In joint tortfeasor settlements in private party actions under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), courts can choose from two competing federal contribution protection methods: the Uniform Comparative Fault Act (“UCFA”), known as pro rata, and the Uniform Contribution Among Tortfeasors Act (“UCATA”), known as pro tanto.  Last month, in City of Las Cruces and Dona Ana County v The Lofts of Alameda, LLC, Civil Action No. 2:17-cv-00809-JCH-GBW, 2024 WL 4512434, the U.S. District Court for the District of New Mexico considered the merits of both contribution protection methods and concluded that the pro rata approach was the most equitable under the circumstances.  Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Contribution, Cost Recovery, Good Faith Settlement, New Mexico, Potentially Responsible Parties, Solvents, Superfund

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601, et seq., is best known for setting forth a comprehensive mechanism to cleanup hazardous waste sites under a restoration-based approach and for imposing liability on potentially responsible parties. What is less well known, and what is at issue in the latest decision to come out of litigation surrounding the 2015 Gold King Mine release, is CERCLA’s provisions that allow certain governmental entities who act as environmental trustees to recover money damages known as Natural Resource Damages (“NRDs”) from responsible parties for injuries to natural resources caused, directly or indirectly, from the release of hazardous substances, above and beyond the costs to clean up the contamination.  In In re Gold King Mine Release in San Juan Cnty., Colorado, on Aug. 5, 2015, No. 16-CV-931-WJ-LF, 2023 WL 2914718 (D. N.M. Apr. 12, 2023) (“In Re Gold Mine”), the Court held that CERCLA limited the Navajo Nation’s use of NRDs but also that CERCLA did not preempt state tort claims seeking restorative damages.  Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Damages, Drinking Water, Gold King Mine, Mining, Natural Resource Damages, New Mexico, Property Damage, Public Lands, Superfund

In an opinion and order released on November 21, 2022, the United States District Court for the District of New Mexico overseeing litigation arising from the Gold King Mine spill granted a defendant-contractor’s partial summary judgement motion seeking dismissal of claims that it was liable under CERCLA as a transporter, operator, or arranger. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2022 WL 17093503, at *1 (D. N.M. Nov. 21, 2022).  The court held that one of the contractor defendants, Weston Solutions, Inc. (“Weston”), was not subject to CERCLA liability because it only assisted with operating the water management system rather than controlling any operations related to the release of contaminant from the King Gold Mine (“Mine”). Id. This decision follows the court’s earlier denial of a Motion to Dismiss in which the court held that the plaintiffs adequately pled operator, arranger, and transporter liability. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 1282997, at *2-4 (D. N.M. Mar. 20, 2019) (slip opn.). Our blog post discussing the court’s first holding on this issue can be found here. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Clean Water Act, Colorado, Consultant Liability, Gold King Mine, New Mexico, Public Lands, Response Action Contractors, Superfund, Tribal Lands, Utah, Water

There are surprisingly few cases addressing whether, for an entity to be liable as an arranger under CERCLA, it must have known that the disposed substance was dangerous or hazardous. On March 10, 2022, in City of Las Cruces and Dona Ana County v. The Lofts at Alameda, LLC, the U.S. District Court for the District of New Mexico became the third federal district court to answer this question directly.

Two local government entities sued American Linen for cost recovery and contribution, alleging its decades-long operation of dry cleaning facilities caused them to incur costs to remediate a plume of contaminated groundwater. Specifically, the plaintiffs asserted that American Linen instructed its employees to dispose of PCE-laden wastes off site and that it contracted with a truck hauler to transport these wastes to a dump site three miles away. American Linen moved to dismiss, arguing principally that at the time of disposal, it did not know the wastes were hazardous substances. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contamination, Cost Recovery, Groundwater, New Mexico, Potentially Responsible Parties, Remediation, Superfund

In an opinion and order released last week, the MDL court in In re Gold King Mine Release denied response contractors’ motions to dismiss. No. 1:18-md-02824-WJ, 2019 WL 1282997 (D. N.M. March 20, 2019) (slip opn.). The 2015 Gold King Mine release sent over three million gallons of contaminated wastewater into rivers in Colorado, New Mexico, and Utah. In the wake of the spill, the State of New Mexico, the State of Utah, the Navajo Nation, and multiple individual plaintiffs filed suit against the mine’s owner, the federal government, EPA, and EPA response contractors, Weston Solutions, Inc. and Environmental Restoration, LLCC (the “Response Contractors”). The court’s opinion, which allows the majority of plaintiffs’ CERCLA and tort claims to move forward, comes on the heels of a similar order denying the Federal Government’s motions to dismiss. See In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). Our blog post discussing that earlier opinion and order can be found here.    Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Citizen Suit, Clean Water Act, Cleanup, Colorado, Consultant Liability, Contamination, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Response Action Contractors, Superfund, Trespass, Tribal Lands, Utah, Water

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, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Sovereign Immunity, Superfund, Trespass, Tribal Lands, Utah, Water