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 September 2020, I wrote a Litigation Blog post about the Ninth Circuit’s decision in Nanouk v. United States, 974 F.3d 941 (9th Cir. 2020), which considered whether the so-called discretionary function exception barred tort claims against the government in connection with its lengthy, haphazard cleanup of a PCB hotspot near a Cold War-era military installation in Alaska. As I explained in that article, the exception bars tort claims that are based on discretionary government conduct—often following a policy-based analysis—but not claims that are based on simple negligence by government officials.  Because cleanup protocols for such bases were generally grounded in economic and national security policy, the Ninth Circuit held the exception barred all claims asserted by the plaintiff, whose adjacent land was impacted by the PCBs, except one claim: that after deciding to undertake the cleanup in 1990, the government simply failed to do it for 13 years. The Court remanded that issue, instructing the government to proffer evidence showing that the delay in effectuating the cleanup was likewise policy based.  On remand, the trial court addressed this issue in denying without prejudice the United States' Motion to Dismiss.  Nanouk v. United States, Case No. 3:15-cv-00221-RRB (Mar. 15, 2023).    Read More »

Share | Email| Comments|  Topics: Alaska, Case Update, Cleanup, Contamination, Federal Tort Claims Act, Negligence, Nuisance, Odors, PCBs, Property Damage, Remediation, Removal, Sovereign Immunity, Toxic Torts, Trespass

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 »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contamination, Contribution, Cost Recovery, Potentially Responsible Parties, Superfund

Stanford University can proceed with its lawsuit against HP Inc. and Agilent Technologies, Inc., the U.S. District Court for the Northern District of California ruled on September 19, 2022, holding that because certain soil contamination was a “continuous” or abatable nuisance or trespass, Stanford’s nuisance and trespass claims were not time barred and could continue.  Accordingly, the court denied HP and Agilent’s motion for summary judgment on Stanford’s nuisance and trespass claims. Bd. of Trs. of the Leland Stanford Junior Univ. v. Agilent Techs., Inc., No. 18-cv-01199 (N.D. Ca. Sept. 19, 2022). Read More »

Share | Email| Comments|  Topics: California, CERCLA, Contamination, Discovery Rule, Nuisance, PCBs, Solvents, Statute of Limitations, Superfund, Trespass

The post was authored by summer associate Nik Hansen.

The State of Delaware brought claims against former PCB manufacturer Monsanto Company for the environmental contamination caused by PCB products in Delaware waterways. On July 11, 2022, in State of Delaware v. Monsanto Co., C.A. No. N21C-09-179, the Delaware Superior Court found that the State failed to state valid claims for public nuisance, trespass, and unjust enrichment against Monsanto. In its three-part holding, the Court held that product-related public nuisance claims are not cognizable in the state of Delaware, that the State does not have standing to bring trespass claims against resources it holds in public trust, and that unjust enrichment cannot be brought as a stand-alone claim in the superior court. Read More »

Share | Email| Comments|  Topics: Contamination, Delaware, Nuisance, PCBs, Standing, Trespass

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

On April 21, 2022, in Tomas Vera et al. v. Middlesex Water Co. (MID-L-6306-21, Superior Court of New Jersey, Middlesex County), a New Jersey Superior Court judge granted plaintiffs’ motion for certification in a case stemming from PFAS contamination of the county’s water supply.  Defendant Middlesex Water Co. (“Middlesex”) sent notices to customers on October 22, 2021 and November 8, 2021 advising that testing showed levels of Perfluorooctanoic Acid (“PFOA”) of 36.1 parts per trillion, well above the 14 parts per trillion maximum contaminant level (“MCL”) standard set by the New Jersey Department of Environmental Protection (“NJDEP”).  The notices further advised of health concerns potentially associated with PFOA, recommended that customers with “specific health concerns, a severely compromised immune system, have an infant, are pregnant or are elderly” seek advice from a health care provider, and recommended installing a home water filter to reduce levels of PFOA in the tap water or use bottled water for drinking, cooking, or preparing beverages for infants. Read More »

Share | Email| Comments|  Topics: Class Actions, Contamination, Drinking Water, Injunction, Medical Monitoring, New Jersey, PFAS, Water

There are surprisingly few cases addressing whether, for an entity to be liable as an arranger under CERCLA, it must have known that the disposed substance was dangerous or hazardous. On March 10, 2022, in City of Las Cruces and Dona Ana County v. The Lofts at Alameda, LLC, the U.S. District Court for the District of New Mexico became the third federal district court to answer this question directly.

Two local government entities sued American Linen for cost recovery and contribution, alleging its decades-long operation of dry cleaning facilities caused them to incur costs to remediate a plume of contaminated groundwater. Specifically, the plaintiffs asserted that American Linen instructed its employees to dispose of PCE-laden wastes off site and that it contracted with a truck hauler to transport these wastes to a dump site three miles away. American Linen moved to dismiss, arguing principally that at the time of disposal, it did not know the wastes were hazardous substances. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contamination, Cost Recovery, Groundwater, New Mexico, Potentially Responsible Parties, Remediation, Superfund

In Borough of Edgewater v. Waterside Construction, LLC, et al., 2022 WL 557903 (D.N.J. Feb. 24, 2004), Plaintiff Borough of Edgewater (“Edgewater”) brought Spill Act claims relating to PCB contaminated material which was used as fill in a public park project.  At issue was whether Arconic, as a prior owner of the property from which the fill was obtained, was “in any way” responsible for contamination resulting from use of the fill at another property.  The Court held that, because Arconic had no control over the property, and hence the fill, at the time of its subsequent use, it was not liable to the Borough under the Spill Act. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, New Jersey, Owner Liability, PCBs, Potentially Responsible Parties, Real Estate, Spill Act