 Limitations Began to Run with the Earlier 2007 Remediation. 12 ELG seeks contribution for the costs of remediation arising solely from the 13 2015 consent order. ELG asserts that the limitations period should run based on 14 the ongoing 2015 remediation, not the 2007 remediation. But the District Court 15 reasoned that because the 2007 and 2015 remediations addressed the same 16 underlying contamination known since 1979, the 2015 action was a subsequent 17 phase of the 2007 work and the limitations period consequently commenced in 18 2007. 22 1 We agree. The single-remediation principle “means simply and logically 2 that the plaintiff cannot escape the six-year limitation period and endlessly 3 postpone the bringing of suit by characterizing subsequent phases of the initial 4 project as new remediations.” MPM Silicones, 966 F.3d at 225. Under this 5 principle, if a later remedial action is a subsequent step in an earlier remediation, 6 the limitations period commences upon physical on-site construction of the earlier 7 remediation. Id. A later remediation is a subsequent step where a plaintiff has “a 8 general awareness of the contamination problems” at the time it initiates remedial 9 action and the subsequent remediation was “either (1) [a] further step[] towards 10 remediating the original problems, or (2) [a] step[] to remediate different aspects 11 of the originally known problem.” Id. (internal citations omitted). Under these 12 circumstances, we have held that applying the single-remediation principle is “fair 13 and sensible,” so long as there is “no impediment that would have prevented the 14 plaintiff[] from suing the contaminator within six years of initiating the 15 remediation.” Id. 16 By contrast, where a later remediation “seeks to address a different set of 17 problems—e.g.[,] problems that were non-existent, unknown, elsewhere, or 18 undisclosed to the regulators and unrevealed in an earlier remediation plan—[the 23 1 later remediation] should not be considered part of the [first] remediation.” Id. at 2 230. 3 The District Court applied the single-remediation principle and concluded 4 that the limitations period for the 2015 remediation commenced in 2007. We see 5 no error. It is undisputed that ELG (and its predecessors) had “a general 6 awareness of the [soil] contamination problems” since 1979. Id. at 225. The 2015 7 consent order led to further remedial investigation into a wider array of 8 contaminants in the soil than the 2007 soil excavation and led to the offsite disposal 9 of a PCB-contaminated soil berm. But the District Court concluded that these 10 responses ultimately addressed the same underlying contamination known to the 11 companies since 1979. Actions resulting from the 2015 consent order were 12 therefore “further steps towards remediating the original problems” or “steps to 13 remediate different aspects of the originally known problem.” Id.; see also NYSEG, 14 766 F.3d at 235–36 (applying single-remediation principle because both 15 remediations at the site addressed the same contamination from the same source). 16 ELG presented no evidence from which a reasonable factfinder could conclude the 17 contamination addressed by the 2015 consent order was a 24 1 “different . . . problem[]” that was “non-existent, unknown,” or not foreseen at the 2 time of the 2007 soil excavation. MPM Silicones, 966 F.3d at 230. 3 ELG argues the single-remediation principle should not apply because 4 remedial investigations are ongoing and a final remedy has not been selected for 5 any portion of the facility. Specifically, ELG contends that applying the 6 single-remediation principle while remedial investigations are ongoing would 7 encourage plaintiffs to bring premature suits asserting speculative costs. But if we 8 were to hold that the single-remediation principle does not apply until a final 9 remedy has been selected, a remediator could endlessly “delay suit” by engaging 10 in piecemeal excavations of contamination over a prolonged period of time— 11 which is exactly what the single-remediation principle seeks to guard against. Id. 12 at 229. That is why in MPM Silicones, we did not require that remedial 13 investigations be completed for the statute of limitations to run. Instead, we 14 reaffirmed that the single-remediation principle is appropriately applied where a 15 plaintiff has “at least a general awareness of the contamination problems” and 16 “undertake[s] at the outset to remedy them.” Id. at 225. 17 Finally, the District Court correctly concluded that applying the principle 18 was “not unfair” because “nothing precluded [ELG] from bringing a Section 107 25 1 cost recovery action . . . prior to the expiration of the limitations period.” ELG 2 Utica Alloys, Inc., 2023 WL 2655111, at *22. ELG does not contest this. As the 3 District Court noted, ELG was “aware well before it initiated the 2007 soil 4 excavation and disposal that certain [Appellees] might be responsible for a share 5 of response costs incurred in relation to the Site and that litigation might be 6 necessary to recover those costs.” Id. As early as 1989, after it declined to join 7 Special Metals and General Electric as defendants in the then-pending 8 enforcement action, the DEC advised ELG of its right to seek relief from those 9 Appellees but ELG elected not to do so. See Joint App’x 1731–32; see also id. at 10 1030–33; id. at 1048–51 (reporting that the company President “would like to [] 11 delay the investigation and remediation of the site as long as possible” and “does 12 not want, at this time, to sue General Electric, which is his best customer, or Special 13 Metals, another important customer”). Applying the single-remediation principle 14 is appropriate because nothing prevented ELG from suing within six years of 15 initiating the remediation. See MPM Silicones, 966 F.3d at 225. Accordingly, we 16 agree with the District Court that because the statute of limitations on ELG’s 17 Section 107 claim began to run in 2007, it is time-barred. 26 1 II. The District Court Did Not Abuse Its Discretion in Granting the 2 Motion for Spoliation Sanctions. 3 The District Court also imposed spoliation sanctions on ELG for shredding 4 23,020 pounds of documents. In 2021, ELG informed Appellees that historic 5 records relating to the Universal Waste and Utica Alloys sites were kept in a 6 storage room at ELG’s Herkimer, New York location. Defense counsel reviewed 7 hundreds of boxes in the storage room and located an invoice and other records 8 indicating that ELG used the services of another company to shred 23,020 pounds 9 of paper. After several Rule 30(b)(6) depositions of three ELG officials, the District 10 Court concluded, and ELG does not contest, that, in March 2014, “hundreds of 11 boxes” were intentionally destroyed, even though ELG had an “informal” policy 12 to never destroy documents. ELG Utica Alloys, Inc., 2023 WL 2655111, at *10–11, 13 13. 14 “Spoliation is the destruction or significant alteration of evidence, or the 15 failure to preserve property for another’s use as evidence in pending or reasonably 16 foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d 17 Cir. 1999). A party seeking sanctions based on spoliation must establish by a 18 preponderance of evidence: “(1) that the party having control over the evidence 19 had an obligation to preserve it at the time it was destroyed; (2) that the records 27 1 were destroyed with a culpable state of mind; and (3) that the destroyed evidence 2 was relevant to the party’s claim or defense such that a reasonable trier of fact 3 could find that it would support that claim or defense.” Klipsch Grp., Inc. v. ePRO 4 E-Commerce Ltd., 880 F.3d 620, 628 (2d Cir. 2018). The District Court concluded 5 that ELG had a duty to preserve documents relevant to the facility before March 6 2014, that ELG acted with gross negligence when it destroyed the documents in 7 question, and that the evidence was relevant to Appellees’ claim. 8 We see no error. First, “[t]he obligation to preserve evidence arises when 9 the party has notice that the evidence is relevant to litigation or when a party 10 should have known that the evidence may be relevant to future litigation.” Fujitsu 11 Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001). The District Court found 12 that long before March 2014, ELG was on notice that it should retain evidence that 13 might be relevant to the litigation. Around that time, ELG was embroiled in a 14 longstanding administrative enforcement dispute with the DEC concerning soil 15 contamination at the facility. ELG had already entered into multiple consent 16 orders with the DEC, including as recently as November 2012. That 2012 consent 17 order specified that ELG had the right “to seek and obtain contribution, 18 indemnification, and/or any other form of recovery” under CERCLA. Dkt. No. 28 1 258-10, at 9. The DEC also identified ELG as a “responsible party for the [Universal 2 Waste] site’s contamination” in a 2012 notice letter. Dkt. No. 258-7, at 3. That letter 3 specified that the State was sending identical notice letters to other responsible 4 parties, including Appellees Special Metals and National Grid. Id. at 2–3. Finally, 5 at the time of the documents’ destruction, ELG was awaiting a state-court decision 6 on its 2011 challenge to the DEC’s decision upholding the Universal Waste site’s 7 Class 2 designation. We agree with the District Court that the ongoing and 8 threatened litigation should have put ELG on notice of its duty to preserve 9 relevant documents. 10 Second, we see no error in the District Court’s conclusion that the 23,020 11 pounds of documents were “destroyed with a culpable state of mind.” Klipsch 12 Grp., Inc., 880 F.3d at 628. A party may establish a culpable state of mind by 13 “showing that the evidence was destroyed ‘knowingly, even if without intent to 14 [breach a duty to preserve it], or negligently.’” Residential Funding Corp. v. 15 DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002) (alteration in original) (emphasis 16 and citation omitted). The District Court concluded, and it is undisputed, that 17 ELG “knowingly destroyed the documents at issue in March 2014.” ELG Utica 18 Alloys, Inc., 2023 WL 2655111, at *13. 29 1 The District Court went further and concluded that the destruction of the 2 documents was grossly negligent, because ELG failed to institute a litigation hold 3 (and has failed to do so to date) and further “failed to implement reasonable 4 measures to preserve and protect relevant documents.” Id. We see no error. While 5 a failure to institute a litigation hold does not alone constitute gross negligence, it 6 is a factor relevant to the determination. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 7 135, 162 (2d Cir. 2012). The District Court explained that in addition to that failure, 8 ELG shredded a staggering 23,020 pounds of documents, despite having an 9 informal policy to never destroy documents. No record exists as to what specific 10 documents were destroyed, and ELG had no system for tracking which documents 11 were kept or removed from its storage facility. Under these circumstances, the 12 District Court appropriately concluded that ELG’s conduct amounted to gross 13 negligence. 14 Third, and finally, we agree with the District Court that the destroyed 15 documents would likely have been relevant and favorable to Appellees. We have 16 held that “a showing of gross negligence in the destruction . . . of evidence” can 17 “stand[] alone” to “satisfy[] the ‘relevance’ factor.” Residential Funding Corp., 306 18 F.3d at 109 (internal citation omitted). 30 1 On appeal, ELG does not challenge the choice of an appropriate sanction. 2 Instead, the parties jointly stipulated to a sanction of $300,000 should this Court 3 uphold the District Court’s conclusion that ELG spoliated evidence. Accordingly, 4 we conclude that the District Court did not abuse its discretion in imposing 5 spoliation sanctions on ELG. 6 CONCLUSION 7 For the reasons set forth above, we AFFIRM the District Court’s order 8 granting summary judgment to Appellees, AFFIRM the imposition of spoliation 9 sanctions, and REMAND to the District Court to order the agreed-upon sanction. 31