Cost-recovery and contribution lawsuits under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) can sometimes drag on for several years, or longer, because of the multitude of potentially responsible parties (PRPs), the often-separate liability and allocation phases, and appeals of rulings decided at each phase, among other complications.  The recent decision in Georgia-Pacific Consumer Products LP et al. v. NCR Corp., 1:11-cv-483 (W.D. Mich.), highlights the winding and prolonged paths that some of these cases can take.  Read More »

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In Pakootas v. Teck Cominco Metals, Ltd., No. 2:04-CV-00256-SAB, 2024 WL 627260 (E.D. Wash. Feb. 14, 2024), the United States District Court for the Eastern District of Washington held that CERCLA does not mandate a procedure for conducting natural resource damage assessments (NRDAs), nor is certainty of costs required for NRDAs to be considered valid under the CERCLA statute. Read More »

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On December 6, 2023, in Short Creek Development v. MFA Incorporated, No 22-05021, 2023 WL 8452430 (W.D. Mo. Dec. 6, 2023), a Federal District Court in Missouri held that Defendant Missouri Farmers Association, Inc. ("MFA") failed to demonstrate that a divisibility of harm exception to the rule of joint and several liability should be applied in apportioning responsibility to pay for the cleanup costs at a fertilizer plant.  The case underscores the challenges associated with establishing divisibility of harm in a CERCLA action. Read More »

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In City of St. Charles v. Union Electric Company, the City of St. Charles (the “City”) brought common law claims sounding in negligence against Defendant Union Electric Company dba Ameren Missouri (“Ameren”), alleging that Ameren contaminated the City’s water supply, causing the City to incur millions in cleanup costs. No. 4:23-cv-00846-MTS (E.D. Mo. 2023). Ameren removed the case to federal court because it had been subject to an administrative settlement with EPA to perform the cleanup pursuant to CERCLA, but on November 2, 2023, the U.S. District Court for the Eastern District of Missouri remanded the case back to state court for want of subject matter jurisdiction. Read More »

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On June 23, 2023, in MRP Properties Company LLC v. United States, No. 22-1789, 2023 WL 4141227 (6^th Cir. June 15, 2023), the Sixth Circuit decided that despite having directed production at refineries during World War II, the United States government did not qualify as an “operator” of those facilities under CERCLA, providing additional guidance for courts evaluating what kinds of activities subject a party to operator liability.  Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Michigan, Operator Liability, Potentially Responsible Parties, Refinery, Sixth Circuit, Superfund

On April 26, 2023, the United States Court of Federal Claims ordered the federal government to reimburse Shell U.S.A. and several other oil companies for all cleanup costs, including interest, associated with the cleanup of aviation gas (“avgas”) at a site polluted during World War II efforts. Shell U.S.A., Inc. et al. v. United States, 2023 WL 3090659 at *10 (Fed. Cl. 2023). This was the third such case in which the oil companies were seeking contractual indemnification for costs pursuant to the Contract Settlement Act and the only issue of significance addressed by the Court was whether the Plaintiffs were entitled to recover statutory interest that they previously paid under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). Ultimately, the Court held that the plain reading of CERCLA includes interest as a “charge,” and the government was not immune from paying those costs.  Id. at *8. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Contamination, Court of Federal Claims, Damages, Indemnification, Sovereign Immunity, Superfund

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601, et seq., is best known for setting forth a comprehensive mechanism to cleanup hazardous waste sites under a restoration-based approach and for imposing liability on potentially responsible parties. What is less well known, and what is at issue in the latest decision to come out of litigation surrounding the 2015 Gold King Mine release, is CERCLA’s provisions that allow certain governmental entities who act as environmental trustees to recover money damages known as Natural Resource Damages (“NRDs”) from responsible parties for injuries to natural resources caused, directly or indirectly, from the release of hazardous substances, above and beyond the costs to clean up the contamination.  In In re Gold King Mine Release in San Juan Cnty., Colorado, on Aug. 5, 2015, No. 16-CV-931-WJ-LF, 2023 WL 2914718 (D. N.M. Apr. 12, 2023) (“In Re Gold Mine”), the Court held that CERCLA limited the Navajo Nation’s use of NRDs but also that CERCLA did not preempt state tort claims seeking restorative damages.  Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Damages, Drinking Water, Gold King Mine, Mining, Natural Resource Damages, New Mexico, Property Damage, Public Lands, Superfund

In an opinion and order released on November 21, 2022, the United States District Court for the District of New Mexico overseeing litigation arising from the Gold King Mine spill granted a defendant-contractor’s partial summary judgement motion seeking dismissal of claims that it was liable under CERCLA as a transporter, operator, or arranger. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2022 WL 17093503, at *1 (D. N.M. Nov. 21, 2022).  The court held that one of the contractor defendants, Weston Solutions, Inc. (“Weston”), was not subject to CERCLA liability because it only assisted with operating the water management system rather than controlling any operations related to the release of contaminant from the King Gold Mine (“Mine”). Id. This decision follows the court’s earlier denial of a Motion to Dismiss in which the court held that the plaintiffs adequately pled operator, arranger, and transporter liability. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 1282997, at *2-4 (D. N.M. Mar. 20, 2019) (slip opn.). Our blog post discussing the court’s first holding on this issue can be found here. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Clean Water Act, Colorado, Consultant Liability, Gold King Mine, New Mexico, Public Lands, Response Action Contractors, Superfund, Tribal Lands, Utah, Water

In Emhart Industries, Inc. v. New England Container Company, Inc., et al., No. 06-218 WES, 2022 WL 15437874 (D.R.I. Oct. 27, 2022), a federal court addressed the parameters for arranger liability under CERCLA where Defendants sent drums with residual hazardous substances for reconditioning.  The Court denied summary judgment for Defendants, finding liability depends on Defendant’s intent to dispose, which is a fact intensive analysis dependent “foremost on intentional steps Defendants took toward the goal of disposal, but also asks whether the product was useful, if Defendants knew of the hazardousness, and the state of the hazardous substances at the time of the transaction.” Read More »

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In Citizens Development Corporation, Inc. v. County of San Diego, et al., No. 12-CV-334-GPC-KSC, 2022 WL 4374957 (S.D. Cal. Sept. 21, 2022), the Honorable Gonzalo P. Curiel of the United States District Court for the Southern District of California granted three Motions for Good Faith Settlement Determination in an action under Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) related to alleged contamination of surface water and groundwater in and around Lake San Marcos and San Marcos Creek located in San Marcos, California.  One day later, in Maxim I Properties v. A.M. Bud Krohn, et al., No. 12-cv-00449-DMR, 2022 WL 4390433 (N.D. Cal. Sept. 22, 2022), the Honorable Donna M. Ryu of the United States District Court for the Northern District of California issued an order denying a Motion for Good Faith Settlement filed by Maxim I Properties (“Maxim”) and defendant Moyer Products (“Moyer”) in a matter concerning contamination at a property in San Jose, California.  As such settlements can provide contribution protection to parties potentially liable for clean up, these two cases provide good insight into the factors courts will consider in determining whether to approve them.      Read More »

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