In State of Rhode Island v. Shell Oil Products Co., L.L.C. et al., No. 19-1818 (1st Cir. 2020), decided on October 29th, 2020, the First Circuit joined seven sister circuits in holding that the scope of appellate review of remand orders under 28 U.S.C. § 1447(d) is limited to the questions of federal-officer jurisdiction and civil rights jurisdiction. And while the holding does not break new ground in light of its consistency, it informs members of industry of the venue in which they will litigate climate change claims based in tort and state law providing environmental rights. Read More »

Share | Email| Comments|  Topics: Climate Change, Federal Procedure, First Circuit, Nuisance, Procedure, Removal, Trespass

On October 22, 2020, the Pennsylvania Commonwealth Court rejected a facial constitutional challenge to two statutory enactments that directed over $110 million generated from oil and gas leases on state lands to pay for the general government operations of the Pennsylvania Department of Conservation and Natural Resources (“DCNR”), finding that the appropriations were not facially unconstitutional under Article I, Section 27 of the Pennsylvania Constitution, also called the Environmental Rights Amendment (“ERA”). Pa. Envtl. Defense Found. v. Commonwealth, No. 358 M.D. 2018 (Pa. Cmwlth.) (“PEDF IV”). Read More »

Share | Email| Comments|  Topics: Act 13, Environmental Rights Amendment, Marcellus Shale, Oil and Gas, Pennsylvania

On August 19, 2020, the United States District Court for the Southern District of Texas issued what it hoped was “the third, and should be the last, opinion in these environmental pollution cases arising from World War II and the Korean War.” Exxon Mobil Corp. v. United States, Nos. H-10-2386 & H-11-1814, slip op. at 1 (S.D. Tex. Aug. 19, 2020). The court’s decision provides a unique window into an allocation for recovery under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), a process more often conducted in private alternative dispute arrangements among potentially liable parties. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Contribution, Cost Recovery, Refinery, Remediation, Superfund, Texas

In a split decision that could have ramifications for future lawsuits involving the present pandemic, a majority panel in the Ninth Circuit held that the United States was not liable under CERCLA as an “operator” at the Lava Cap Mine Superfund Site when it ordered the mine to shut down during World War II. United States v. Sterling Centrecorp Inc., No. 18-15585 (9^th Cir. Oct. 5, 2020). The decision will likely spell some relief for local, state, and federal officials that have issued similar shutdown orders across the United States during the COVID-19 pandemic. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Contamination, Mining, Ninth Circuit, Operator Liability, Superfund

On September 14, 2020, the U.S. Court of Appeals for the Ninth Circuit held that speculative, potential future response costs are not recoverable in a contribution action under CERCLA, even if the party seeking contribution has already made an expenditure for such costs pursuant to a settlement. The response costs at issue in ASARCO LLC v. Atlantic Richfield Co, No. 18-35934, D.C. No. 6:12-cv-00053-DLC (9th Cir. Sept. 14, 2020) were part of a cash-out bankruptcy settlement that resolved plaintiff ASARCO LLC’s liability for several contaminated sites. Only a portion of the settlement funds paid by ASARCO had been spent on remediating the site in question, with the rest held in trust to address future potential response costs. Although the Ninth Circuit affirmed the district court’s allocation of 25 percent of the cleanup responsibility to the defendant, Atlantic Richfield, it vacated and remanded the district court’s decision with respect to the future costs. Read More »

Share | Email| Comments|  Topics: Allocation, Bankruptcy, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Montana, Ninth Circuit, Remediation, Superfund

Last week the Third Circuit held that Combustion Equipment Associates, Inc. n/k/a Carter Day Industries, Inc. (“Carter Day”) was not protected from a contribution claim brought by Compaction Systems Corporation of Connecticut, Inc. and Compaction Systems Corporation (collectively, “Compaction”) for amounts Compaction was obligated to pay to the United States despite Carter Day having resolving its liability to the State of New Jersey for the same site. New Jersey Department of Environmental Protection v. American Thermoplastics Corporation, et al., Nos. 18-2865 & 19-2243 (3d. Cir. Sept. 8, 2020). At issue was whether the settlement agreement between Carter Day and the New Jersey Department of Environmental Protection (“NJDEP”) addressed the same “matter” as the contribution claim brought by Compaction for response costs at the Combe Fill South Landfill Superfund Site (the “Combe Fill Site” or “Site”). Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Contribution, EPA, Landfill, New Jersey, Remediation, Superfund, Third Circuit

The Federal Tort Claims Act permits claims for monetary damages against the United States for injury or loss of property caused by the wrongful acts of federal employees. See 28 U.S.C. § 1346(b)(1). However, this waiver of sovereign immunity is limited by the discretionary function exception, which preserves immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). Recently, the United States Court of Appeals for the Ninth Circuit analyzed the discretionary function exception in the context of environmental contamination, finding that the exception does not apply to what can best be described as ordinary negligence in the performance of a site remediation. Nanouk v. United States, No. 13-35116 (Sept. 4, 2020). Read More »

Share | Email| Comments|  Topics: Alaska, Cleanup, Contamination, Federal Tort Claims Act, Negligence, Ninth Circuit, Nuisance, Odors, PCBs, Property Damage, Remediation, Removal, Sovereign Immunity, Toxic Torts, Trespass

Earlier this week the Eleventh Circuit issued a published decision in Pinares v. United Technology Corporation, No. 18-15104, slip op. (11th Cir. Aug. 31, 2020), affirming the United States District Court for the Southern District of Florida’s grant of summary judgment in favor of Pratt & Whitney, dismissing the plaintiffs’ claims as time-barred. In doing so, the Court held that the personal injury tolling provision in the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) does not apply to public liability actions brought pursuant to the Price-Anderson Act (“PAA”) or to claims styled under state law based on injuries from radiation exposure. Thus, the lawsuit pursued by Joselyn and Steve Santiago alleging that Pratt & Whitney was liable for their deceased daughter Cynthia Santiago’s cancer was time barred. Read More »

Share | Email| Comments|  Topics: Cancer, CERCLA, Contamination, Discovery Rule, Eleventh Circuit, Florida, Negligence, Price-Anderson Act, Statute of Limitations, Superfund, Toxic Torts, Trespass

On August 10, 2020, the Ninth Circuit reversed a lower court’s grant of defendants’ motion for summary judgement, permitting plaintiffs’ case to move forward in a Superfund action for contribution. See Arconic v. APC Investment, No. 19-55181 (9th Cir. Aug. 10, 2020), a case we had reported on here. At issue was whether a settlement between plaintiffs and certain de minimis parties for future potential response costs was an adequate triggering event for the statute of limitations period (against different defendants) in an action for contribution under CERCLA Section 113(f). The Ninth Circuit held that it was not, explaining that in the context of a “judicially approved settlement,” the proper triggering event was a settlement which imposed actual cleanup costs in excess of a party’s estimated liability at the site. Read More »

Share | Email| Comments|  Topics: California, Case Update, CERCLA, Contamination, Contribution, Groundwater, Ninth Circuit, Statute of Limitations, Superfund

The D.C. Circuit recently held that EPA was not required to consider mitigation measures taken at a site when determining whether to add the site to the National Priorities List (“NPL”) under CERCLA. Meritor, Inc. v. EPA, No. 18-1325, 2020 WL 4299124 (D.C. Cir. July 28, 2020).

In 2016, the U.S. Environmental Protection Agency (“EPA”) conducted a study of indoor air quality at the Rockwell International Wheel & Trim facility (the “Site”), located in Mississippi, and discovered elevated concentrations of toluene, trichloroethylene (“TCE”), and cis-1,2-dichloroethene (“DCE”) in the main building at the Site. In 2017, Meritor, Inc. (“Meritor”), which inherited liability for contamination at the Site, conducted a subsurface investigation beneath the main building and uncovered elevated levels of toluene and TCE. In that same year, Meritor installed a sub-slab depressurization system designed to mitigate the impacts of vapor intrusion in the main building. In 2018, notwithstanding Meritor’s mitigation efforts, EPA added the Site to the NPL based on vapor intrusion impacts. Read More »

Share | Email| Comments|  Topics: CERCLA, D.C. Circuit, National Priorities List, Solvents, Superfund, Vapor Intrusion