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

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

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 »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Illinois, Remediation, Superfund

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 »

Share | Email| Comments|  Topics: CERCLA, Clean Air Act, Cleanup, Contribution, Cost Recovery, Indiana, RCRA, Remediation, Seventh Circuit, Statute of Limitations, Superfund

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 »

Share | Email| Comments|  Topics: Bankruptcy, CERCLA, Contribution, Cost Recovery, Mining, Ninth Circuit, Superfund