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