In a January 6 decision, U.S. v. Brace, No. 21-2966 (3rd Cir. Jan. 6, 2023), the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling that a long-standing consent decree prohibiting discharge to wetlands is valid and unambiguous. This decision is a good reminder that Consent Decrees have a long shelf life and that private parties should negotiate carefully to ensure both its short-term and long-term interests are protected. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Consent Decree, Enforcement, Third Circuit, Wetlands

Before neighboring property owners can intervene to challenge a consent decree in a remediation action, they must establish Article III standing. On August 5, 2022, The United States Court of Appeals for the Eighth Circuit affirmed the ruling of the United States District Court for the District of Minnesota and held that neighboring property owners of a chemical plant undergoing environmental remediation lacked constitutional standing to intervene to oppose an amended consent decree and remedial action plan. United States v. Reilly Tar & Chem. Corp., Slip Op. No. 20-2786 (8^th Cir. Aug. 5, 2022). The court reasoned that the entry of the amended consent decree was not a causal link of the proposed intervenors’ harm because it did not require the chemical plant to clean-up chlorinated volatile organic compounds (CVOCs) and perchloroethylene (PCE) and therefore did not alter the chemical plant’s preexisting duties regarding PCE. Id. Read More »

Share | Email| Comments|  Topics: CERCLA, Consent Decree, Eighth Circuit, Groundwater, Intervention, Solvents, Standing, Superfund

On May 18, 2022 in York et al. v. Northrop Grumman Corp. Guidance and Electronics Co. Inc. et al., No. 21-cv-03251 (W.D. Mo.), a Missouri federal court dismissed Plaintiffs’ complaint alleging negligence, nuisance and trespass from alleged groundwater contamination, finding the claims were preempted by an existing consent decree. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Injunction, Missouri, Negligence, Nuisance, Preemption, Property Value, Superfund, Trespass, Water

Less than a month after hearing oral arguments, the United States Supreme Court issued its unanimous decision in Guam v. United States, Docket No. 20-382 (May 24, 2021), the eagerly anticipated opinion on whether consent decrees and administrative orders that do not expressly resolve liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) nevertheless give rise to a claim for contribution under Section 113(f)(3) of CERCLA. The issue is a crucial one and has been the subject of numerous court opinions because of the short, three-year limitations period for contribution actions. The opinion, which the Court intended to provide clarity in the area, holds that only settlements that release “CERCLA-specific liability” trigger the right to contribution. Read More »

Share | Email| Comments|  Topics: Case Update, CERCLA, Clean Water Act, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Decisions of Note, Landfill, Statute of Limitations, Superfund, Supreme Court, United States Supreme Court, Waste

The First Circuit recently affirmed the District of Rhode Island’s approval of a superfund consent decree entered into between the United States Environmental Protection Agency (“EPA”), the State of Rhode Island and several Potentially Responsible Parties despite opposition by third party PRPs that the settlement was arbitrary and capricious and contrary to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Emhart Indus., Inc. v. CNA Holdings LLC, No. 19-1563, slip op. (1st Cir. 2021 Feb. 17, 2021). What makes this case unique, and bolstered the arguments of the objectors, is that the settlement incorporated work pursuant to a ROD that the District Court had already determined has not been selected in accordance with law. Nevertheless, both the District Court and the First Circuit held that the finding did not preclude the settlement, leaving the objectors exposed to contribution claims for a remedy potentially inconsistent with the National Contingency Plan (“NCP”). In affirming the lower court, the First Circuit highlighted the “integral part” that early settlement plays in CERCLA’s statutory scheme, thus giving deference to the settling parties. Read More »

Share | Email| Comments|  Topics: Allocation, Apportionment, CERCLA, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Divisibility, First Circuit, Groundwater, National Contingency Plan, National Priorities List, Remediation, Sediment Sites, Superfund

Last week, the U.S. District Court for the Eastern District of Michigan refused to void a private settlement agreement entered between Sierra Club and DTE in the face of an objection by the United States that the settlement agreement interfered with a related consent decree and infringed on the government’s enforcement authority. United States v. DTE Energy Co., et al., No. 10-CV-13101 (E.D. Mich. Dec. 3, 2020). Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Air Act, Consent Decree, Emissions, Energy, Enforcement, Enforcement Action, Michigan

In Frazer/Exton Development, L.P. v. United States, the United States Court of Appeals for the Federal Circuit affirmed the dismissal of a takings claim against the federal government relating to environmental contamination because the appellants, current and former landowners of the site at issue, filed their lawsuit more than 6 years after environmental remediation was complete. Frazer/Exton Development, L.P. v. United States, No. 2019-2143 (Fed. Cir. Apr. 7, 2020). Read More »

Share | Email| Comments|  Topics: Brownfields, CERCLA, Cleanup, Consent Decree, Contamination, Damages, Environmental Covenants, Federal Circuit, Pennsylvania, Real Estate, Remediation, Statute of Limitations, Superfund, Takings

On September 20, 2019, hitting a trifecta of commonly-litigated CERCLA issues, Judge Nancy J. Rosenstengel, Chief Justice of the United States District Court for the Southern District of Illinois, partially denied and partially granted Defendants’ Motion to Dismiss in The Premcor Refining Group Inc., v. Apex Oil Company, Inc., et. al., No. 17-cv-738-NJR-MAB (S.D. Ill.). The Court held (a) Premcor had adequately pled fact to withstand a defense that the petroleum exclusion barred the claims; (b) Premcor could not simultaneously plead 107 and 113 claims, dismissing its cost recovery claims inasmuch as Premcor had settled its claims with the State of Illinois; and (c) the contribution protection Apex Oil obtained in its settlement with the State of Illinois included CERCLA claims barred Premcor’s claims. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Illinois, Remediation, Superfund

On January 15, the United States District Court for the Central District of California granted Defendants’ Motion for Summary Judgment in Arconic, Inc., et al. v. APC Inv. Co., Case No. CV-14-6456-GW (C.D. Cal. Jan. 15, 2019), ruling that Plaintiffs’ contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 113(g)(3) were barred by the applicable three-year statute of limitations. What makes the decision noteworthy is that the Court found that the limitations period began to run ten years before the Plaintiffs entered into the Consent Decree with EPA and the State of California to undertake the remediation giving rise to the contribution claim. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Consent Decree, Contamination, Contribution, Ninth Circuit, Remediation, Removal, Statute of Limitations, Superfund, Water

The federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), better known as Superfund, provides private parties with two types of claims to recover costs associated with investigating and remediating contaminated sites – a cost recovery claim under CERCLA Section 107(a), 42 U.S.C. § 9607(a), and a contribution claim under Section 113(f), 42 U.S.C. § 9613(f).  A party has a claim for contribution under CERCLA Section 113(f)(3)(B) if that party has “resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.”  A party can therefore settle its liability for a contaminated site with the EPA or a state government, and then seek to recover a portion of the costs of that settlement from other potentially responsible parties who contributed to the contamination at the site.  But, CERCLA imposes a 3-year statute of limitations on Section 113 contribution actions, which begins to run from the date of entry of the administrative or judicially approved settlement.  While at first, this may appear to be a cut-and-dry statute of limitations, there is ample case law exploring the nuances of what it means for a party to have “resolved” its liability with the government such that the 3-year statute of limitations begins to run.  Last month, the United States Courts of Appeals for the Ninth Circuit added to that growing body of case law, in Asarco, LLC v. Atlantic Richfield Co., 866 F.3d 1108 (9th Cir. 2017). Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, CERCLA, Consent Decree, Contamination, Contribution, Decisions of Note, Ninth Circuit, Statute of Limitations, Superfund