Often, the most important concern for a landowner facing a cost recovery action is not liability, but rather insurance coverage.  And then, the question may not be “is it covered” but “how much am I covered for?”  On August 9, 2012, the California Supreme Court issued its opinon in California v. Continental Insurance Co.. No. S170560 (Ca. Aug. 9, 2012), providing some comfort to parties locked in expensive clean-up battles. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Class Actions, Cost Recovery, Decisions of Note, Insurance Coverage, Remediation, Superfund

The Fox River clean-up – or rather, litigation concerning the clean-up – has resulted in some meaty written opinions for CERCLA lawyers to chew over, particularly on the issue of apportionment in a post BNSF world.  Friday’s decision by the Seventh Circuit Court of Appeals in United States v. NCR Corp., No. 10-C-910 (7^th Cir. Aug. 3, 2012) is no exception, with the Court not only tackling divisibility, but also hinting that NCR might have 107(a) claim against other PRPs, an issue that the United States Supreme Court left unresolved in the Atlantic Research decision. Read More »

Share | Email| Comments|  Topics: Cases to Watch, CERCLA, Cleanup, Cost Recovery, Decisions of Note, Remediation, Superfund

Although CERCLA has been around for many years, courts are still interpreting both its parts and its whole.  In recent years, the Supreme Court has tried to direct traffic between Section 107(a), which permits PRPs to bring cost recovery actions against other PRPs for “any necessary costs of response incurred” by the PRP bringing suit, and Section 113(f), which permits PRPs who have been sued under section 106 or 107(a) or have entered into a judicially-approved settlement with a federal or state government resolving CERCLA liability to bring actions for contribution against other PRPs to recover amounts paid in excess of their equitable share of liability.   Because these two provisions have differing limitations periods, burdens of proof, and allow for different forms of recovery against multiple defendants, the distinction is often significant. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Eleventh Circuit, Enforcement Action, Statute of Limitations, Superfund, Waste

For the Association of Corporate Counsel, Nicole recently wrote about the decision in Menasha Corp. v. United States Department of Justice, No. 11-C-682 (E.D. Wis. 2012) which should give counsel some pause before communicating with employees of a client’s affiliated entities, particularly in multi-party environmental cost-recovery cases.  Her article can be found here.

Share | Email| Comments|  Topics: Cost Recovery, Decisions of Note, Superfund

A little creativity goes a long way and cash-strapped municipal entities need all the creativity they can get. But it doesn’t always put money in your pocket. And such was the result in Emergency Services Billing Corporation, Inc. v. Allstate Insurance Co., No. 11-2381 (7^th Cir. Feb. 2, 2011) which upheld a trial court’s determination that automobiles owned and used for personal purposes are not “facilities” under CERCLA and hence drivers (and their insurance carriers) are not liable for “response costs” incurred in responding to motor vehicle accidents. And thus the Volunteer Fire Department of Westville, Indiana, cannot recoup the amounts it spent in responding to the four separate, unrelated auto accidents that were the subject of the collection efforts. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Indiana, Seventh Circuit

Yes, it sounds like something your 12 year old daughter would call her friend, but here we’re talking about the Bona Fide Prospective Purchaser defense to CERCLA joint and several liability.  MGKF Partner Jonathan Spergel recently wrote about this defense for the Association of Corporate Counsel.  You can find his article, along with others written by MGKF attorneys, at ACC’s Green House Counsel webpage.

Share | Email| Comments|  Topics: Bona Fide Prospective Purchaser, CERCLA, Cleanup, Cost Recovery, Green House Counsel, Real Estate, Superfund

Ten years after purchasing land in Detroit from the Michigan State Transportation Commission, Dietrich Bergmann sued that Commission and the Michigan Department of Transportation (collectively the “Department”) under CERCLA, seeking costs for investigation and remediation of his property.  The parties settled their dispute resulting in the district court’s entering a consent decree in 1991.  The decree obligated the Department to remediate Bergmann’s property in approximately 4 years .  If the Department didn’t in good faith attempt to meet the remediation deadline, then it was required to make liquidated damage payments to Bergmann of $2,000 at the beginning of each month that the remediation was incomplete. Read More »

Share | Email| Comments|  Topics: CERCLA, Consent Decree, Cost Recovery, Enforcement, Equity, Laches, Statute of Limitations

On Monday, the Second Circuit issued two opinions in the consolidated case of State of New York v. Solvent Chemical Co., Nos. 10-2026-cv, 10-2166-cv, & 10-23830-cv (2^nd Cir. Dec. 19, 2011).  The first was a Summary Opinion, without precedential effect, which partially affirmed and partially rejected the district court’s method of allocating liability for past response costs incurred by Solvent Chemical Co. in remediating contamination at a site along the Niagara River in New York.  The second, a precedential opinion, reversed the trial court’s decision denying Solvent a declaratory judgment holding two other PRPs, DuPont and Olin Corp., liable for future remediation costs.  In essence, the Court of Appeals held that if the trial court could determine that DuPont and Olin were partially liable for past remediation costs, then it was required to find them liable for future costs, even if the trial court was not then able to allocate those future costs.  From a purely logical standpoint, not a very controversial or earth-shattering decision. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Declaratory Relief, Second Circuit, Superfund

In a case of dueling summary judgment motions, a defendant insurance company came up on the short end of the stick on two principal legal issues resulting in a summary judgment finding in favor of Plaintiff, Wells Cargo, Inc. Read More »

Share | Email| Comments|  Topics: CERCLA, Cost Recovery, Defense Costs, Insurance

In a decision that should pique the interests of environmental consultants across the country, the U.S. District Court for the Eastern District of Missouri issued an opinion last month in BancorpSouth Bank v. Environmental Operations, Inc., Case No. 4:11CV9 HEA (E.D. Mo. Oct. 11, 2011),allowing a CERCLA claim to survive against several engineering firms hired to handle the remediation of an old landfill slated for a Brownfields redevelopment project.  The complaint alleged that the defendants failed to properly design and construct an engineered cell on the site (which didn’t account for the potential for methane gas to escape the cell), and further failed to adequately screen hazardous materials from the dirt on the site prior to spreading it around as fill material.  These activities, according to the plaintiff, not only constituted malpractice, but also turned the engineering firms into “operators” and/or “arrangers” under CERCLA, subjecting them to strict, joint and several liability for alleged damages in excess of $10 million. Read More »

Share | Email| Comments|  Topics: CERCLA, Consultant Liability, Cost Recovery, Decisions of Note, Negligence, Remediation, Response Action Contractors, Superfund, Waste