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 »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Contribution, Cost Recovery, Good Faith Settlement, Potentially Responsible Parties, Superfund

This post was authored by summer associate Reilly Wright

In United States v. ERR, LLC, No. 21-30028 (5^th Cir. May 26, 2022), the Fifth Circuit ruled that the Seventh Amendment guarantees the right to a jury trial for defendants facing subrogation and recoupment claims under the Oil Pollution Act of 1990 (the “OPA”).  In 2015, ERR was found responsible for an oil spill originating from a wastewater treatment center that it owned and operated on the banks of the Mississippi River.  In 2017, the United States sued ERR under the OPA for removal costs it had paid from the Oil Spill Liability Trust Fund (the “Fund”) to Oil Mop LLC, a spill-response service provider.  ERR demanded a jury trial, which the district court denied, finding that the relief provided for in the OPA was in the nature of equitable restitution, so its claims sounded in equity, not in law.  However, the Fifth Circuit overturned that decision, holding that such claims were legal in nature and therefore provide ERR the right to a jury trial. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Cleanup, Cost Recovery, Fifth Circuit, Oil Pollution Act, Response Action Contractors

On May 18, 2022 in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a Missouri federal court dismissed Plaintiffs’ complaint alleging negligence, nuisance and trespass from alleged groundwater contamination, finding the claims were preempted by an existing consent decree. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Injunction, Missouri, Negligence, Nuisance, Preemption, Property Value, Superfund, Trespass, Water

Can plaintiffs in a citizen suit piggyback on existing governmental enforcement action and enforce the same alleged violation under the Clean Water Act (“CWA”)? Yes, as long as the citizen suit does not seek civil penalties, according to the First Circuit in The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, __ F. 4^th __ (1st Cir. 2022).  The First Circuit, sitting en banc, held that under the CWA, administrative enforcement action by the government precludes only a citizen’s “civil penalty action,” which the Court interpreted to mean an action seeking civil penalties.  A citizen suit seeking other forms of relief, i.e. injunctive or declaratory, however, could proceed notwithstanding the government’s action.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Civil Penalties, Clean Water Act, Cleanup, Declaratory Relief, Enforcement Action, First Circuit, Injunction, Stormwater, Water

On Tuesday, February 8, 2022, the Eleventh Circuit affirmed the Southern District of Alabama’s dismissal of admiralty claims against the United States for oil-removal damages holding first that Oil Pollution Act of 1990’s (“OPA”), 33 U.S.C.S. § 2701 et. seq., does not authorize a claim against the federal government, and second, the OPA’s comprehensive remedial scheme displaced the Government’s sovereign immunity waiver in the Suits in Admiralty Act of 1920 (“SAA”). See Savage Servs. Corp. v. United States, Slip Op. No. 21-10745 (11th Cir. Feb. 8, 2022). Read More »

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Rejecting federal officer removal and federal question removal theories, the Fourth Circuit affirmed the District of West Virginia’s remand of a state tort suit against the remediators of an EPA-permitted Resource Conservation and Recovery Act (“RCRA”) site.  W.V. St. Univ. Bd. of Govs. v. Dow Chem. Co. et al., No. 20-1712, __ F.4^th __, 2022 WL 90242 (Jan. 10, 2022). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Federal Jurisdiction, Federal Procedure, Fourth Circuit, Groundwater, Negligence, Nuisance, Procedure, RCRA, Removal, Subject Matter Jurisdiction, Superfund, Trespass, West Virginia

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 »

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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

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 »

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