On August 19, 2020, the United States District Court for the Southern District of Texas issued what it hoped was “the third, and should be the last, opinion in these environmental pollution cases arising from World War II and the Korean War.” Exxon Mobil Corp. v. United States, Nos. H-10-2386 & H-11-1814, slip op. at 1 (S.D. Tex. Aug. 19, 2020). The court’s decision provides a unique window into an allocation for recovery under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), a process more often conducted in private alternative dispute arrangements among potentially liable parties. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Contribution, Cost Recovery, Refinery, Remediation, Superfund, Texas

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

Last week the Third Circuit held that Combustion Equipment Associates, Inc. n/k/a Carter Day Industries, Inc. (“Carter Day”) was not protected from a contribution claim brought by Compaction Systems Corporation of Connecticut, Inc. and Compaction Systems Corporation (collectively, “Compaction”) for amounts Compaction was obligated to pay to the United States despite Carter Day having resolving its liability to the State of New Jersey for the same site. New Jersey Department of Environmental Protection v. American Thermoplastics Corporation, et al., Nos. 18-2865 & 19-2243 (3d. Cir. Sept. 8, 2020). At issue was whether the settlement agreement between Carter Day and the New Jersey Department of Environmental Protection (“NJDEP”) addressed the same “matter” as the contribution claim brought by Compaction for response costs at the Combe Fill South Landfill Superfund Site (the “Combe Fill Site” or “Site”). Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Contribution, EPA, Landfill, New Jersey, Remediation, Superfund, Third Circuit

On August 10, 2020, the Ninth Circuit reversed a lower court’s grant of defendants’ motion for summary judgement, permitting plaintiffs’ case to move forward in a Superfund action for contribution. See Arconic v. APC Investment, No. 19-55181 (9th Cir. Aug. 10, 2020), a case we had reported on here. At issue was whether a settlement between plaintiffs and certain de minimis parties for future potential response costs was an adequate triggering event for the statute of limitations period (against different defendants) in an action for contribution under CERCLA Section 113(f). The Ninth Circuit held that it was not, explaining that in the context of a “judicially approved settlement,” the proper triggering event was a settlement which imposed actual cleanup costs in excess of a party’s estimated liability at the site. Read More »

Share | Email| Comments|  Topics: California, Case Update, CERCLA, Contamination, Contribution, Groundwater, Ninth Circuit, Statute of Limitations, Superfund

In a Letter Order issued on July 10, 2020, the United States District Court for the District of New Jersey held that broad language by which an entity assumed the liabilities of a dissolved entity was sufficient to confer both personal jurisdiction and liability on the entity which assumed the obligations. Occidental Chemical Corporation v. 21^st Century Fox America, et. al., Civ. Action No. 18-11273 (D.N.J. July 10, 2020). In doing so, the Court brushed aside arguments that the jurisdiction was lacking because the dissolved entity had ceased operations in New Jersey long before the assumption of liability and that the lack of specificity in the assumption precluded a finding that CERCLA liability was included. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, New Jersey, Personal Jurisdiction, Sediment Sites, Successor Liability, Superfund

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

It has been more than a decade since the United States Supreme Court decided Burlington Northern & S.F. R. Co. v. United States, 129 S. Ct. 1870 (2009), holding that liability under Section 107(a) of CERCLA is not necessarily joint and several, but in appropriate circumstances can be divisible. And yet, courts still struggle to determine when liability is divisible and thus subject to apportionment rather than equitable allocation, with the latter, joint and several liability, still remaining the go to default. The March 30, 2020 decision from the U.S. District Court for the Southern District of Indiana, in the case of Von Duprin, LLC v. Moran Electric Service, Inc., No. 1:16-cv-01942-TWP—DML (S.D. Ind. Mar. 30, 2020), is no exception. The Court found that liability for a comingled plume of volatile organic compounds (“VOCs”) was divisible, but then applied equitable factors to allocate liability. And, in getting to its final decision, the Court also discussed what costs can be recovered under 107(a), the standard for determining compliance with the National Contingency Plan (“NCP”), and what steps a lessee needs to take to avail itself of the bona fide prospective purchaser (“BFPP”) defense. This is going to be a long one, so pull up a chair. Read More »

Share | Email| Comments|  Topics: Allocation, Apportionment, Bona Fide Prospective Purchaser, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Damages, Declaratory Relief, Divisibility, Groundwater, Indiana, National Contingency Plan, Remediation, Superfund

Last month, the D.C. Circuit, reversing a lower court decision, held that Guam was time-barred from pursuing its claims under CERCLA against the US Navy for the cleanup of the Ordot Dump on the island. Government of Guam v. United States of America, No. 1:17-cv-02487 (D.C. Cir. 2020). Of particular interest was the D.C. Circuit's determination that a 2004 Consent Decree entered into between EPA and Guam to resolve claims under a statutory scheme other than CERCLA, the Clean Water Act, nevertheless sufficiently “resolved” Guam’s liability for at least some remediation costs, giving rise to a contribution claim under Section 113 of CERCLA, bringing the D.C. Circuit in line with a majority of other federal appellate courts that have examined the issue. Read More »

Share | Email| Comments|  Topics: CERCLA, Clean Water Act, Cleanup, Contamination, Contribution, Cost Recovery, D.C. Circuit, Landfill, Remediation, Removal, Statute of Limitations, Superfund, Waste

In a report and recommendation issued last week, a magistrate judge with the United States District Court for the District of Idaho found that disputes of fact preclude summary judgment on the majority of claims brought by a landfill against the United States Air Force and two other defendants. Idaho Waste Systems, Inc. v. U.S. Air Force, No. 1:18-cv-00229 (D.C. Idaho Jan. 27, 2020). The magistrate judge recommended dismissing state law claims brought against the Air Force on sovereign immunity grounds, but found that most of the remaining claims, including claims under CERCLA, should go to trial. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Cases to Watch, CERCLA, Contribution, Cost Recovery, Federal Tort Claims Act, Iowa, Landfill, Ninth Circuit, Nuisance, Property Value, Response Action Contractors, Sovereign Immunity, Superfund, Trespass

Sometimes a movie can solve one mystery but hold off answering others, leaving viewers eager for the sequel. Legal opinions can be the same, as is the Third Circuit’s opinion in Cranbury Brick Yard, LLC v. United States, No. 18-3287 (3^rd Cir. Nov. 22, 2019). After holding that the limitations period for a contribution action accrues from the date of entry into a non-judicial settlement and order on consent, the Court then sidesteps the issue of exactly what limitations period applies. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Federal Tort Claims Act, New Jersey, Remediation, Statute of Limitations, Superfund, Third Circuit