# Next Millennium Realty LLC v. Utility Manufacturing Co., Inc.

> District Court, E.D. New York · September 20, 2025

URL: https://www.frixlaw.com/law-library/cases/11141937

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 20, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11141937

## How later opinions describe it (automated extraction)

- concluding that a unilateral administrative order is not a “civil action” for the purposes of § 113(f)(1)
- finding a UAO is a “civil action” under Section 113(f)(1), reasoning that the burden it places on a party is similar to that of a court proceeding
- holding that § 113(f)(1) relief is unavailable for parties who are “merely subject to administrative orders, as opposed to final consent decrees, judgments, or apportionments of liability”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
NEXT MILLENNIUM REALTY LLC, 101 FROST
STREET ASSOCIATES, L.P.,

Plaintiffs, MEMORANDUM AND ORDER
22-CV-02529 (OEM) (JMW)
-against-

UTILITY MANUFACTURING CO., INC., NEST
EQUITIES, INC.

Defendants.
---------------------------------------------------------------x
ORELIA E. MERCHANT, United States District Judge:

Plaintiffs Next Millennium Realty LLC (“Next Millennium”) and 101 Frost Street
Associates, L.P. (“101 Frost Street”) (“Plaintiffs”) bring this action under the Comprehensive
Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq.,
and the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201, against defendants Utility
Manufacturing Co., Inc. and Nest Equities, Inc. (“Defendants”). Compl., ECF 1, at 1. Plaintiffs
assert, inter alia, CERCLA cost recovery and contribution claims, under CERCLA §§ 107(a) and
113(f)(1), respectively. Before the Court is Defendants’ fully briefed motion for judgment on the
pleadings.1
For the following reasons, Defendants’ motion is granted in part and denied in part.

1 Defendants’ Memorandum of Law in Support of Motion for Judgment on the Pleadings (“Defs.’ Mem.”), ECF 39-7;
Declaration of Castiglione in Support of Defendants’ Motion, ECF 39-1, (“Castiglione Decl.”), ECF 39-1, and the
exhibits attached thereto; Plaintiffs’ Memorandum of Law in Opposition (“Pls.’ Opp.”), ECF 40; Declaration of
Devaprasad in Opposition (“Devaprasad Decl.”), ECF 40-1, and the exhibits attached thereto; and Defendants
Memorandum of Law in Reply (“Defs.’ Reply”). ECF 39-8.
BACKGROUND2
A. Factual Background
In September of 2011, the United States Environmental Protection Agency (“EPA”) listed
an area of contaminated groundwater within the towns of Hempstead, New York and Oyster Bay,
New York on the National Priorities List. Compl. ¶ 14. The area, known as the New

Cassel/Hicksville Groundwater Contamination Superfund Site (the “Site”), includes an estimated
6.5 square miles that have been contaminated with hazardous substances regulated under CERCLA,
including volatile organic compounds (“VOC”). Id. ¶¶ 14-15; Castiglione Decl. Ex. A (“EPA 2018
UAO”), ECF 39-2, ¶ 8. Within the Site is an area known as the New Cassel Industrial Area
(“NCIA”), which “encompasses approximately 170 acres of industrial and commercial property”
and “was developed for industrial use during the 1950s through the 1970s.” Compl. ¶ 16; EPA
2018 UAO ¶¶ 11-12.
The parties are current or former owners and/or operators of properties located within the
NCIA. Next Millennium is the current owner of the property at 89 Frost Street, Compl. ¶ 3, and

101 Frost Street is the current owner of the property at 101 Frost Street, id. ¶ 5. Defendants are
current or former owners and/or operators of the property at 700 Main Street, Westbury, New York.
Id. ¶¶ 7, 9, 23, 24.
The Nassau County Department of Health first identified extensive VOC contamination in
the groundwater beneath the Site in 1986. EPA 2018 UAO ¶ 13. The NCIA, which is located
upgradient from the contamination, was isolated as the principal source. Id. Beginning in 1994,
the New York State Department of Environmental Conservation (“NYDEC”) began conducting

2 The facts described herein are taken from the Complaint, together with documents incorporated into the Complaint
by reference, and documents of which the Court takes judicial notice. For the purposes of the motion for judgment
on the pleadings, the Court accepts all factual allegations in the Complaint as true and draws all reasonable inferences
in Plaintiffs’ favor. L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011).
preliminary site assessments, field investigations, and groundwater sampling. Id. ¶¶ 16-18. In
September 2000, NYSDEC issued a Remedial Investigation/Feasibility Study (“RI/FS”) Report
under New York State authority for an area referred to as the “New Cassel Industrial Area Off-site
Groundwater,” which corresponds with what the EPA later designated as Operable Unit 1 (“OU-
1”). Id. ¶ 18. NYSDEC determined the groundwater downgradient from the NCIA contained

VOCs, including tetrachloroethylene (“PCE”), trichloroethylene (“TCE”), and 1,1,1,-
Trichloroethan (“1,1,1-TCA”), in amounts that exceeded New York State standards, criteria, and
guidance. Id. To address the environmental conditions, NYSDEC selected remedies relating to
17 facilities within the NCIA and the New Cassel Industrial Area Off-site Groundwater area. Id.
¶¶ 17, 19.
On March 13, 2006, NYDEC brought an action against the parties under, inter alia,
CERCLA § 107(a), 42 U.S.C. § 9607(a), to recover past and future costs incurred in response to
the release of hazardous substances within the NCIA. See 06-CV-1133 (SJF) (AYS), E.D.N.Y.
(the “2006 Action”).

During the pendency of the 2006 Action, on December 27, 2010, NYSDEC requested that
EPA include the Site on the National Priorities List, which was ultimately listed on September 16,
2011. EPA 2018 UAO ¶ 22. EPA designated an area of shallow and deep groundwater
contamination, within and downgradient of the NCIA, which it refers to as OU-1. Compl. ¶¶ 17-
18; EPA 2018 UAO ¶ 23. EPA further divided OU-1 into the Eastern Plume, Central Plume,
Western Plume, and OU-1 Deep Plume. Compl. ¶ 20. Based on the results of EPA’s Supplemental
RI/FS for OU-1, EPA issued a Record of Decision (“ROD”) on September 30, 2013, selecting a
remedy for OU-1 including in-situ and ex-situ groundwater treatments, in-situ chemical treatment
of high concentration contaminant areas, implementation of long-term groundwater monitoring,
development of a Site Management Plan, institutional controls maintaining existing local
requirements, and issuance of informational devices. Compl. ¶ 19; EPA 2018 UAO ¶ 26.
On February 9 2016, Judge Feuerstein issued an opinion and order in the 2006 Action,
finding Next Millennium and 101 Frost Street liable “under Section 107(a) of CERCLA, 42 U.S.C.
§ 9607(a), for response costs incurred by the State in responding to contamination at and emanating

from the NCIA, and specifically into the off-site area referred to herein as State OU-3/EPA OU-
1.” New York v. Next Millenium Realty, LLC, 160 F. Supp. 3d 485, 526 (E.D.N.Y. 2016). This
resulted in a consent decree between NYDEC and Plaintiffs, approved by Judge Feuerstein on June
1, 2016. Castiglione Decl., Ex. D (“State-Frost Street Settlement Agreement”), ECF 39-5; see 06-
CV-1133, ECF 483.3 Defendants also entered into a settlement agreement with the State resolving
the State’s cost recovery actions against them in January 2015. Castiglione Decl., Ex. E, (“State-
Utility Parties’ Settlement Agreement”), ECF 39-6.
On March 22, 2018, EPA issued a Unilateral Administrative Order (“UAO”) under
CERCLA § 106(a). Compl. ¶¶ 21-22; EPA 2018 UAO at 1. The UAO directed the parties to

perform a Remedial Design (“RD”) for OU-1 at the Site, EPA 2018 UAO ¶¶ 2, 45, because of their
role as responsible parties within the meaning of CERCLA §107(a)(1), id. ¶¶ 29, 38, 39, 42, 44(d).
EPA then issued an amended UAO on June 15, 2019, ordering the parties to implement another

3 Without admitting liability, Plaintiffs paid the State $700,000 to resolve “Matters Addressed” in the settlement,
$455,00 of which was allotted to the State’s past costs for NYDEC’s OU-3. Id. at 5-6. “‘Matters Addressed’ is defined
to include claims that were, or could now or hereafter be, asserted by the State against the [Plaintiffs] arising out of or
in connection with the disposal, release, and/or threat of release of hazardous substances at or from the NCIA and/or
at or from the sites alleged to have been owned or operated by the Frost Street Defendants, including but not limited
to any and all injuries to natural resources.” Id. at 5, ¶ 2. “Matters Addressed does not include (1) the State’s claim
for costs . . .” under CERCLA § 104(c)(3), and (2) the State’s claims for response costs arising out of the NYDEC’s
OU-1 and OU-2. Id. at 5-6, ¶ 2. The agreement also provides that Plaintiffs “may assert any claims or causes of action
against any person other than the State, to the extent permitted by law, for any costs, damages, contribution or
attorney's fees arising out of any of the Matters Addressed in this Fourth Supplemental Consent Decree.” Id. at 7, ¶
7.
Remedial Investigation/Remedial Design (“RI/RD”) and deeming them “jointly and severally
liable for response costs at the Site.” Compl. ¶¶ 25, 27.
Plaintiffs allege that they have complied with EPA’s amended UAO and that, as a result,
they have incurred and continue to incur response costs to implement the RI/RD, including
engineering fees, attorney’s fees, and other expenses and costs related to the mitigation of

environmental conditions at the Site. Id. ¶¶ 28-29. In addition, Plaintiffs have incurred response
costs associated with remediation of the Eastern Plume and the OU-1 Deep Plume prior to the
issuance of the UAO. Id. ¶¶ 32-40.
Plaintiffs allege that, as set out in the UAO, because “Defendants are either current, former
or successor operators, arrangers and/or owners of CERCLA sites and have contributed to” Site
contamination and the Plumes’ groundwater contamination, Defendants are jointly and severally
liable for past and future response costs. Id. ¶¶ 30-40. Despite this, Defendants have not incurred
or shared in any past, present, or future response costs for which they are jointly and severally
liable. Id. ¶¶ 30-31, 35-37.

Plaintiffs seek monetary payment for “all costs incurred by Plaintiffs to the date of
judgment,” under § 107(a), “Defendants’ share of response costs incurred by Plaintiffs to the date
of judgment,” under § 113(f)(1), a “declaratory judgment holding Defendants liable for all
response costs incurred by Plaintiffs to date, to be incurred in the future,” under §§ 113(g)(2),
107(a)(4)(B), and the DJA, as well as common law indemnification and restitution for any
response costs or damages. Id. at 13.
B. Procedural History
Plaintiffs initiated this action by filing of the complaint on May 3, 2022, Compl., and
Defendants filed their answer and counterclaims on July 8, 2022, ECF 14. The parties appeared
for an initial conference before Magistrate Judge Wicks on July 13, 2022. ECF 15. Plaintiffs filed
an answer to Defendants’ counterclaims on July 26, 2022. ECF 17.
The case was reassigned to the undersigned on July 7, 2023, and throughout late 2023 and
2024, the parties scheduled and requested adjournments for numerous settlement conferences. See
ECF 19, 20, 21, 22, 24, 25, 26, 27, 28, 30. A settlement conference was held on April 20, 2024;

progress was made but settlement was ultimately unsuccessful. See Minute Order dated 4/20/2024.
All fact and expert discovery closed on December 31, 2024. See Minute Order dated 5/13/2024.
On January 16, 2025, Defendants requested a premotion conference in anticipation of the instant
motion for judgment on the pleadings, ECF 34, which the Court denied and instead set a briefing
schedule. See Order dated January 24, 2025.
LEGAL STANDARD
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” FED. R. CIV. P. 12(c). “The same standard applicable to Fed. R.
Civ. P. 12(b)(6) motions to dismiss applies to Fed. R. Civ. P. 12(c) motions for judgment on the

pleadings.” Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). To survive a
motion for judgment on the pleadings under to Rule 12(c), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Matzell v.
Annucci, 64 F.4th 425, 433 (2d Cir. 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009));
Goldberg v. Pace Univ., 88 F.4th 204, 210 (2d Cir. 2023). “A claim is plausibly alleged ‘when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Matzell, 64 F.4th at 433 (quoting Iqbal, 556 U.S.
at 678); see Vengalattore v. Cornell Univ., 36 F.4th 87, 102 (2d Cir. 2022) (quoting Iqbal, 556 U.S.
at 678). The assumption that allegations contained in the complaint are true is “inapplicable to
legal conclusions.” L-7 Designs 647 F.3d at 430 (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009). A motion for judgment on the pleadings should be granted “if, from the pleadings, the
moving party is entitled to judgment as a matter of law.” Burns Int’l Sec. Servs., Inc. v. Int’l Union,
United Plant Guard Workers of America (UPGWA) & Its Local 537, 47 F.3d 14, 16 (2d Cir. 1995)
(per curiam).

DISCUSSION
Defendants seek to dismiss the Complaint under Federal Rule of Civil Procedure 12(c),
arguing that Plaintiffs’ first through fifth causes of action should be dismissed for failure to state a
claim, and that the Court should decline to exercise supplemental jurisdiction on the remaining
state law claims. The primary issue presented to the Court is under which CERCLA provision
Plaintiffs may bring suit to recover response costs, if at all.
A. Cost Recovery and Contribution under CERCLA
CERCLA was enacted to ensure that those responsible for any damage, environmental
harm, or injury from hazardous substances released into the environment bear the costs of their

actions. Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 120 (2d Cir. 2010)
(quoting S. Rep. No. 96-848, at 13 (1980)). “The Act seeks ‘to promote the timely cleanup of
hazardous waste sites and to ensure that the costs of such cleanup efforts [are] borne by those
responsible for the contamination.’” Atl. Richfield Co. v. Christian, 590 U.S. 1, 6 (2020) (quoting
CTS Corp. v. Waldburger, 573 U.S. 1, 4 (2014)).
The statute directs the EPA to compile a prioritized list of contaminated sites, commonly
referred to as “Superfund Sites,” on the National Priorities List. 42 U.S.C. § 9605. It in turn
“empowers the federal government and the states to initiate comprehensive cleanups and to seek
recovery of expenses associated with those cleanups.” Niagara Mohawk, 596 F.3d at 120; see §§
9604, 9615, 9607(a)(4)(A). Alternatively, the federal government may compel responsible parties
to perform the cleanup. § 9606(a).
“Under CERCLA, responsible parties are strictly liable for the costs of the cleanup.”
Revitalizing Auto Communities Env’t Response Trust v. Nat’l Grid USA, 92 F.4th 415, 439 (2d Cir.
2024) (“RACER”) (citing 42 U.S.C. § 9607(a)). However, the statute “offers a reprieve” by

providing responsible parties with three avenues to recoup costs from potentially responsible
parties (“PRPs”). Id. PRPs are “parties that may be held accountable for hazardous waste in
particular circumstances.” Atl. Richfield Co., 590 U.S. at 20. Indeed, CERCLA “authorize[s]
parties in different procedural positions to recover costs incurred in cleaning up contamination:
‘(1) section 107(a), which permits the general recovery of cleanup and prevention costs; (2) section
113(f)(1), which creates a contribution right for parties liable or potentially liable under CERCLA;
and (3) section 113(f)(3)(B), which creates a contribution right for parties that have resolved their
liability by settlement.’” W.R. Grace & Co.-Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 89 (2d Cir.
2009) (quoting Consol. Edison, Co. of New York v. UGI Utilities, Inc., 423 F.3d 90, 94 (2d Cir.
2005)); accord Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 163 (2004).

Section 107 authorizes the United States, a state, or “any other person,” to seek
reimbursement for all removal or remedial costs associated with the hazardous materials on the
property, provided that such actions are consistent with the National Contingency Plan—the
federal government’s criteria for responding to the release of hazardous substances. 42 U.S.C. §
9607(a)(4). “‘Any [other] person’ ‘includes a PRP that voluntarily cleans the site.’” RACER, 92
F. 4th at 439 (quoting Niagara Mohawk, 596 F.3d at 121)); accord Consol. Edison, 423 F.3d at 100
(observing that §107 “permits a party that has not been sued or made to participate in an
administrative proceeding, but that, if sued, would be held liable under section 107(a), to recover
necessary response costs incurred voluntarily, not under a court or administrative order or
judgment”).
Added as part of the Superfund Amendments and Reauthorization Act (“SARA”), 100 Stat.
1613, Congress expressly authorized contribution under CERCLA with § 113. Niagara Mohawk,
596 F.2d at 121. That provision provides two avenues of relief for contribution. The first, under

§ 113(f)(1), a PRP who has been sued under §§ 106 or 107 may seek contribution from any PRP
during or following any civil action brought under those Sections. 42 U.S.C. §9613(f)(1). A
private party may only pursue a claim for contribution under § 113(f)(1) if it has been subject to a
“civil action” initiated under §§ 106 or 107. Cooper Indus., 543 U.S. at 165. Section 113(f)(3)(B)
provides that once a party has settled its CERCLA liability with the government, including in an
“administrative or judicially approved settlement,” it may seek contribution from others that are
not a party to that settlement. 42 U.S.C. § 9613(f)(3)(B). Section 113(f) claims must be brought
within three years of the date of judgment in any action for recovery of costs or damages, or the
date of an administrative or judicially approved settlement. Id. § 9613(g)(3); see RACER, 92 F.4th

at 439.
B. Interplay between §§ 113(f) and 107(a)
The Supreme Court has made clear that §§ 113(f) and 107(a) are “complementary yet
distinct,” United States v. Atl. Rsch. Corp., 551 U.S. 128, 138 (2007), while at the same time
recognizing that the two provisions provide “similar and somewhat overlapping remed[ies],” Key
Tronic Corp. v. United States, 551 U.S. 809, 816 (1994). For example, a PRP may undertake its
own response costs on its own accord – making it eligible for a cost recovery action under § 107(a).
Atl. Rsch., 551 U.S. at 139, n.6. Prior to or after incurring those response costs, the PRP may have
settled with the government – making it eligible for a contribution action under §§ 113(f)(3)(B),
see id. – or the PRP may be sued by a third party under § 107(a) – making it eligible for a
contribution action under § 113(f)(1), see DMJ Assocs., L.L.C. v. Capasso, 181 F. Supp. 3d 162,
168 (E.D.N.Y. 2016).
Indeed, in United States v. Atlantic Research, the Supreme Court left open the question of
whether a responsible party who has incurred cleanup costs after settling with the government may

seek recovery of such costs under § 107, § 113(f), or both. 551 U.S. at 139 n. 6; see RACER, 92
F.4th at 440, n. 11; see also Niagara Mohawk, 596 F.3d at 127 n. 17. Since Atlantic Research,
every federal court of appeals to have considered the question has concluded that § 107(a) and
113(f)(3)(B) are mutually exclusive remedies. See, e.g., Niagara Mohawk, 596 F.3d at 128 (party
who settled liability as part of administrative consent could only proceed under § 113(f)(3)(B),
despite incurring direct response costs); Cranbury Brick Yard, LLC v. United States, 943 F.3d 701,
709 (3d Cir. 2019) (contribution immunity as a result of consent order barred cost recovery action
under § 107); Hobart Corp v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014)
(settlement triggered availability of § 113(f)(3)(B) contribution claim, barring § 107 recovery);

Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013) (same); Morrison Enters., LLC v. Dravo
Corp., 638 F.3d 594, 603-04 (8th Cir. 2011) (same); Asarco LLC v. Atl. Richfield Co., 866 F.3d
1108, 1117 (9th Cir. 2017) (same); Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1236-37 (11th Cir.
2012). That is, once a party has resolved its CERCLA liability through an administrative or judicial
settlement and therefore triggered the availability of a contribution action under § 113(f)(3)(B),
that party must proceed under § 113(f)(3)(B), even if a cost recovery action under § 107(a) would
otherwise be available.
What is less clear is whether the availability of a § 113(f)(1) action, arising out of the
government’s or a third-party’s suit for cost recovery, bars a § 107(a) claim. The Second Circuit
has not squarely addressed the issue, and at least one court in this district has held that that it does
not. See DMJ Assocs., 181 F. Supp. 3d 162. In DMJ Associates L.L.C. v. Capasso, the plaintiff
had been sued by other PRPs under § 107 but had not resolved its liability to the United States or
the State of New York. Id. at 167. The court held that, under Atlantic Research, plaintiffs could
maintain both an action under § 107(a), solely for recovery of directly incurred response costs, and

a separate action under § 113(f)(1) for funds paid in contribution. Id. at 168-69. By contrast, in a
case brought by Plaintiffs to recover the defendant United States Department of Energy’s share of
funds spent responding to the NCIA and resolving its liability to NYSDEC, the court reasoned in
dicta that “the Consent Orders/Modified Consent Orders, the NYSDEC OU-3 Settlement, and the
UAO (and possibly also the commencement of the 2006 Action) all trigger Section 113(f) as the
exclusive avenue for relief with respect to Plaintiffs’ costs at the Frost Street Sites and EPA OU-
1/DEC OU-3.” 101 Frost St. Assocs., L.P. v. U.S. Dep’t of Energy, 17-CV-03585 (JMA) (ARL),
2019 WL 4415387, at *10 (E.D.N.Y. Sept. 16, 2019).4 Other circuits have also taken this view.
In NCR Corp. v. George A. Whiting Paper Co., the Seventh Circuit “easily dispatched” of the

plaintiff’s 107(a) claim for cost recovery where it had been sued by the EPA to enforce a unilateral
administrative order; “thus, a section 113(f)[(1)] action is available . . . [and] section 107(a) is not
available.” 768 F.3d 682, 691-92 (7th Cir. 2014).

4 The holding in 101 Frost St. Associates L.P. v. United States Department of Energy appears to have rested primarily
on a finding that Plaintiff had a 113(f)(3)(B) claim. See id. The parties did not dispute that Plaintiffs had a
§ 113(f)(3)(B) claim available, and despite stating that Plaintiffs “also appear[ed]” to have a § 113(f)(1) claim arising
out of NYSDEC’s 2006 Action, the “sole disputed issue [was] whether Plaintiffs can also pursue a cost recovery action
under Section 107(a), in addition to the contribution action under Section 113(f)[.]” Id. at *8. Further, the court noted
that “Plaintiffs assume that the UAO either fully resolves their liability for the purposes of Section 113(f)(3)(B) or
qualifies as a ‘civil action’ under Section 113(f)(1) and, thus, entitles them to contribution for the costs incurred in
effectuating the EPA’s order. The Moving Defendants do not challenge this.” For the reasons discussed below, see
infra Section C, the Court disagrees.
This Court agrees with the latter view. To allow a plaintiff who qualifies for a §113
contribution claim to proceed under § 107(a) “would in effect nullify the SARA amendment and
abrogate the requirements congress placed on contribution claims under [42 U.S.C.] § 9613.”
Niagara Mohawk, 596 F.3d at 128. “‘When Congress acts to amend a statute, [courts] presume it
intends its amendment to have real and substantial effect.’” Id. (quoting Stone v. INS, 514 U.S. 386,

397 (1995)).5
C. Availability of § 113(f)(1) Claim
Because the Court finds that the availability of either a § 113(f)(1) or 113(f)(3)(B) claim
will bar a § 107 claim, the Court must first determine whether Plaintiffs have an available claim
under § 113(f)(1).6
In determining whether Plaintiff has a cause of action under § 113(f)(1), the Court must
resolve whether a unilateral administrative order issued under § 106 qualifies as a “civil action.”
In Cooper Industries, Inc. v. Aviall, the Supreme Court made clear that a party may only pursue a
§ 113(f)(1) contribution action if it had been subject to a “civil action” as specified in that section.

543 U.S. at 168. However, it declined to address whether an administrative order issued under §

5 A second rationale – CERCLA’s contribution protection under § 113(f)(2) – is often cited as an additional justification
for the mutual exclusivity of § 113(f) and § 107(a). See, e.g., Solutia, 672 F.3d at 1237; Agere Systems Inc. v. Advanced
Env’t Tech. Corp., 602 F.2d 204, 228 (3d Cir. 2010) (noting that allowing a party to pursue a claim under § 107 would
theoretically allow that party to impose joint and several liability on a defendant without any fear of a counterclaim);
but see Bernstein, 733 F.3d at 205 (finding contribution bar justification unpersuasive). However, that subsection
protects only those parties who have resolved their liability with the United States or a State from other private claims
for contribution and is thus inapplicable to § 113(f)(1).

6 Plaintiffs have not alleged a cause of action under § 113(f)(3)(B), see Compl., nor, as Defendants argue, could they.
The UAO in this case, unlike a consent decree or settlement, does not resolve Plaintiffs’ CERCLA liability for the
areas at issue and therefore do not meet the statutory trigger. See 2018 UAO at 25 (“Nothing in this order limits the
rights and authorities of the EPA and the United States . . . To bring an action against Respondents under Section 107
of CERCLA . . .”). Nor does the settlement with New York State, which excluded any available remedies by the
United States, give rise to such a claim for contribution of funds stemming from EPA’s UAO. See State-Frost Street
Settlement Agreement at 5.
106, like the UAO at issue here, qualifies as a civil action. Id. at 168 n.5 (citing 42 U.S.C. §
9613(f)(1)).
Defendants argue that only “lawsuits” qualify as civil actions to trigger an action under §
113(f)(1). Defs.’ Mem. at 22. As Plaintiffs point out, Pls.’ Opp at 15, the Second Circuit has not
decided the issue, see AMW Material Testing, Inc. v. Town of Babylon, 187 Fed. App’x 24, 26 (2d

Cir. 2006) (summary order), and several district courts are split, compare Emhart Indus., Inc. v.
New England Container Co., Inc., 478 F. Supp. 2d 199, 203 (D.R.I. 2007) (holding that § 113(f)(1)
relief is unavailable for parties who are “merely subject to administrative orders, as opposed to
final consent decrees, judgments, or apportionments of liability”); Raytheon Aircraft Co. v. United
States, 435 F. Supp. 2d 1136, 1142-43 (D. Kan. 2006) (concluding that a unilateral administrative
order is not a “civil action” for the purposes of § 113(f)(1)); Pharmacia Corp. v. Clayton Chem.
Acquisition LLC, 382 F.Supp.2d 1079, 1087 (S. D. Ill. 2005) (same); Blue Tee Corp. v. ASARCO,
Inc., 2005 WL 1532955 at *3–4 (W. D. Mo. June 27, 2005) (same); and United States v. Taylor,
909 F. Supp. 355, 365 (M.D.N.C. 1995) (“A PRP which conducts an environmental cleanup will

not necessarily have suffered a judgment or court approved settlement and, thus cannot bring a
contribution action—and this includes one subjected to a Section 106 administrative order.”); with
Carrier Corp. v. Piper, 460 F. Supp. 2d 827, 840-41 (W. D. Tenn. 2006) (finding a UAO is a “civil
action” under Section 113(f)(1), reasoning that the burden it places on a party is similar to that of
a court proceeding); and PCS Nitrogen, Inc. v. Ross Dev. Corp., 104 F. Supp. 3d 729, 742–43
(D.S.C. 2015) (same); see also supra n. 4.
To resolve the meaning of a statutory term, the Court must “begin with the text of the statute
to determine whether the language at issue has a plain and unambiguous meaning.” Louis Vuitton
Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir. 2012). “A particular statute’s ‘plain
meaning can best be understood by looking to the statutory scheme as a whole and placing the
particular provision within the context of that statute.’” Id. (quoting Saks v. Franklin Covey Co.,
316 F.3d 337, 345 (2d Cir. 2003)). Only if a court finds a statute ambiguous should it then resort
first to canons of statutory construction and, if the meaning remains ambiguous, then to legislative
history to resolve said ambiguity. Id.

Applying these principles, the Court finds that a unilateral administrative order is not a
“civil action” under the meaning of § 113(f)(1). Section 113(f)(1) defines the term in reference to
CERCLA’s abatement action and liability provisions: “Any person may seek contribution from
any other person who is liable or potentially liable under section 9607(a) of this title, during or
following any civil action under section 9606 of this title or under section 9607(a) of this title.”
42 U.S.C. § 9613 (emphasis added). Turning to § 106, as relevant here, it provides that the
President, and by delegation the Administrator of the EPA, see Key Tronic, 511 U.S. at 814,

may require the Attorney General of the United States to secure such relief as may be
necessary to abate such danger or threat, and the district court of the United States in the
district in which the threat occurs shall have jurisdiction to grant such relief as the public
interest and the equities of the case may require. The President may also, after notice to
the affected State, take other action under this section including, but not limited to, issuing
such orders as may be necessary to protect public health and welfare and the environment.
42 U.S.C. § 9606(a). In other words, it distinguishes between two avenues of enforcement: by a
lawsuit brought in a federal district court or by taking “other action,” such as an administrative
order. See Gen. Elec. Co. v. E.P.A., 360 F.3d 188, 190 (D.C. Cir. 2004) (“under § 106(a), EPA may
issue unilateral administrative orders (‘UAOs’) after notice to the affected state, directing the
responsible parties to clean up the hazardous sites” and “[i]f a party fails to comply, EPA may file
a civil action in the district court to enforce the UAO”). Subsection (b) again differentiates between
court actions and administrative ones: 106(b)(1) provides that if a party fails to comply with any
order under 106(a) it may be fined as a result of a civil lawsuit. 42 U.S.C. § 9606. Thus, by using
“civil actions” as opposed to “any action” under § 106, § 113(f)(1) appears to refer to the subset
of actions under § 106 authorizing suits in a federal district court. The Federal Rules of Civil
Procedure are in accord: “There shall be one form of action – the civil action,” FED. R. CIV. P. 2,
which “is commenced by filing a complaint with the court,” FED. R. CIV. P. 3. Pharmacia, 382 F.
Supp. 2d at 1087.

Contrasting § 113(f)(1)’s language with the alternative avenue for relief under §
113(f)(3)(B) further supports the Court’s conclusion. While § 113(f)(1) conditions a cause of
action on a “civil action,” § 113(f)(3)(B) conditions it on an “administrative or judicially approved
settlement.” The language in the latter provision makes clear that the drafters acknowledged a
distinction between an administrative action and a judicial one. In light of this distinction, it seems
unlikely that Congress would have seen the need to distinguish between a “administrative” or

“judicially” approved settlement if it intended that an administrative order falls within the meaning
of “civil action.” See Louisville & Nash. R. R.Co. v. Mottley, 219 U.S. 467, 475 (1911) (“We must
have regard to all the words used by Congress, and as far as possible give effect to them.”).
Additionally, the statute of limitations period contained in § 113 further supports that an
administrative order is not a “civil action.” Section 113(g)(3) “provides two corresponding 3-year
limitations periods for contribution actions, one beginning at the date of judgment, § 113(g)(3)(A),
and one beginning at the date of settlement, § 113(g)(3)(B). “Notably absent from § 113(g)(3) is

any provision for starting the limitations period if a judgment or settlement never occurs, as is the
case with a purely voluntary cleanup.” Cooper Indus., 543 U.S. at 167. Administrative orders do
not result in “judgments,”7 and thus, if such orders did give rise to a contribution action on

7 Black’s Law Dictionary defines a “judgment” as “A court or other tribunal’s final determination of the rights and
obligations of the parties in a case; also, the act or action of making such a determination.” Black’s Law Dictionary
(12th ed. 2024).
§ 113(f)(1), a party would effectively be free to initiate its claim at any time – undermining legal
certainty and fairness by exposing defendants to indefinite liability.

Accordingly, because the unilateral administrative order in this case does not qualify as a
“civil action,” Plaintiffs’ second cause of action for contribution under CERCLA § 113(f)(1) is
hereby dismissed.8
D. Availability of § 107(a) Claim

Defendants maintain that Plaintiff may not pursue claims under § 107(a) because Plaintiffs
did not incur its response costs “voluntarily” but were “forced to act pursuant to the EPA’s
unilateral administrative order.” Defs.’ Mem. at 20.
The Second Circuit has made clear that “In the same manner that section 107(a) is not
limited to solely to ‘innocent’ parties, § 107(a) does not specify that only parties who ‘voluntarily’
remediate a site have a cause of action.” W.R. Grace & Co.-Conn. v. Zotos Intern., Inc., 559 F.3d
85, 92 (2d Cir. 2009) (citing Atl. Research, 551 U.S. at 137). In that case, the fact that the plaintiff
entered into a consent order before incurring response costs was “of no legal significance under
the statute.” Id. at 92. Rather, “The relevant inquiry with respect to section 107(a) is whether the

party undertook the remedial actions without the need for the type of administrative or judicial
action that would give rise to a contribution claim under section 113(f).” Id. at 94. Because the

8 Although not raised by either party, the Court also notes that New York State’s prior civil action also does not give
rise to a § 113(f)(1) claim here. In this action, Plaintiff seeks recovery of response costs related to the EPA’s UAO,
not such costs stemming from its liability settled with NYSDEC. Were the Court to consider that settlement or
litigation as a statutory trigger for costs related to EPA’s order, the statute of limitations would risk barring Plaintiffs
from suit before they were ever apprised of this action: the EPA’s UAO was issued years following Plaintiffs’ resolution
of liability with the State. “Under CERCLA, states have causes of action independent from the federal government.
. . . CERCLA views the states as independent entities that do not require the EPA's express authorization before they
can act,” Niagara Mohawk, 596 F.3d at 126, and the States’ role in effectuating the purposes of CERCLA is
“autonomous.” Id. at 125.
Court concluded that Plaintiffs do not have a cause of action under either provision of § 113(f)
with respect to the costs incurred resulting from EPA’s unilateral administrative order, it follows
that Plaintiffs may seek to recoup those costs under § 107. Plaintiffs chose to comply with the
EPA’s order and therefore “saved the parties and the government litigation costs, and presumably
also limited ongoing contamination by promptly remediating the site.” Id.

Defendants argue that there is Second Circuit authority contradicting the holding in W.R.
Grace. Defs.’ Mem. at 21 (citing RACER, 92 F.4th at 439 (§ 107 authorizes suits by “[a]ny person”
which “includes a PRP that voluntarily cleans the site.” (quoting Niagara Mohawk, 596 F.3d at
121) (emphasis added)). However, the authority cited is not contradictory in that the language
cited to in RACER is clearly not exclusionary – a person who voluntarily cleans the site may bring
suit, but they are not the only party who may do so. This is consistent with prior Second Circuit
authority. Similar to W.R. Grace, the plaintiff in Schaefer v. Town of Victor entered into multiple
consent orders issued under § 107(a). 457 F.3d 188, 191-92 (2d Cir. 2006). The court held that
plaintiff could bring a cause of action under § 107 for response costs incurred prior to the final

consent order, even though such funds were expended under extensive agency oversight. Id.
In short, nothing in the plain language of § 107(a), Supreme Court, or Second Circuit
authority requires a reading that the PRP incurred response costs “voluntarily.” The Court will not,
as Defendants urge, “read[] words or elements into a statute that do not appear on its face.” Bates
v. United States, 522 U.S. 23, 29 (1997). Interpreting CERCLA to bar a plaintiff from recovering
from another responsible party would be inconsistent with the statute’s purpose of ensuring that
each party bears its fair share of cleanup costs and encouraging cooperation with government
agencies. W.R. Grace, 559 F.3d at 95. Accordingly, the Court finds that Plaintiffs may bring a
cause of action to recover response costs under CERCLA § 107(a).
E. Failure to State a Claim under § 107(a)
Lastly, Defendants argue that Plaintiffs have failed to state a claim under § 107(a) and have
made only “threadbare recitals of the elements of a cause of action under CERCLA that are nothing

but conclusory statements and mere speculation.” Defs.’ Mem. at 24.
To state a claim for relief for liability under CERCLA § 107(a), a plaintiff must allege that:
(1) the defendant is an “owner” or is otherwise liable under 42 U.S.C. § 9607(a)(1)-(4); (2) the site
is a “facility” as defined by 42 U.S.C. § 9601(9); (3) there has been a release or threatened release
of hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or
the threat; and (5) the costs and response conform to the National Contingency Plan. See Price
Trucking Corp. v. Norampac Indus., Inc., 748 F.3d 75, 80 (2d Cir. 2014); 42 U.S.C. 9607(a).
Plaintiffs allege that Defendants are current or former owners of the property located at
700 Main Street, Westbury, New York, Compl. ¶¶ 7, 9, and that the property was designated in the

UAO as a site at which PCE was disposed within the meaning of CERCLA Section 107, Id. ¶¶
23-24.9 They allege that they have “complied with the amended UAO and Plaintiffs are incurring
response costs in implementing the RI/RD as defined in the [EPA’s] ROD and UAO, including but
not limited to engineering fees, attorneys’ fees, and other expenses and costs relating to mitigating
environmental conditions[.]” Id. ¶ 28.
Plaintiffs also allege that response costs were incurred prior to the issuance of the UAO
that are associated with remediation of the Eastern Plume and OU-1 Deep Plume and will continue

9 A facility is defined in part as “any site or area where a hazardous substance has been deposited, stored, disposed of,
or placed, or otherwise come to be located[.]” 42 U.S.C. § 9601(9)(B). “Courts have interpreted ‘facility’ broadly.”
Brooklyn Union Gas Co. v. Exxon Mobil Corp., 554 F. Supp. 3d 448, 461 (E.D.N.Y. 2021).
to incur future response costs in implementing the UAO, as well as other costs. Id. ¶¶ 32, 35, 38.
Further, Plaintiffs assert that these costs were consistent with the National Contingency Plan. Id.
¶ 51.
As Plaintiffs argue, CERCLA does not impose a heightened pleading standard of Rule 9(b).
See, e.g., B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir. 1996), overruled on other grounds

by New York v. Nat’l Serv. Indus., Inc., 352 F.3d 682, 685 (2d Cir. 2003). Rule 8 requires only that
a plaintiff’s complaint include a “short and plain statement of the claim showing that the pleader
is entitled to relief.” FED. R. CIV. P. 8(a)(2). To satisfy this standard, the complaint must at a
minimum “‘disclose sufficient information to permit the defendant to have a fair understanding of
what the plaintiff is complaining about and to know whether there is a legal basis for recovery.’”
Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir. 2019) (quoting Kittay v. Kornstein, 230 F.3d 531,
541 (2d Cir. 2000)). Defendants have not raised any specific arguments identifying deficiencies
in the complaint that would lead the Court to conclude that it fails to meet the pleading standard
under Rule 8. For these reasons, the Court finds that Plaintiffs have adequately pleaded each

element of its § 107 claims. See, e.g., Brooklyn Union Gas Co., 554 F. Supp. 3d at 463-64, 467
(collecting cases and noting that “an allegation that a plaintiff has incurred and will continue to
incur expenses and costs,” that those are “consistent with the NCP” sufficiently alleges recoverable
response costs under § 107) (cleaned up).
F. Declaratory Judgment Claims
Defendants argue that Plaintiffs’ third and fourth causes of action for declaratory judgment
also fail because they are contingent upon their CERCLA claims for monetary relief. Defs.’ Mem.
at 6, 23-24. Defendants also argue that Plaintiffs’ fifth cause of action under the DJA, 28 U.S.C.
§ 2201(a), should be dismissed as duplicative. Id. at 6. Plaintiff argues that because it has properly
pled a viable § 107 claim, Defendants’ motion to dismiss the third and fourth causes of action for
declaratory judgment under CERCLA §§ 113(g)(2) and 107(a)(4)(b) must be denied. Pls.’ Mem.
at 18-19. Plaintiff concedes that if its § 113(f)(1) claim is dismissed, its fifth cause of action for
declaratory judgment under the DJA fails. See id. at 19.
“CERCLA section 113(g)(2) requires a district court to ‘enter a declaratory judgment on
liability for response costs or damages that will be binding on any subsequent action or actions to

recover further response costs or damages.’” New York v. Solvent Chemical Co. Inc., 664 F.3d 22,
25 (2d Cir. 2011) (quoting 42 U.S.C. § 9613(g)(2)). Because Plaintiff has sufficiently alleged a
CERCLA § 107 claim, the Court declines to dismiss Plaintiffs’ contribution claims brought under
§§ 113(g)(2) and 107(a)(4)(b). See 101 Frost St., 2019 WL 4415387, at *11 (declining to dismiss
declaratory judgment claim under § 113(g)(2) where Plaintiffs had a valid cause of action for
certain costs under § 107). Having dismissed Plaintiffs’ § 113(f)(1) claim, Plaintiffs’ cause of
action under the DJA is also dismissed. See Brooklyn Union Gas Co., 554 F. Supp. 3d at 468 (“A
plaintiff cannot maintain a claim for a declaratory judgment where the underlying substantive
claim has been dismissed since the Declaratory Judgment Act only creates a procedural mechanism

and not an independent cause of action.”).
CONCLUSION
For the foregoing reasons, Defendants’ motion for judgment on the pleadings is granted in
part and denied in part. The Court grants Defendants’ motion as to Plaintiffs’ second and fifth
causes of action and denies the motion as to all remaining claims. Accordingly, Plaintiffs’ claims
for contribution under CERCLA § 113(f)(1) and for declaratory judgment under the DJA, 28 U.S.C.

§ 2201(a), are dismissed and Plaintiffs’ remaining claims shall proceed to trial.
It is further ordered that the parties shall file a proposed Joint Pre-Trial Order no later than
November 20, 2025.
SO ORDERED.
/s/
ORELIA E. MERCHANT
United States District Judge

September 20, 2025
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11141937. Public record. Not legal advice.