On November 17, 2021, the Court of Appeals for the First Circuit affirmed a decision of the lower court that the Puerto Rico Industrial Development Company (PRIDCO) was prima facie liable under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq., that it could not avail itself of the contiguous property owner defense, and that the selected response action was not arbitrary or capricious.  The decision is particularly noteworthy in that the only identified contamination was in the groundwater under PRIDCO’s property, with no evidence that the source of the contamination was any activity on PRIDCO’s property.  Nevertheless, the Court held that because the movement of groundwater constitute a continuous “release,” CERCLA liability attached. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Cost Recovery, EPA, First Circuit, Groundwater, Innocent Party, National Contingency Plan, Owner Liability, Solvents, Superfund

When a homeowner misses trash day for months, piling up stinking bags of trash in the backyard, neighboring homeowners could presumably bring a private nuisance claim against that homeowner to abate the nuisance.  But what if that neighbor was a landfill and its noxious odors spread for miles: who in the surrounding neighborhood would have standing to abate that apparent nuisance?  The answer depends on the jurisdiction.  In the recent decision Davies v. S.A. Dunn & Co., Nos. 530994/531613 (3d Dep’t Oct. 21, 2021), a split panel in the Appellate Division for the Third Judicial Department in New York dismissed public nuisance and negligence claims brought by neighboring residents against a landfill for failing to control its odor emissions because the plaintiffs failed to allege that they had suffered a “special injury” that was distinct from other residents in the area. Assuming it withstands any appeal, the decision is a significant check on public nuisance claims in New York.   Read More »

Share | Email| Comments|  Topics: Air, Damages, Landfill, Negligence, New York, Nuisance, Odors, Property Value, Residential, Waste

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

On August 3, 2021, in the Methyl Tertiary Butyl Ether (“MTBE”) MDL the Court ruled that while the Commonwealth of Pennsylvania's alter ego allegations were sufficient to pierce the corporate veil as between defendants Lukoil Americas Corporation and its subsidiary Getty Petroleum Marketing Inc. for jurisdictional purposes, they were not sufficient to pierce the veil for liability purposes, nor was there successor liability, resulting in the dismissal of all claims against LAC. Read More »

Share | Email| Comments|  Topics: Alter Ego, Corporate Veil, Insurance Coverage, Multi-District Litigation, Nuisance, Pennsylvania, Spill Act, Storage Tank, Successor Liability, Water

This Blog Post was authored by Omar Khodor, a summer associate.

On June 23, 2021, the Ninth Circuit, in directing the lower court to dismiss a citizen’s suit claim under the Clean Water Act (“CWA”), held that the CWA did not abrogate tribal sovereign immunity. Deschutes River All. v. Portland Gen. Elec. Co., No. 18-35867, 2021 WL 2559477 (9th Cir. June 23, 2021). To abrogate a Tribe’s sovereign immunity, the Ninth Circuit explained that a statute must convey “perfect confidence” that Congress intended to abrogate tribal sovereign immunity. Id. at 14. It further found that the CWA does not unequivocally do so because Section 1365 – a section explicitly dealing with United States and governmental sovereign immunity – does not mention tribal sovereign immunity. Id. at 15-16. Rather, Section 1365 states that “any citizen may commence a civil action on his own behalf . . . against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution).” 33 U.S.C. § 1365. Although Section 1362(5) of the CWA goes on to define “any person” as a municipality (among other things), and Section 1362(4) further defines a “municipality” as including an “Indian Tribe or an authorized Indian Tribal organization,” the court determined that Congress had not clearly intended to abrogate tribal sovereign immunity because Tribes are not included in Section 1365. Deschutes River All., 2021 WL 2559477 at *15-16. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Energy, Federal Procedure, Ninth Circuit, Procedure, Sovereign Immunity, Tribal Lands