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Recently, there has been an explosion of litigation involving per- and polyfluoroalkyl substances (“PFAS”) contamination.  In SUEZ Water New York Inc. v. E.I. du Pont de Nemours and Company, et al., No. 20-CV-10731 (LJL), 2022 WL 36489, at *1 (S.D.N.Y. Jan. 4, 2022), a federal district court dismissed PFAS related contamination claims against four Delaware corporate defendants:  E.I. du Pont de Nemours and Company, Inc. (“Old DuPont”), The Chemours Company (“Chemours”), DuPont de Nemours, Inc (“New DuPont”), and Corteva, Inc. (“Corteva”) (collectively “Defendants”).  The court dismissed the Complaint against New DuPont and Corteva due to lack of personal jurisdiction over each defendant.  Although the court found that personal jurisdiction existed over Old DuPont and Chemours, it ultimately still dismissed the Complaint against these defendants due to Plaintiff’s failure to state a claim against each of them. Read More »

What happens when a property owner agrees with a regulator and a prior owner/operator to accept a commercial-level clean-up with institutional controls, but before the remediation is complete and the deed restriction recorded, a new owner takes title and insists on a clean-up to residential standards? Under New Jersey’s Industrial Site Remediation Act (ISRA), who wins? The remediating party, ruled the New Jersey Superior Court, Appellate Division, on December 7, 2021, in an unpublished decision captioned Cozzoli Machine Company v. Crown Real Estate Holdings, Inc., No. A-1733-19. Read More »

On December 2, 2021, addressing issues related to the definition of “disposal” and compliance with the National Contingency Plan (“NCP”) in a claim brought under Section 107 of CERCLA, the United States District Court for the Northern District of California denied both Plaintiff Stanford University’s (“Stanford”) motion for summary judgment and Defendant Agilent Technologies, Inc.’s (“Agilent”) cross motion for summary judgment. See Bd. of Trs. of the Leland Stanford Junior Univ. v. Agilent Techs., Inc., Slip Op. (N.D. Cal. Dec. 2, 2021). The Court denied Stanford’s motion because there was a genuine dispute about whether HP spread PCB contaminated soil over uncontaminated areas of Stanford’s property and Stanford failed to show that it incurred costs consistent with the NCP. Id.  The court denied HP’s cross motion because, although incurred in connection with redevelopment of the property, Stanford’s clean-up costs were “necessary” within the meaning of 42 U.S.C. § 9607(a)(4)(B) and, separately, because a genuine dispute existed as to whether Stanford consented to the disposal of hazardous material on its property. Id. Read More »

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 »

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 »

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 68th Street Site Work Group’s claim for contribution under CERCLA. See 68th 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 »

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 »

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 »

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 »

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 »