Last month in Chamber of Commerce of the United States of America et al. v. United States Environmental Protection Agency, the D.C. Circuit Court of Appeals denied petitions for review of the United States Environmental Protection Agency’s (“EPA’s” or the “Agency’s”) May 2024 designation of two per- and polyfluoroalkyl substances (“PFAS”) chemicals—perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”)—as “hazardous substances” (the “Designation”) under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or the “Act”).  The petitions were filed by industry interest groups that use, transport, or discharge PFOA and PFOS (the “Petitioners”).  Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Agency Action, CERCLA, Contamination, D.C. Circuit, EPA, Loper Bright, PFAS, Pollutants, Potentially Responsible Parties, Rulemaking, Water

Earlier this month, the U.S. Court of Appeals for the Eleventh Circuit held in City of Brunswick v. Honeywell International, Inc., 2026 WL 2224648 (11th Cir. Aug. 3, 2026), that potentially responsible parties (“PRPs”) implementing an EPA-selected CERCLA remedy pursuant to a consent decree may be “acting under” a federal officer for purposes of the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The decision may provide a basis for such PRPs to remove related state-law claims to federal court. The decision also holds that an appeal of a remand order involving federal officer removal automatically stays district court proceedings, including the remand order, pending appeal. Read More »

Share | Email| Comments|  Topics: Causation, CERCLA, Cleanup, Consent Decree, Contamination, Eleventh Circuit, EPA, Federal Jurisdiction, Potentially Responsible Parties, Preemption, Remediation, Removal, Subject Matter Jurisdiction, Superfund

In a reversal of a decision by the New Jersey District Court, the Court of Appeals for the Third Circuit in In re Congoleum Corporation held 2-1 that the bankruptcy court did not have jurisdiction to reopen an earlier proceeding to interpret findings within a confirmation order, holding interpretation of such orders constitutes a bankruptcy core proceeding.  Chief Judge Chagares also reversed the district court as to the effect of that confirmation order in CERCLA proceedings currently pending before the district court. Read More »

Share | Email| Comments|  Topics: Bankruptcy, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, New Jersey, Potentially Responsible Parties, Superfund, Third Circuit

On May 1, 2025, the United Stated District Court for the Northern District of California evaluated a settlement agreement between a long-time generator of hazardous substances, an innocent plaintiff, and the Department of Toxic Substances Control (“DTSC”), and found that it met the requirements as a good faith agreement under both the California Code of Civil Procedure and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  See Maxim L Properties v. Moyer Products, Ind., 2025 WL 1261419.  The court ruled that a settlement agreement that, among other things, accounts for the “rough approximation” of liability is generally satisfactory in both California and under CERCLA. Read More »

Share | Email| Comments|  Topics: Allocation, California, Certification, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Good Faith Settlement, Potentially Responsible Parties, Remediation, Superfund

Last month in Atlantic Richfield Company v. NL Industries, the Tenth Circuit Court of Appeals held that plaintiff Atlantic Richfield’s action under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) was timely, reversing the District Court’s determination applying the statute of limitations for cost recovery actions and granting summary judgment to the defendant NL Industries entities on that basis. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Potentially Responsible Parties, Statute of Limitations, Superfund, Tenth Circuit

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

In Barclay Lofts LLC v. PPG Industries, Inc., Case No. 20-CV-1694, 2024 WL 4224731 (E.D. Wis. Sept. 18, 2024), a United States District Court in Wisconsin, after deciding several threshold issues under CERCLA, allocated liability for past and future response costs to clean up a contaminated site based upon a detailed analysis of the operational and material handling practices of the potentially responsible parties.  The decision offers insights about the facts that a court may find compelling and the factors that a court may apply to reach an equitable CERCLA allocation among responsible parties. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Operator Liability, Owner Liability, PCBs, Potentially Responsible Parties, Remediation, Solvents, Superfund

Cost-recovery and contribution lawsuits under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) can sometimes drag on for several years, or longer, because of the multitude of potentially responsible parties (PRPs), the often-separate liability and allocation phases, and appeals of rulings decided at each phase, among other complications.  The recent decision in Georgia-Pacific Consumer Products LP et al. v. NCR Corp., 1:11-cv-483 (W.D. Mich.), highlights the winding and prolonged paths that some of these cases can take.  Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Potentially Responsible Parties, Superfund

On June 23, 2023, in MRP Properties Company LLC v. United States, No. 22-1789, 2023 WL 4141227 (6^th Cir. June 15, 2023), the Sixth Circuit decided that despite having directed production at refineries during World War II, the United States government did not qualify as an “operator” of those facilities under CERCLA, providing additional guidance for courts evaluating what kinds of activities subject a party to operator liability.  Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Michigan, Operator Liability, Potentially Responsible Parties, Refinery, Sixth Circuit, Superfund

In Emhart Industries, Inc. v. New England Container Company, Inc., et al., No. 06-218 WES, 2022 WL 15437874 (D.R.I. Oct. 27, 2022), a federal court addressed the parameters for arranger liability under CERCLA where Defendants sent drums with residual hazardous substances for reconditioning.  The Court denied summary judgment for Defendants, finding liability depends on Defendant’s intent to dispose, which is a fact intensive analysis dependent “foremost on intentional steps Defendants took toward the goal of disposal, but also asks whether the product was useful, if Defendants knew of the hazardousness, and the state of the hazardous substances at the time of the transaction.” Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contamination, Contribution, Cost Recovery, Potentially Responsible Parties, Superfund