On October 12, 2021, the United States District Court for the District of Maryland granted summary judgment to Defendant Schumacher & Seiler, Inc. (“S&S”) and dismissed Plaintiff 68^th Street Site Work Group’s claim for contribution under CERCLA. See 68^th Street Site Workers Group v. AIRGAS Inc., Slip Op. (October 12, 2021). The District Court, applying the “underlying acts” or “conduct” approach, held that the Defendant’s CERCLA liability arose prior to, and was therefore discharged by, its Chapter 11 bankruptcy. Read More »

Share | Email| Comments|  Topics: Bankruptcy, CERCLA, Cleanup, Contamination, Contribution, Fourth Circuit, Landfill, Maryland, Superfund

The Sixth Circuit’s recent decision in American Premier Underwriters v. General Electric Company addressed the sometimes murky question under CERCLA of whether the manufacturer of a product is liable as an “arranger” or “operator” when it sells a product that releases hazardous substances into the environment.  __ F.4th __, No. 20-4010, 2021 WL 4272652 (6th Cir. 2021).  In this case, GE had designed, manufactured, and sold transformers and railcars that contained a coolant with PCBs to APU’s predecessor Penn Central Railroad.  The transformers and railcars were specifically designed to “burp” coolant under certain conditions, which had the effect of releasing PCBs into the environment at various railyards.  The court held that, under the facts of the case, GE was neither an “arranger” or “operator.”    Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Decisions of Note, Operator Liability, PCBs, Potentially Responsible Parties, Railroad, Sixth Circuit

On September 3, 2021, the United States Court of Appeals, Seventh Circuit, vacated the lower court’s determination that liability for remediating the environmental harm associated with a groundwater plume was divisible under Section 107 of CERCLA. In Von Duprin LLC v. Major Holdings, LLC, the environmental harm stemmed from a groundwater plume created from decades of known pollution involving four parcels and primarily four parties. No. 20-1711 (7th Cir. Sept. 3, 2021). As we reported here, the trial court’s apportionment of liability appeared to intermingle factors relevant to both an allocation and apportionment of liability. The appellate court found the same, and vacated the trial court’s apportionment of liability due in part to the apparent application of factors relevant to an allocation of joint liability. At a threshold level, the appellate court also vacated the trial court’s determination at summary judgment that a reasonable basis existed to apportion liability based on causal factors, rather than allocate joint liability based on equitable factors. The appellate court affirmed, however, the trial court’s holdings related to the bona fide prospective purchaser (BFPP) defense, compliance with the National Contingency Plan (NCP), and the admission of expert testimony. Read More »

Share | Email| Comments|  Topics: Allocation, Apportionment, Bona Fide Prospective Purchaser, Case Update, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Damages, Declaratory Relief, Divisibility, Groundwater, Indiana, National Contingency Plan, Remediation, Seventh Circuit, Superfund

On August 19, 2021, the U.S. Court of Federal Claims issued yet another decision rejecting the government’s effort to avoid responsibility for cleanup costs stemming from the plaintiff oil companies’ World War II-era, government-ordered production of aviation fuel. Chevron U.S.A., Inc. v. United States, No. 20-1784. This time, the government argued that the Court lacked jurisdiction over the dispute, and that plaintiff Texaco’s predecessor and the government entered into a mutual release foreclosing the instant liability. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Court of Federal Claims, Oil and Gas, Remediation

On Wednesday, August 18, 2021, the U.S. Court of Appeals for the Second Circuit vacated a district court order dismissing claims for violations of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. See Revitalizing Auto Cmtys. Envtl. Response Tr. v. Nat'l Grid USA, No. 20-1931-cv (2d Cir. Aug. 18, 2021). The Court held that the claims, which were brought under sections 107 and 113 of CERCLA, were prudentially ripe because they were based on costs plaintiffs had already incurred for which they might not receive repayment through EPA investigation. Id. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, New York, Ripeness, Second Circuit, Statute of Limitations, Superfund

On August 4, 2021, the U.S. Court of Appeals for the Federal Circuit rebuked the government’s “overly technical” attempt under res judicata to avoid responsibility for cleanup costs stemming from the large-scale production of aviation fuel as part of the World War II effort. Shell Oil Co. v. United States (No. 20-2221). “In doing so,” the Court explained, it “hope[d] to put an end to the government’s continued resistance to making payments . . . it is obligated to make.” Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Federal Circuit, Indemnification, Oil and Gas, Remediation

This Blog Post was authored by Brielle Brown, a summer associate.  Originally published on July 7, 2021, it has been updated to reflect that after a rehearing, the decision was affirmed on July 20, 2021.

A three-judge panel of the Third Circuit held on June 21, 2021, that air emission exceedances governed by a state air permit and duly reported to state or local authorities pursuant to the permit need not be reported again to the United States Environmental Protection Agency (“EPA”) pursuant to the Section 103 reporting requirements of the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Clean Air Council v. U.S. Steel Corp., 2 F.4^th 112 (3d Cir. 2021); 42 U.S.C. § 9603. The decision was reheard and affirmed on July 20, 2021. Clean Air Council v. U.S. Steel Corp., No. 20-2215, -- F.4^th --, 2021 WL 3045927 (3d Cir., July 20, 2021). The court’s reasoning came down to an interpretation of CERCLA that the phrase “subject to” was intended to mean “governed or affected by” rather than “obedient to.” Id. at *3–4. Thus, air emissions that violate relevant Clean Air Act permits are nevertheless “subject to” that permit and therefore exempt from CERCLA’s reporting requirement. Id. Read More »

Share | Email| Comments|  Topics: Air, CERCLA, Chevron Deference, Clean Air Act, Emissions, Pennsylvania, Permits, Superfund, Third Circuit

Less than a month after hearing oral arguments, the United States Supreme Court issued its unanimous decision in Guam v. United States, Docket No. 20-382 (May 24, 2021), the eagerly anticipated opinion on whether consent decrees and administrative orders that do not expressly resolve liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) nevertheless give rise to a claim for contribution under Section 113(f)(3) of CERCLA. The issue is a crucial one and has been the subject of numerous court opinions because of the short, three-year limitations period for contribution actions. The opinion, which the Court intended to provide clarity in the area, holds that only settlements that release “CERCLA-specific liability” trigger the right to contribution. Read More »

Share | Email| Comments|  Topics: Case Update, CERCLA, Clean Water Act, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Decisions of Note, Landfill, Statute of Limitations, Superfund, Supreme Court, United States Supreme Court, Waste

On March 31, 2021, the Court of Appeals for the Seventh Circuit upheld a district court decision interpreting the term “claim” in an indemnification agreement to require some threat of suit or assertion of liability under Minnesota law. Finding that mere notice of potential liability failed to meet that standard, the Court held that under the terms of the agreement, the buyer, Wisconsin Central, Ltd. (“Wisconsin Central”), must indemnify a seller, Soo Line Railroad Company (“Soo Line”), for liability arising under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Wisconsin Central LTD v. Soo Line Railroad Co., No. 19-3129 (7^th Cir. Mar. 31, 2021). Read More »

Share | Email| Comments|  Topics: Breach of Contract, CERCLA, Cleanup, Contamination, Indemnification, Railroad, Seventh Circuit, Superfund

On March 1, 2021, the U.S. District Court for the Southern District of Ohio issued a ruling denying in part the summary judgment motion of Defendants Ingersoll-Rand and Trane U.S., against whom Plaintiff FIP Realty Co. brought various claims related to the historic release of VOCs on a site now owned by Plaintiff. See Fip Realty Co. v. Ingersoll-Rand Plc, No. 2:19-cv-03291. After acquiring the site out of receivership in 2010, Plaintiff retained several environmental consulting firms and undertook voluntary remediation efforts pursuant to the Ohio Voluntary Action Program (VAP). Six years later Plaintiff submitted a No Further Action (NFA) letter to the Ohio EPA, which in turn issued a Final Order and Covenant releasing Plaintiff from liability at the site as a result of its successful remediation. In 2019 Plaintiff filed the instant lawsuit seeking to recover remediation costs under CERCLA Sections 107(a) and 113(f)(3)(B), and to obtain a declaratory judgment under Section 113(g)(2) that Defendants are liable for all future costs. Defendants moved for summary judgment on various issues, two of which are the subject of disagreement among the federal appellate courts. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contribution, Cost Recovery, Groundwater, Ohio, Remediation, Sixth Circuit, Solvents, Statute of Limitations, Superfund