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Showing 72 posts in Remediation.

On September 3, 2021, the United States Court of Appeals, Seventh Circuit, vacated the lower court’s determination that liability for remediating the environmental harm associated with a groundwater plume was divisible under Section 107 of CERCLA. In Von Duprin LLC v. Major Holdings, LLC, the environmental harm stemmed from a groundwater plume created from decades of known pollution involving four parcels and primarily four parties. No. 20-1711 (7th Cir. Sept. 3, 2021). As we reported here, the trial court’s apportionment of liability appeared to intermingle factors relevant to both an allocation and apportionment of liability. The appellate court found the same, and vacated the trial court’s apportionment of liability due in part to the apparent application of factors relevant to an allocation of joint liability. At a threshold level, the appellate court also vacated the trial court’s determination at summary judgment that a reasonable basis existed to apportion liability based on causal factors, rather than allocate joint liability based on equitable factors. The appellate court affirmed, however, the trial court’s holdings related to the bona fide prospective purchaser (BFPP) defense, compliance with the National Contingency Plan (NCP), and the admission of expert testimony. Read More »

On August 19, 2021, the U.S. Court of Federal Claims issued yet another decision rejecting the government’s effort to avoid responsibility for cleanup costs stemming from the plaintiff oil companies’ World War II-era, government-ordered production of aviation fuel. Chevron U.S.A., Inc. v. United States, No. 20-1784. This time, the government argued that the Court lacked jurisdiction over the dispute, and that plaintiff Texaco’s predecessor and the government entered into a mutual release foreclosing the instant liability. Read More »

On August 4, 2021, the U.S. Court of Appeals for the Federal Circuit rebuked the government’s “overly technical” attempt under res judicata to avoid responsibility for cleanup costs stemming from the large-scale production of aviation fuel as part of the World War II effort. Shell Oil Co. v. United States (No. 20-2221). “In doing so,” the Court explained, it “hope[d] to put an end to the government’s continued resistance to making payments . . . it is obligated to make.” Read More »

On March 1, 2021, the U.S. District Court for the Southern District of Ohio issued a ruling denying in part the summary judgment motion of Defendants Ingersoll-Rand and Trane U.S., against whom Plaintiff FIP Realty Co. brought various claims related to the historic release of VOCs on a site now owned by Plaintiff. See Fip Realty Co. v. Ingersoll-Rand Plc, No. 2:19-cv-03291. After acquiring the site out of receivership in 2010, Plaintiff retained several environmental consulting firms and undertook voluntary remediation efforts pursuant to the Ohio Voluntary Action Program (VAP). Six years later Plaintiff submitted a No Further Action (NFA) letter to the Ohio EPA, which in turn issued a Final Order and Covenant releasing Plaintiff from liability at the site as a result of its successful remediation. In 2019 Plaintiff filed the instant lawsuit seeking to recover remediation costs under CERCLA Sections 107(a) and 113(f)(3)(B), and to obtain a declaratory judgment under Section 113(g)(2) that Defendants are liable for all future costs. Defendants moved for summary judgment on various issues, two of which are the subject of disagreement among the federal appellate courts. Read More »

The First Circuit recently affirmed the District of Rhode Island’s approval of a superfund consent decree entered into between the United States Environmental Protection Agency (“EPA”), the State of Rhode Island and several Potentially Responsible Parties despite opposition by third party PRPs that the settlement was arbitrary and capricious and contrary to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Emhart Indus., Inc. v. CNA Holdings LLC, No. 19-1563, slip op. (1st Cir. 2021 Feb. 17, 2021). What makes this case unique, and bolstered the arguments of the objectors, is that the settlement incorporated work pursuant to a ROD that the District Court had already determined has not been selected in accordance with law. Nevertheless, both the District Court and the First Circuit held that the finding did not preclude the settlement, leaving the objectors exposed to contribution claims for a remedy potentially inconsistent with the National Contingency Plan (“NCP”). In affirming the lower court, the First Circuit highlighted the “integral part” that early settlement plays in CERCLA’s statutory scheme, thus giving deference to the settling parties. Read More »

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 »

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 »

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 »

The Federal Tort Claims Act permits claims for monetary damages against the United States for injury or loss of property caused by the wrongful acts of federal employees. See 28 U.S.C. § 1346(b)(1). However, this waiver of sovereign immunity is limited by the discretionary function exception, which preserves immunity for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). Recently, the United States Court of Appeals for the Ninth Circuit analyzed the discretionary function exception in the context of environmental contamination, finding that the exception does not apply to what can best be described as ordinary negligence in the performance of a site remediation. Nanouk v. United States, No. 13-35116 (Sept. 4, 2020). Read More »

In late July 2020, the United States District Court for the Southern District of Ohio granted in part and denied in part defendants’ motion to dismiss in a case involving releases of uranium radiation and other non-radioactive waste onto plaintiffs’ property. See Op. and Order, McGlone v. Centrus Energy Corp., et al., Case No. 2:19-cv-02196 (S.D. Ohio, July 31, 2020). Claims involving the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Price-Anderson Act and were dismissed for failing to state a claim, while most state law tort claims for releases of non-radioactive waste were permitted to move forward, the court clarifying that medical monitoring exists as a form of damages under Ohio law and not as a separate claim. Read More »