Court Holds Unilateral Administrative Orders Are Not 'Civil Actions' Under CERCLA

• Published date: 29 September 2025
• Subject Matter: Environment, Environmental Law
• Law Firm: Lowenstein Sandler
• Author: Mr Kegan A. Brown and Taylor R. West

On Sept. 20, the U.S. District Court for the Eastern District of New York held that unilateral administrative orders (UAOs) do not constitute "civil actions" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),¹ and therefore costs incurred to comply with a UAO are only recoverable through a CERCLA cost recovery claim.²

Background

In 2006, the New York State Department of Environmental Conservation (NYSDEC) brought a lawsuit against a series of parties under CERCLA to recover past and future response costs it had incurred and would incur investigating and remediating the New Cassel/Hicksville Groundwater Contamination Superfund Site (Site) in Hempstead and Oyster Bay, New York.³ In 2016, the court found Next Millennium Realty LLC and 101 Frost Street Associates, LP (collectively, Plaintiffs) liable under CERCLA.⁴ Plaintiffs then entered into a consent decree with NYSDEC as a result.⁵ Utility Manufacturing Co. Inc. and Nest Equities Inc. (collectively, Defendants) separately resolved their liability to New York for the state's response costs in a 2015 settlement agreement.

In 2018, the U.S. Environmental Protection Agency issued a UAO to Plaintiffs and Defendants, which was amended in 2019, ultimately requiring the parties to implement another remedial investigation and a remedial design for a portion of the Site.⁶ Plaintiffs alleged they have incurred response costs at the Site to comply with the UAO but Defendants have not, and sought to recover those costs through both a CERCLA Section 107(a) cost recovery claim and a CERCLA Section 113(f)(1) contribution claim.⁷ Defendants filed a motion for judgment on the pleadings.⁸

Analysis

As an initial matter, the court acknowledged that CERCLA cost recovery and contribution claims provide "complementary yet distinct" relief.⁹ Reviewing decisions from other federal courts, the court held that if a party has a CERCLA contribution claim, that party cannot also assert a CERCLA cost recovery claim for the same costs.¹⁰

The court then evaluated whether receipt of a UAO constitutes a civil action under CERCLA, such that it triggers the recipient's right to assert a CERCLA contribution claim (and bars a cost recovery claim).¹¹ Applying principles of statutory interpretation, the court concluded that a UAO is not a civil action under the meaning of Section 113(f)(1).¹²

In reaching that conclusion, the court relied on the plain language of Section 106, which authorizes the issuance...