In an unpublished opinion, the United States District Court for the District of New Jersey held that the Government was not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or Resource Conservation and Recovery Act (“RCRA”) for remediation costs incurred at a former defense site. PPG Indus., Inc. v. United States, No. 12-3526, 2018 WL 6168623 (D.N.J. Nov. 26, 2018). Last year we reported on TDY Holdings v. United States, in which the Ninth Circuit rejected a zero percent liability allocation to the government for remediation costs incurred at a former aeronautical manufacturing plant. In PPG Industries, the District of New Jersey found that the Government’s general wartime control over a New Jersey chromite facility was insufficient by itself to impose liability absent a direct connection between the Government and waste disposal activities. The District Court’s decision highlights a hurdle for private parties hoping to hold the government responsible for cleanup costs incurred at former defense sites. Read More »

Share | Email| Comments|  Topics: Allocation, Arranger Liability, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, New Jersey, RCRA, Second Circuit, Superfund, Waste

Last month, the U.S. District Court for the Southern District of Iowa ruled that Dico, Inc. and its corporate affiliate Titan Tire Corporation (collectively, “Dico”) intended to arrange for the disposal of hazardous substances in violation of CERCLA when it knowingly sold multiple buildings contaminated with PCBs with the understanding that the purchaser intended to reuse only the buildings’ steel beams and dispose of the remaining materials. United States v. Dico, Inc., No. 4:10-cv-00503, 2017 U.S. Dist. LEXIS 151580 (S.D. Iowa Sep. 5, 2017).  The decision came after the Eight Circuit Court of Appeals reversed and remanded the lower court’s earlier ruling on summary judgment that Dico was liable as an arranger under CERCLA for the sale of the PCB-laden buildings.  In the appellate decision, which we blogged about here, the Court of Appeals held that the issue of whether Dico intended to dispose of the hazardous substances through the sale was the central question in determining whether CERCLA arranger liability applied and should not have been decided at the summary judgment stage.  That decision, as summarized in our blog, discusses the legal framework of CERCLA arranger liability and the “useful product defense,” which prevents a seller of a useful product from being subject to such liability, even when the product itself is a hazardous substance that requires future disposal.  Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Cost Recovery, Eighth Circuit, EPA, Iowa, Real Estate, Remediation, Removal, Superfund

On July 19, 2017, the Tenth Circuit Court of Appeals held that the United States, as the title owner of a former mine, was a Potentially Responsible Party (PRP) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), despite the fact that it did not have a possessory interest in the property at the time of the disposal of hazardous substances.  The opinion in Chevron Mining Inc. v. United States, No. 15-2209, 2017 U.S. App. LEXIS 12959, at *1 (10th Cir. July 19, 2017) thus appears to put to rest a defense often asserted, primarily by governmental entities, that “bare legal title” is insufficient for CERCLA liability to attach and instead that some other and additional “indicia of ownership” is required. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Contribution, Exploration, Mineral Rights, Public Lands, Remediation, Superfund, Tenth Circuit

Several years ago we reported on Community Action & Environmental Justice v. Union Pacific Corporation, in which a California District Court held the dispersion into the air of particulate matter that reaches the ground or water did not constitute a “disposal” subject to RCRA but, instead, was subject to regulation under the Clean Air Act.  That District Court opinion was affirmed in 2014, in Community Action & Environmental Justice v. Union Pacific Corporation, 764 F.3d 1019 (9^th Cir. 2014).  Yesterday, in the case of Pakootas v. Teck Cominco Metals, No. 15-35228 (9^th Cir. July 27, 2016), the Ninth Circuit expanded this analysis of the relative roles of our environmental laws by holding that a party who disperses air pollutants that eventually settle into the ground or water are not arrangers liable under CERCLA as they have not “disposed of” hazardous substances under the Act. Read More »

Share | Email| Comments|  Topics: Air, Arranger Liability, Bona Fide Prospective Purchaser, California, CERCLA, Clean Air Act, Contamination, Decisions of Note, Emissions, Hazardous Air Pollutants, Ninth Circuit, RCRA, Superfund

Last week, a divided Eighth Circuit in United States v. Dico, Inc., No. 14-2762 (8th Cir. Dec. 10, 2015), reversed in part a district court’s grant of summary judgment against Dico, Inc., in which the lower court found that Dico arranged for disposal of hazardous substances by selling buildings contaminated with PCBs.  In reversing the district court’s determination that Dico intended to dispose of PCBs contained in the insulation of the buildings by selling the entire buildings, the Eighth Circuit also vacated a punitive damages award but allowed civil penalties to stand.  Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Eighth Circuit, Enforcement, EPA, Iowa, Remediation, Superfund, Waste