In Frazer/Exton Development, L.P. v. United States, the United States Court of Appeals for the Federal Circuit affirmed the dismissal of a takings claim against the federal government relating to environmental contamination because the appellants, current and former landowners of the site at issue, filed their lawsuit more than 6 years after environmental remediation was complete. Frazer/Exton Development, L.P. v. United States, No. 2019-2143 (Fed. Cir. Apr. 7, 2020). Read More »

Share | Email| Comments|  Topics: Brownfields, CERCLA, Cleanup, Consent Decree, Contamination, Damages, Environmental Covenants, Federal Circuit, Pennsylvania, Real Estate, Remediation, Statute of Limitations, Superfund, Takings

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

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

Relying on Texas caselaw, the Fifth Circuit, in Gao v. Blue Ridge Landfill TX, L.P., No. 19-40062 (5^th Cir. Oct. 30, 2019), affirmed a district court decision which held that homeowners who moved near a preexisting landfill were subject to a two-year statute of limitations to bring suit based on odors emanating from the landfill. The case, while reliant on state law, nonetheless suggests that such claims that sound in nuisance need to be brought quickly, and that even a change in operations or uptick in odor complaints may be insufficient to reset the clock on the viability of claims. Read More »

Share | Email| Comments|  Topics: Air, Fifth Circuit, Landfill, Nuisance, Odors, Statute of Limitations, Texas, Waste

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

On January 15, the United States District Court for the Central District of California granted Defendants’ Motion for Summary Judgment in Arconic, Inc., et al. v. APC Inv. Co., Case No. CV-14-6456-GW (C.D. Cal. Jan. 15, 2019), ruling that Plaintiffs’ contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 113(g)(3) were barred by the applicable three-year statute of limitations. What makes the decision noteworthy is that the Court found that the limitations period began to run ten years before the Plaintiffs entered into the Consent Decree with EPA and the State of California to undertake the remediation giving rise to the contribution claim. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Consent Decree, Contamination, Contribution, Ninth Circuit, Remediation, Removal, Statute of Limitations, Superfund, Water

The federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), better known as Superfund, provides private parties with two types of claims to recover costs associated with investigating and remediating contaminated sites – a cost recovery claim under CERCLA Section 107(a), 42 U.S.C. § 9607(a), and a contribution claim under Section 113(f), 42 U.S.C. § 9613(f).  A party has a claim for contribution under CERCLA Section 113(f)(3)(B) if that party has “resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.”  A party can therefore settle its liability for a contaminated site with the EPA or a state government, and then seek to recover a portion of the costs of that settlement from other potentially responsible parties who contributed to the contamination at the site.  But, CERCLA imposes a 3-year statute of limitations on Section 113 contribution actions, which begins to run from the date of entry of the administrative or judicially approved settlement.  While at first, this may appear to be a cut-and-dry statute of limitations, there is ample case law exploring the nuances of what it means for a party to have “resolved” its liability with the government such that the 3-year statute of limitations begins to run.  Last month, the United States Courts of Appeals for the Ninth Circuit added to that growing body of case law, in Asarco, LLC v. Atlantic Richfield Co., 866 F.3d 1108 (9th Cir. 2017). Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, CERCLA, Consent Decree, Contamination, Contribution, Decisions of Note, Ninth Circuit, Statute of Limitations, Superfund

In a 2-1 decision last week, the Michigan Court of Appeals declined to dismiss a lawsuit against Dow Chemical in connection with dioxin contamination in the soils of the Tittabawassee River flood plain. Henry v. Dow Chemical Co., LC No. 03-047775-NZ (Mich. Ct. App. June 1, 2017).  Affirming the lower court’s denial of Dow’s motion for summary disposition, the Court of Appeals rejected the argument that the plaintiffs’ claims for negligence and nuisance were barred by the applicable statute of limitations even though the public was made aware of potential dioxin contamination in the river from Dow’s operations as early as 1984.  The Court’s analysis, which was accompanied by a dissenting opinion, turned on the fact that Dow failed to support its motion with evidence that the floodplain soils on the plaintiffs’ property were contaminated as far back as the 1980s.  Read More »

Share | Email| Comments|  Topics: Cases to Watch, Causation, Contamination, Damages, Discovery, Discovery Rule, Michigan, Negligence, Nuisance, Real Estate, Residential, Sediment Sites, Statute of Limitations, Toxic Torts

In the recent decision of Cole v. Marathon Oil Corporation, Case No. 16-10642 (E.D. Mich. Oct. 25, 2016), a district court in the Eastern District of Michigan dismissed, in its entirety, a putative class action lawsuit against a refinery operated by the Marathon Oil Corporation (“Marathon”).  The court dismissed two of the complaint’s three common law claims as time-barred under Michigan law because the complaint failed to plead a “plausible” basis for the court to infer that the claims accrued within the limitations period, and the third cause of action, strict liability, was dismissed on the ground that it is not an independently-recognized cause of action in Michigan.  The decision suggests that, at least under Michigan law, plaintiffs in tort cases must allege more than mere ongoing harm when the allegations on the face of the complaint do not anticipate and provide a plausible basis to avoid an obvious, although unstated, statute of limitations problem. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Emissions, Hazardous Air Pollutants, Medical Monitoring, Michigan, Negligence, Nuisance, Statute of Limitations, Tolling, Toxic Torts

Earlier this month, for the first time a New Jersey trial court applied the often pled, but seldom effective, laches defense to bar a private-party claim for contribution under the New Jersey Spill Compensation and Control Act (the “Spill Act”).  Laches is an equitable principle that can be used to defend a claim that has become too “stale” by the plaintiff’s unreasonable delay in pursuing the claim, and where the defendant has suffered some harm from the delay.  Laches can bar a claim even if the plaintiff initiates the lawsuit within the applicable statute of limitations, or where no statute of limitations exists – such is the case for private party contribution claims under the Spill Act, which last year the New Jersey Supreme Court affirmed in Morristown Assoc. v. Grant Oil Co., 220 N.J. 360 (2015) are not subject to any statute of limitations.  In light of the Morristown decision, private claims for contribution under the Spill Act could therefore be brought decades after the discovery of contamination at a site.   Read More »

Share | Email| Comments|  Topics: Cases to Watch, Contamination, Contribution, Cost Recovery, Decisions of Note, Laches, New Jersey, Remediation, Spill Act, Statute of Limitations