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 »

Share | Email| Comments|  Topics: Alaska, Cleanup, Contamination, Federal Tort Claims Act, Negligence, Ninth Circuit, Nuisance, Odors, PCBs, Property Damage, Remediation, Removal, Sovereign Immunity, Toxic Torts, Trespass

In a report and recommendation issued last week, a magistrate judge with the United States District Court for the District of Idaho found that disputes of fact preclude summary judgment on the majority of claims brought by a landfill against the United States Air Force and two other defendants. Idaho Waste Systems, Inc. v. U.S. Air Force, No. 1:18-cv-00229 (D.C. Idaho Jan. 27, 2020). The magistrate judge recommended dismissing state law claims brought against the Air Force on sovereign immunity grounds, but found that most of the remaining claims, including claims under CERCLA, should go to trial. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Cases to Watch, CERCLA, Contribution, Cost Recovery, Federal Tort Claims Act, Iowa, Landfill, Ninth Circuit, Nuisance, Property Value, Response Action Contractors, Sovereign Immunity, Superfund, Trespass

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

In an opinion and order released last week, the United States District Court for the District of New Mexico denied the federal government’s motions to dismiss claims relating to the 2015 Gold King Mine wastewater spill. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). The district court was not convinced by the government’s argument that it was entitled to sovereign immunity and that the plaintiffs’ complaints were inadequate. It denied the motions and allowed all but one of the plaintiffs’ claims to proceed to discovery. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Cleanup, Colorado, Contamination, EPA, Federal Tort Claims Act, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Sovereign Immunity, Superfund, Trespass, Tribal Lands, Utah, Water