Earlier this week the Eleventh Circuit issued a published decision in Pinares v. United Technology Corporation, No. 18-15104, slip op. (11th Cir. Aug. 31, 2020), affirming the United States District Court for the Southern District of Florida’s grant of summary judgment in favor of Pratt & Whitney, dismissing the plaintiffs’ claims as time-barred. In doing so, the Court held that the personal injury tolling provision in the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) does not apply to public liability actions brought pursuant to the Price-Anderson Act (“PAA”) or to claims styled under state law based on injuries from radiation exposure. Thus, the lawsuit pursued by Joselyn and Steve Santiago alleging that Pratt & Whitney was liable for their deceased daughter Cynthia Santiago’s cancer was time barred. Read More »

Share | Email| Comments|  Topics: Cancer, CERCLA, Contamination, Discovery Rule, Eleventh Circuit, Florida, Negligence, Price-Anderson Act, Statute of Limitations, Superfund, Toxic Torts, Trespass

On August 10, 2020, the Ninth Circuit reversed a lower court’s grant of defendants’ motion for summary judgement, permitting plaintiffs’ case to move forward in a Superfund action for contribution. See Arconic v. APC Investment, No. 19-55181 (9th Cir. Aug. 10, 2020), a case we had reported on here. At issue was whether a settlement between plaintiffs and certain de minimis parties for future potential response costs was an adequate triggering event for the statute of limitations period (against different defendants) in an action for contribution under CERCLA Section 113(f). The Ninth Circuit held that it was not, explaining that in the context of a “judicially approved settlement,” the proper triggering event was a settlement which imposed actual cleanup costs in excess of a party’s estimated liability at the site. Read More »

Share | Email| Comments|  Topics: California, Case Update, CERCLA, Contamination, Contribution, Groundwater, Ninth Circuit, Statute of Limitations, Superfund

The D.C. Circuit recently held that EPA was not required to consider mitigation measures taken at a site when determining whether to add the site to the National Priorities List (“NPL”) under CERCLA. Meritor, Inc. v. EPA, No. 18-1325, 2020 WL 4299124 (D.C. Cir. July 28, 2020).

In 2016, the U.S. Environmental Protection Agency (“EPA”) conducted a study of indoor air quality at the Rockwell International Wheel & Trim facility (the “Site”), located in Mississippi, and discovered elevated concentrations of toluene, trichloroethylene (“TCE”), and cis-1,2-dichloroethene (“DCE”) in the main building at the Site. In 2017, Meritor, Inc. (“Meritor”), which inherited liability for contamination at the Site, conducted a subsurface investigation beneath the main building and uncovered elevated levels of toluene and TCE. In that same year, Meritor installed a sub-slab depressurization system designed to mitigate the impacts of vapor intrusion in the main building. In 2018, notwithstanding Meritor’s mitigation efforts, EPA added the Site to the NPL based on vapor intrusion impacts. Read More »

Share | Email| Comments|  Topics: CERCLA, D.C. Circuit, National Priorities List, Solvents, Superfund, Vapor Intrusion

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 »

Share | Email| Comments|  Topics: CERCLA, Medical Monitoring, Negligence, Nuisance, Ohio, Price-Anderson Act, Remediation, Removal, Statute of Limitations, Superfund, Trespass

In MPM Silicones, LLC v. Union Carbide Corporation, the U.S. Court of Appeals for the Second Circuit held that there can be more than one “remedial action” at a site under certain circumstances for the purpose of determining the statute of limitations under CERCLA. Dkt. No. 17-3468(L), 17-3669(XAP) (2d Cir. 2019). The decision clarified a statement in a prior decision by the Second Circuit that had suggested otherwise. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Groundwater, PCBs, Remediation, Second Circuit, Statute of Limitations, Superfund, West Virginia

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

In a highly anticipated decision, on April 20, 2020, the U.S. Supreme Court ruled that state courts may award restoration damages to landowners who seek, under state law, a more expensive cleanup than that selected by EPA, but as potentially responsible parties under CERCLA they must first receive EPA’s approval of their alternative cleanup plan before they would be entitled to those damages. Atlantic Richfield Co. v. Christian, et al., No. 17-1498 (U.S. Apr. 20, 2020). Beyond its fact-specific holding, the opinion’s broader implications may have a significant impact on CERCLA cleanups and litigation going forward.   Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Damages, Innocent Party, Montana, Nuisance, Property Damage, Remediation, Removal, Residential, Statute of Limitations, Strict Liability, Superfund, Supreme Court, Trespass, United States Supreme Court

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

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