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Showing 48 posts in Cost Recovery.

On September 20, 2019, hitting a trifecta of commonly-litigated CERCLA issues, Judge Nancy J. Rosenstengel, Chief Justice of the United States District Court for the Southern District of Illinois, partially denied and partially granted Defendants’ Motion to Dismiss in The Premcor Refining Group Inc., v. Apex Oil Company, Inc., et. al., No. 17-cv-738-NJR-MAB (S.D. Ill.). The Court held (a) Premcor had adequately pled fact to withstand a defense that the petroleum exclusion barred the claims; (b) Premcor could not simultaneously plead 107 and 113 claims, dismissing its cost recovery claims inasmuch as Premcor had settled its claims with the State of Illinois; and (c) the contribution protection Apex Oil obtained in its settlement with the State of Illinois included CERCLA claims barred Premcor’s claims. Read More »

On August 22, 2019, the Seventh Circuit held that a plaintiff had sufficiently settled its cleanup liability under a settlement agreement with the U.S. Environmental Protection Agency (“EPA”) and the State of Indiana, which triggered the plaintiff’s right to bring a contribution claim, but that the statute of limitations on the plaintiff’s contribution claim had run. See Refined Metals Corp. v. NL Industries Inc., No. 1-17-cv-2565 (S.D. Ind. Aug. 22, 2019). Read More »

This Post was primarily authored by Andrew LeDonne, a MGKF summer associate. 

On July 17, 2019, the Ninth Circuit Court of Appeals upheld a district court’s interpretation of a release agreement between ASARCO and the Union Pacific Railroad Company (“UP”)  to preclude ASARCO's claim against UP to recover cleanup costs for the Coeur d’Alene superfund site (the "CDA Site"). ASARCO LLC v. Union Pac. R.R. Co., 2019 WL 3216615 (9th Cir. July 17, 2019).  This was the second time that the Ninth Circuit had the matter before it, and dispatched it with few words -- but with enough to remind practitioners of the importance of careful wording of settlement and release agreements.  Read More »

In yet another installment of the long-running Dico case, on April 11, 2019, the United States Court of Appeals for the Eighth Circuit unanimously affirmed a district court’s $11 million judgment against Dico, Inc., and Titan Tire Corporation, two related entities of Titan International Inc. United States v. Dico Inc., No. 17-3462 (8th Cir. Apr. 11, 2019). The judgment was based on the finding that the entities were “arrangers” under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) when they sold contaminated buildings to an unaware buyer in what the Court determined was an intentional act to rid themselves of environmental obligations to safely dispose of PCBs. Read More »

In an unpublished opinion, the United States District Court for the District of New Jersey held that the Government was not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or Resource Conservation and Recovery Act (“RCRA”) for remediation costs incurred at a former defense site. PPG Indus., Inc. v. United States, No. 12-3526, 2018 WL 6168623 (D.N.J. Nov. 26, 2018). Last year we reported on TDY Holdings v. United States, in which the Ninth Circuit rejected a zero percent liability allocation to the government for remediation costs incurred at a former aeronautical manufacturing plant. In PPG Industries, the District of New Jersey found that the Government’s general wartime control over a New Jersey chromite facility was insufficient by itself to impose liability absent a direct connection between the Government and waste disposal activities. The District Court’s decision highlights a hurdle for private parties hoping to hold the government responsible for cleanup costs incurred at former defense sites. Read More »

Last week the Third Circuit held that the owner of a remediated site could be liable under CERCLA § 107(a) for environmental response costs incurred before it acquired the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem., LLC., __ F.3d __, No. 17-2607, 2018 WL 4844077 (3d Cir. 2018). In its opinion reversing the district court’s grant of partial summary judgment in advance of trial, the court concluded that “all costs” in § 107(a)(4)(A) means an owner is “indeed liable for all response costs, whether incurred before or after acquiring the property.” Id. at *5. Our blog post discussing the district court’s decision, 204 F. Supp. 3d 814 (E.D. Pa. 2016), can be found hereRead More »

The Eleventh Amendment to the United States Constitution preserves the doctrine of sovereign immunity, which shields state governments and their agencies from federal litigation that seeks money damages or equitable relief.  In general, a state government can only be sued if sovereign immunity is expressly waived by statute.  For example, nearly every state and the federal government have enacted a “torts claims act” that abrogates sovereign immunity for certain claims based on the negligence of government employees, and states that accept federal funding are also not immune from federal discrimination suits.  Where no waiver exists, the doctrine of sovereign immunity is broad and provides a shield to environmental suits, including claims under the federal Comprehensive, Environmental, Response, Compensation, and Liability Act (“CERCLA”), as the Fifth Circuit recently affirmed in United States Oil Recovery Site Potentially Responsible Parties Group v. Railroad Comm’n of Texas, et al., Dkt. No. 17-20361, __ F. 3d __, (5th Cir., Aug. 1, 2018).  Read More »

The Ninth Circuit recently reversed a grant of summary judgment by the United States District Court for the Central District of California in California Department of Toxic Substances Control v. Westside Delivery, LLC, No. 16-56558, 2018 WL 1973715 (9th Cir. Apr. 27, 2018), holding that a defendant who purchased real property at a tax sale had a “contractual relationship” with the previous owner “in connection with” the polluting activities, and therefore was not entitled to a third-party defense under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). In this case, California’s environmental agency, the Department of Toxic Substances Control (DTSC), sought to recover clean up costs from a subsequent owner of the contaminated property and the owner asserted as a defense, recognized under CERCLA, that the contamination was caused by a third party prior to it taking title with whom it had no contractual relationship. The matter before the court was one of first impression in the Ninth Circuit: “Does a defendant who buys real property at a tax sale have a ‘contractual relationship’ with the previous owner of the property within the meaning of CERCLA?” Id. at *1. The court’s affirmative answer will give pause to prospective tax-defaulted property purchasers who may find themselves liable for cleanup costs under CERCLA. Read More »

In an opinion issued on February 12, 2018 in the case of Cooper Crouse-Hinds LLC et al. v. City of Syracuse et al., Case No. 5:16-cv-01201 (N.D.N.Y. Feb. 12, 2018), Judge Mae D’Agostino of the United States District Court for the Northern District of New York weighed in on the issue of when state court orders for removal and remediation resolve a potentially responsible party's liability to the government under Section 113 of CERCLA, and in this case allowing, for at least the time being, Section 107 claims to proceed where there was no clear guidance from the Second Circuit. Read More »

A bit over two years ago, we reported here on the district court decision in TDY Holdings v. United States, 122 F. Supp. 3d 998  (S.D. Cal. 2015), in which the court allocated 0% liability to the United States, despite the fact that it was an undisputed PRP at the site.  The decision was surprising at the time and, as with many surprising decisions, it did not survive on appeal as earlier this month the Ninth Circuit held in TDY Holdings v. United States, No. 15-56483, 2017 U.S. App. Lexis 19371 (9th Cir. Oct. 4, 2017), that TDY, a military contractor, was not solely responsible for remediation costs incurred at a former aeronautical manufacturing plant and thus remanded the matter back to the lower court to take another pass at allocating liability among the two parties.  The Ninth Circuit’s opinion thus allows military contractors seeking contribution from the government for remediation costs incurred at former defense sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to breathe a long sigh of relief. Read More »