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Showing 98 posts in Contamination.

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 »

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 »

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 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 »

This Blog Post was authored by Isaiah B. Kramer, a summer associate.

On June 7, 2021, the Colorado Supreme Court affirmed in part a decision of the Appellate Division and held that the Colorado Department of Public Health and Environment (“the Department”) may bring an enforcement action against a county under the State’s Solid Wastes Disposal Sites and and Facilities Act (“the SWA”). Bd. of Cnty. Comm’rs of La Plata v. Colo. Dep’t of Pub. Health, 2021 CO 43. In doing so, the Court found that the county was neither protected by sovereign immunity nor otherwise exempt from the reach of the SWA. Read More »

Less than a month after hearing oral arguments, the United States Supreme Court issued its unanimous decision in Guam v. United States, Docket No. 20-382 (May 24, 2021), the eagerly anticipated opinion on whether consent decrees and administrative orders that do not expressly resolve liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) nevertheless give rise to a claim for contribution under Section 113(f)(3) of CERCLA. The issue is a crucial one and has been the subject of numerous court opinions because of the short, three-year limitations period for contribution actions. The opinion, which the Court intended to provide clarity in the area, holds that only settlements that release “CERCLA-specific liability” trigger the right to contribution. Read More »

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 (7th Cir. Mar. 31, 2021). Read More »

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 »

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 (9th 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 »

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 »