On August 1, 2014, the Ninth Circuit Court of Appeals handed down a decision in Arizona v. Raytheon Co., No. 12-15691 (9^th Cir. Aug. 1, 2014), that may give trial courts some pause before approving future CERCLA settlements.  At issue was whether the trial court failed to adequately scrutinize consent decrees entered into between the Arizona Department of Environmental Quality (the “ADEQ”) and twenty-two Potentially Responsible Parties (“PRPs”) allegedly liable under CERCLA for contamination at the Broadway-Patano Landfill Site.  The majority opinion held that the trial court’s deference to the AQED’s judgment that the settlements were fair and reasonable was impermissible, and sent the case back down for a more thorough fairness hearing.   However, the more important aspect of the decision may be that, in dicta, the Court concluded that “[e]ven if EPA had been a party to the proposed consent decrees in this case, the district court would have failed to fulfill its duty to independently scrutinize the parties’ agreements.”  Id. at 21. Read More »

Share | Email| Comments|  Topics: Arizona, CERCLA, Cleanup, Consent Decree, Contamination, Contribution, EPA, Landfill, Ninth Circuit, Remediation, Removal, Superfund

Determining the appropriate Statute of Limitations for claims brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (“CERCLA”), is often a tricky matter.  Usually, the issue arises in the context of determining whether a claim is properly brought under Section 107(a), 42 U.S.C. § 9607(a), for costs voluntarily incurred, or § 113(f), 42 U.S.C. § 9613(f), for costs incurred pursuant to a court order or approved settlement, as Section 107(a) claims may be subject to a six-year statute of limitations, while claims under Section 113(f) have a three-year limitations period.  However, in State of New York v. Next Millenium Realty, LLC, No. 12-2894-cv (2^nd Cir. Oct. 15, 2013), the Second Circuit turned its attention to a different distinction, the one between removal actions and remedial actions, as Section 107(a) claims “must be commenced … for a removal action, within 3 years after completion of the removal action [and] for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action. . . .”  42 U.S.C. Section 9613(g)(2)(B).  In order to find the claims of the State of New York timely, the Court held that a water purification system in use for over 15 years was nevertheless a removal action and not a remedial action because, among other things, the measures were intended to “minimize and mitigate” damage from contamination and not to “permanently eliminate” it.  Id. at 24. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Cost Recovery, New Jersey, Procedure, Remediation, Removal, Second Circuit, Statute of Limitations, Superfund

As footnoted in yesterday’s post, the decision in Trinity Industries, Inc. v. Chicago Bridge & Iron Co., No. 12-2059 (3^rd Cir. Aug. 20, 2013), was a twofer.  Yesterday, we wrote about that part of the decision which held that a party who has resolved its liability under state statutes may seek contribution under Section 113(f) of CERCLA.  Today, we look at the second part of the decision, which concerns the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901, et seq.  Read More »

Share | Email| Comments|  Topics: Cleanup, Consent Decree, Contamination, Pennsylvania, Private Right of Action, RCRA, Remediation, Removal, Third Circuit, Waste

New Jersey’s Spill Act is similar to, but older than, CERCLA and like CERCLA, many of its contours have yet to be defined.  The New Jersey Supreme Court’s unanimous decision in NJDEP v. Dimant (No. 067993 Sept. 26, 2012), attempts to rectify that in two important areas. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, Cost Recovery, Decisions of Note, New Jersey, Remediation, Removal, Spill Act

Two months ago I blogged about  DeLalla v. Hanover Ins., No. 10-3933 (3rd Cir. Oct. 12, 2011), a case in which the Third Circuit held that, when it comes to removal, each defendant gets its own thirty-day window to file a Notice of Removal such that a later-served defendant is not foreclosed from seeking removal if the thirty-day window has already closed on the first-served defendant.  As befitting a precedential Third Circuit decision, there was clearly a lot of effort put into the 22 page opinion. Read More »

Share | Email| Comments|  Topics: Case Update, Legislation, Procedure, Removal

In a precedential opinion issued on October 12 in the case of DeLalla v. Hanover Ins., No. 10-3933 (3rd Cir. Oct. 12, 2011), the Third Circuit finally picked a side on the question of whether a later-served defendant can remove a case filed in state court more than thirty days after the first defendant was served with the Complaint. But first, some background. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Federal Procedure, Removal, Third Circuit