On March 31, 2021, the Court of Appeals for the Seventh Circuit upheld a district court decision interpreting the term “claim” in an indemnification agreement to require some threat of suit or assertion of liability under Minnesota law. Finding that mere notice of potential liability failed to meet that standard, the Court held that under the terms of the agreement, the buyer, Wisconsin Central, Ltd. (“Wisconsin Central”), must indemnify a seller, Soo Line Railroad Company (“Soo Line”), for liability arising under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Wisconsin Central LTD v. Soo Line Railroad Co., No. 19-3129 (7^th Cir. Mar. 31, 2021). Read More »

Share | Email| Comments|  Topics: Breach of Contract, CERCLA, Cleanup, Contamination, Indemnification, Railroad, Seventh Circuit, Superfund

On March 1, 2021, the U.S. District Court for the Southern District of Ohio issued a ruling denying in part the summary judgment motion of Defendants Ingersoll-Rand and Trane U.S., against whom Plaintiff FIP Realty Co. brought various claims related to the historic release of VOCs on a site now owned by Plaintiff. See Fip Realty Co. v. Ingersoll-Rand Plc, No. 2:19-cv-03291. After acquiring the site out of receivership in 2010, Plaintiff retained several environmental consulting firms and undertook voluntary remediation efforts pursuant to the Ohio Voluntary Action Program (VAP). Six years later Plaintiff submitted a No Further Action (NFA) letter to the Ohio EPA, which in turn issued a Final Order and Covenant releasing Plaintiff from liability at the site as a result of its successful remediation. In 2019 Plaintiff filed the instant lawsuit seeking to recover remediation costs under CERCLA Sections 107(a) and 113(f)(3)(B), and to obtain a declaratory judgment under Section 113(g)(2) that Defendants are liable for all future costs. Defendants moved for summary judgment on various issues, two of which are the subject of disagreement among the federal appellate courts. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contribution, Cost Recovery, Groundwater, Ohio, Remediation, Sixth Circuit, Solvents, Statute of Limitations, Superfund

The First Circuit recently affirmed the District of Rhode Island’s approval of a superfund consent decree entered into between the United States Environmental Protection Agency (“EPA”), the State of Rhode Island and several Potentially Responsible Parties despite opposition by third party PRPs that the settlement was arbitrary and capricious and contrary to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Emhart Indus., Inc. v. CNA Holdings LLC, No. 19-1563, slip op. (1st Cir. 2021 Feb. 17, 2021). What makes this case unique, and bolstered the arguments of the objectors, is that the settlement incorporated work pursuant to a ROD that the District Court had already determined has not been selected in accordance with law. Nevertheless, both the District Court and the First Circuit held that the finding did not preclude the settlement, leaving the objectors exposed to contribution claims for a remedy potentially inconsistent with the National Contingency Plan (“NCP”). In affirming the lower court, the First Circuit highlighted the “integral part” that early settlement plays in CERCLA’s statutory scheme, thus giving deference to the settling parties. Read More »

Share | Email| Comments|  Topics: Allocation, Apportionment, CERCLA, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Divisibility, First Circuit, Groundwater, National Contingency Plan, National Priorities List, Remediation, Sediment Sites, Superfund

On December 10, 2020, Christmas came early for the federal government. In United States v. Shell Oil Company (CV 91-00589-CJC), the Central District of California awarded it nearly $50 million in costs to remediate waste generated by oil companies that produced World War II aviation fuel at the McColl Superfund Site in Fullerton, California. Though their liability had already been established in a 1993 Second Circuit decision, the companies sought to raise triable issues of fact on damages, and they also contended that the government’s statutory basis under CERCLA was improper. But the Court rejected these arguments and granted the government’s motion for summary judgment. Read More »

Share | Email| Comments|  Topics: Allocation, California, CERCLA, Cleanup, Cost Recovery, EPA, Oil and Gas, Superfund

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

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

On May 4, 2020, the Third Circuit issued a precedential opinion affirming the United States District Court for the District of New Jersey’s decision that the United States Government (the “Government”) is not liable as an operator under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) for its involvement at a chromite ore processing plant in New Jersey during World Wars I and II. PPG Indus. Inc. v. United States, No. 19-1165, slip op. (3d Cir. May 4, 2020). The decision clarifies the applicable standard for parties seeking to hold the Government liable as an operator for cleanup costs at contaminated former defense sites. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Operator Liability, Potentially Responsible Parties, Remediation, Removal, Superfund, Third Circuit

In a highly anticipated decision, on April 20, 2020, the U.S. Supreme Court ruled that state courts may award restoration damages to landowners who seek, under state law, a more expensive cleanup than that selected by EPA, but as potentially responsible parties under CERCLA they must first receive EPA’s approval of their alternative cleanup plan before they would be entitled to those damages. Atlantic Richfield Co. v. Christian, et al., No. 17-1498 (U.S. Apr. 20, 2020). Beyond its fact-specific holding, the opinion’s broader implications may have a significant impact on CERCLA cleanups and litigation going forward.   Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Damages, Innocent Party, Montana, Nuisance, Property Damage, Remediation, Removal, Residential, Statute of Limitations, Strict Liability, Superfund, Supreme Court, Trespass, United States Supreme Court

In Frazer/Exton Development, L.P. v. United States, the United States Court of Appeals for the Federal Circuit affirmed the dismissal of a takings claim against the federal government relating to environmental contamination because the appellants, current and former landowners of the site at issue, filed their lawsuit more than 6 years after environmental remediation was complete. Frazer/Exton Development, L.P. v. United States, No. 2019-2143 (Fed. Cir. Apr. 7, 2020). Read More »

Share | Email| Comments|  Topics: Brownfields, CERCLA, Cleanup, Consent Decree, Contamination, Damages, Environmental Covenants, Federal Circuit, Pennsylvania, Real Estate, Remediation, Statute of Limitations, Superfund, Takings