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

On September 27, 2024, in Short Creek Development, LLC v. MFA Incorporated, No. 22-05021-CV-SW-WBG, 2024 WL 4326815 (W.D. Mo. Sept. 27, 2024), Magistrate Judge W. Brian Gaddy determined Plaintiffs’ claim under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) was barred by the applicable statute of limitations as “physical on-site construction of the remedial action” occurred more than six years prior to when Plaintiffs brought their lawsuit.  Specifically, the Magistrate Judge found that costs related to a leachate collection system constructed approximately a year before the adoption of a Record of Decision (“ROD”) amendment outlining a permanent remedy for the Orongo-Duenweg Mining Belt Superfund Site (the “Site”) was the beginning of the six-year limitations period.   In doing so, the Court rejected adoption of a “bright-line” rule that remedial actions begun before adoption of a final remedial plan do not trigger the limitations period.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Cost Recovery, Groundwater, Landfill, Mining, Missouri, Remediation, Removal, Statute of Limitations, Superfund, Waste

This entry was authored by MGKF Summer Associate Karina Zakarian

On June 25, the United States Court of Appeals for the Fourth Circuit, in a case of first impression, vacated the United States District Court for the District of Maryland’s holding in 68th Street Site Work Group v. Alban Tractor Company et al., No. 23-1155 (4th Cir. Jun. 25, 2024), that arranger liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) requires a potentially responsible party to have knowledge that the waste it discards is hazardous. Rather, the Fourth Circuit found that the mere intent to dispose of waste suffices to establish liability under CERCLA. According to the Court, imposing scienter on arrangers of waste disposal would contradict both legislative intent and the strict liability scheme governing superfund site remediation. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contribution, Fourth Circuit, Landfill, Maryland, Superfund, Waste

On May 7, 2024, the United States District Court for the District of New Jersey denied Defendant ISP Environmental Service Inc.’s (“IES”) motion to dismiss the United States’ (“the Government”) complaint seeking relief under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). United States v. ISP Envt’l Servs. Inc., 2024 WL 2013949 (D.N.J. 2024).  IES had argued in support of its motion to dismiss that it was neither an owner or operator of the site at issue, and therefore, was not a potentially responsible party under CERCLA.   The district court nevertheless held that IES was potentially liable under CERCLA as the corporate successor of another entity that had owned and operated the site, GAF Chemicals, because the Government plausibly alleged that IES assumed the liabilities for the site pursuant to a contract with GAF Chemicals.    Read More »

Share | Email| Comments|  Topics: CERCLA, Cost Recovery, Successor Liability, 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

In Pakootas v. Teck Cominco Metals, Ltd., No. 2:04-CV-00256-SAB, 2024 WL 627260 (E.D. Wash. Feb. 14, 2024), the United States District Court for the Eastern District of Washington held that CERCLA does not mandate a procedure for conducting natural resource damage assessments (NRDAs), nor is certainty of costs required for NRDAs to be considered valid under the CERCLA statute. Read More »

Share | Email| Comments|  Topics: CERCLA, Natural Resource Damages, Tribal Lands

On December 6, 2023, in Short Creek Development v. MFA Incorporated, No 22-05021, 2023 WL 8452430 (W.D. Mo. Dec. 6, 2023), a Federal District Court in Missouri held that Defendant Missouri Farmers Association, Inc. ("MFA") failed to demonstrate that a divisibility of harm exception to the rule of joint and several liability should be applied in apportioning responsibility to pay for the cleanup costs at a fertilizer plant.  The case underscores the challenges associated with establishing divisibility of harm in a CERCLA action. Read More »

Share | Email| Comments|  Topics: CERCLA, Cost Recovery, Divisibility

In City of St. Charles v. Union Electric Company, the City of St. Charles (the “City”) brought common law claims sounding in negligence against Defendant Union Electric Company dba Ameren Missouri (“Ameren”), alleging that Ameren contaminated the City’s water supply, causing the City to incur millions in cleanup costs. No. 4:23-cv-00846-MTS (E.D. Mo. 2023). Ameren removed the case to federal court because it had been subject to an administrative settlement with EPA to perform the cleanup pursuant to CERCLA, but on November 2, 2023, the U.S. District Court for the Eastern District of Missouri remanded the case back to state court for want of subject matter jurisdiction. Read More »

Share | Email| Comments|  Topics: CERCLA, Cost Recovery, Federal Jurisdiction, Removal, Subject Matter Jurisdiction

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

On April 26, 2023, the United States Court of Federal Claims ordered the federal government to reimburse Shell U.S.A. and several other oil companies for all cleanup costs, including interest, associated with the cleanup of aviation gas (“avgas”) at a site polluted during World War II efforts. Shell U.S.A., Inc. et al. v. United States, 2023 WL 3090659 at *10 (Fed. Cl. 2023). This was the third such case in which the oil companies were seeking contractual indemnification for costs pursuant to the Contract Settlement Act and the only issue of significance addressed by the Court was whether the Plaintiffs were entitled to recover statutory interest that they previously paid under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). Ultimately, the Court held that the plain reading of CERCLA includes interest as a “charge,” and the government was not immune from paying those costs.  Id. at *8. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Contamination, Court of Federal Claims, Damages, Indemnification, Sovereign Immunity, Superfund