If the State brings a remedial action -- that is, measures to permanently remediate hazardous wastes -- under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), the statute of limitations begins to run by the commencement of cleanup construction. If a State brings a removal action -- that is, measures taken to address immediate threats to public health -- the statute of limitations begins to run at the completion of the removal action.
In State of New York v. Next Millenium Realty, LLC, a case involving pollution emanating from the New Cassel Industrial Area in the Town of Hempstead, the District Court had held that the action was a remedial action, and granted summary judgment to the defendants, claiming that the limitations period had run. The Second Circuit disagreed, holding that it was a removal action and that because the removal action was not complete, the statute had not even begun to run. The Court found that the actions taken by the state were taken to address an immediate threat to public health and did not permanently remediate the environmental problem at issue. Hence, the case was not time barred.
The decision in this case can be found here.
This is Sanford Hausler's blog about the United States Court of Appeals for the Second Circuit and its opinions. Nothing in this blog constitutes legal advice. But feel free to contact me at shausler at justice.com if you need help with an appeal either in the Second Circuit or in the New York appellate courts.
Wednesday, October 16, 2013
Wednesday, October 09, 2013
Sanctions
An attorney who informed the Court that her client had asserted a gender discrimination case when he had not, and who was sanctioned sua sponte by the District Court got a break from the Second Circuit. When a Court sanctions Rule 11 sanctions sua sponte, the standard is different. When a party moves for Rule 11 sanctions, the standard as to whether sanctions should be imposed is the subjective unreasonableness of the attorney's conduct. However, because a sua sponte decision to sanction an attorney under Rule 11 does not provide the 21-day safe harbor protection, which allows the attorney to correct his or her conduct, the standard is different. The Second Circuit has held that the standard is subjective bad faith. The Court found that the record could not support a finding of bad faith and reversed and vacated the District Court's decision imposing sanctions.
The decision in Muhammad v. Walmart Stores East, L.P. can be found here.
The decision in Muhammad v. Walmart Stores East, L.P. can be found here.
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