Cost-recovery and contribution lawsuits under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) can sometimes drag on for several years, or longer, because of the multitude of potentially responsible parties (PRPs), the often-separate liability and allocation phases, and appeals of rulings decided at each phase, among other complications.  The recent decision in Georgia-Pacific Consumer Products LP et al. v. NCR Corp., 1:11-cv-483 (W.D. Mich.), highlights the winding and prolonged paths that some of these cases can take.  Read More »

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On December 6, 2023, in Short Creek Development v. MFA Incorporated, No 22-05021, 2023 WL 8452430 (W.D. Mo. Dec. 6, 2023), a Federal District Court in Missouri held that Defendant Missouri Farmers Association, Inc. ("MFA") failed to demonstrate that a divisibility of harm exception to the rule of joint and several liability should be applied in apportioning responsibility to pay for the cleanup costs at a fertilizer plant.  The case underscores the challenges associated with establishing divisibility of harm in a CERCLA action. Read More »

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In City of St. Charles v. Union Electric Company, the City of St. Charles (the “City”) brought common law claims sounding in negligence against Defendant Union Electric Company dba Ameren Missouri (“Ameren”), alleging that Ameren contaminated the City’s water supply, causing the City to incur millions in cleanup costs. No. 4:23-cv-00846-MTS (E.D. Mo. 2023). Ameren removed the case to federal court because it had been subject to an administrative settlement with EPA to perform the cleanup pursuant to CERCLA, but on November 2, 2023, the U.S. District Court for the Eastern District of Missouri remanded the case back to state court for want of subject matter jurisdiction. Read More »

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On June 23, 2023, in MRP Properties Company LLC v. United States, No. 22-1789, 2023 WL 4141227 (6^th Cir. June 15, 2023), the Sixth Circuit decided that despite having directed production at refineries during World War II, the United States government did not qualify as an “operator” of those facilities under CERCLA, providing additional guidance for courts evaluating what kinds of activities subject a party to operator liability.  Read More »

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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 »

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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 »

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In Rio Linda Elverta Cmty. Water Dist. v. United States, No. 2:17-CV-01349, 2022 WL 3567143 (E.D. Cal. Aug. 18, 2022), the Honorable Kimberly J. Mueller, Chief Judge for the United States District Court for the Eastern District of California, dismissed  two California water utilities’ federal and state law claims against the federal government and several private sector defendants relating to hexavalent chromium (“Cr6”) pollution at the former McClellan Air Force Base (“Base”) near Sacramento, California.  The water utilities allege that during active operations of the Base, the federal government used products containing Cr6, which contaminated the groundwater aquifer from which the water utilities derive municipal drinking water, making it unsafe for human consumption.  Much of the case turned on the interplay between CERCLA sections 104 and 113(h) in the context of a clean up of a federal facility. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Contribution, Cost Recovery, Drinking Water, Federal Facilities, Groundwater, Negligence, Nuisance, RCRA, Remediation, Removal, Subject Matter Jurisdiction, Superfund, Trespass

On August 19, 2022, a magistrate judge of the Colorado District Court held that contribution-defendants cannot assert their own contribution claims under section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because they are only liable for their fair share of response costs.  Atlantic Richfield Co. v. NL Indus., Inc., No. 20-cv-00234-NYW-KLM, 2022 WL 3577261, at *6 (D. Colo. Aug. 19, 2022). The magistrate judge’s analysis resolved questions for potentially responsible parties (“PRPs”) seeking to assert contribution claims against other PRPs based on a claim of inequitable distribution of common liability in a 113(f) action. Id. at *4. Read More »

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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

In Georgia-Pacific Consumer Products LP v. NCR Corporation, the Sixth Circuit confronted a novel question concerning CERCLA’s statutes of limitations: whether a bare declaratory judgment on liability triggers the Section 113(g)(3) three-year limitations period for a contribution claim brought under Section 113(f)(1). The first circuit court to address this issue, the Court answered in the affirmative. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Contribution, Cost Recovery, Declaratory Relief, Michigan, PCBs, Potentially Responsible Parties, Sediment Sites, Sixth Circuit, Statute of Limitations, Superfund