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 month, in Markmik, LLC v. Packer (unreported decision, No. 23-P-736), the Massachusetts Appeals Court affirmed a trial court’s finding that a less expensive cleanup option requiring buyers to accept an activity and use limitation (“AUL”), with no diminution in value damages, was appropriate given a guaranty by sellers that was silent about the level of cleanup committed to. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Cleanup, Contamination, Cost Recovery, Damages, Groundwater, Massachusetts, Property Value, Real Estate, Remediation, Vapor Intrusion

In September 2020, I wrote a Litigation Blog post about the Ninth Circuit’s decision in Nanouk v. United States, 974 F.3d 941 (9th Cir. 2020), which considered whether the so-called discretionary function exception barred tort claims against the government in connection with its lengthy, haphazard cleanup of a PCB hotspot near a Cold War-era military installation in Alaska. As I explained in that article, the exception bars tort claims that are based on discretionary government conduct—often following a policy-based analysis—but not claims that are based on simple negligence by government officials.  Because cleanup protocols for such bases were generally grounded in economic and national security policy, the Ninth Circuit held the exception barred all claims asserted by the plaintiff, whose adjacent land was impacted by the PCBs, except one claim: that after deciding to undertake the cleanup in 1990, the government simply failed to do it for 13 years. The Court remanded that issue, instructing the government to proffer evidence showing that the delay in effectuating the cleanup was likewise policy based.  On remand, the trial court addressed this issue in denying without prejudice the United States' Motion to Dismiss.  Nanouk v. United States, Case No. 3:15-cv-00221-RRB (Mar. 15, 2023).    Read More »

Share | Email| Comments|  Topics: Alaska, Case Update, Cleanup, Contamination, Federal Tort Claims Act, Negligence, Nuisance, Odors, PCBs, Property Damage, Remediation, Removal, Sovereign Immunity, Toxic Torts, Trespass

In Rio Linda Elverta Cmty. Water Dist. v. United States, No. 2:17-CV-01349, 2022 WL 3567143 (E.D. Cal. Aug. 18, 2022), the Honorable Kimberly J. Mueller, Chief Judge for the United States District Court for the Eastern District of California, dismissed  two California water utilities’ federal and state law claims against the federal government and several private sector defendants relating to hexavalent chromium (“Cr6”) pollution at the former McClellan Air Force Base (“Base”) near Sacramento, California.  The water utilities allege that during active operations of the Base, the federal government used products containing Cr6, which contaminated the groundwater aquifer from which the water utilities derive municipal drinking water, making it unsafe for human consumption.  Much of the case turned on the interplay between CERCLA sections 104 and 113(h) in the context of a clean up of a federal facility. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Contribution, Cost Recovery, Drinking Water, Federal Facilities, Groundwater, Negligence, Nuisance, RCRA, Remediation, Removal, Subject Matter Jurisdiction, Superfund, Trespass

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

What happens when a property owner agrees with a regulator and a prior owner/operator to accept a commercial-level clean-up with institutional controls, but before the remediation is complete and the deed restriction recorded, a new owner takes title and insists on a clean-up to residential standards? Under New Jersey’s Industrial Site Remediation Act (ISRA), who wins? The remediating party, ruled the New Jersey Superior Court, Appellate Division, on December 7, 2021, in an unpublished decision captioned Cozzoli Machine Company v. Crown Real Estate Holdings, Inc., No. A-1733-19. Read More »

Share | Email| Comments|  Topics: Contamination, ISRA, New Jersey, Real Estate, Remediation

On December 2, 2021, addressing issues related to the definition of “disposal” and compliance with the National Contingency Plan (“NCP”) in a claim brought under Section 107 of CERCLA, the United States District Court for the Northern District of California denied both Plaintiff Stanford University’s (“Stanford”) motion for summary judgment and Defendant Agilent Technologies, Inc.’s (“Agilent”) cross motion for summary judgment. See Bd. of Trs. of the Leland Stanford Junior Univ. v. Agilent Techs., Inc., Slip Op. (N.D. Cal. Dec. 2, 2021). The Court denied Stanford’s motion because there was a genuine dispute about whether HP spread PCB contaminated soil over uncontaminated areas of Stanford’s property and Stanford failed to show that it incurred costs consistent with the NCP. Id.  The court denied HP’s cross motion because, although incurred in connection with redevelopment of the property, Stanford’s clean-up costs were “necessary” within the meaning of 42 U.S.C. § 9607(a)(4)(B) and, separately, because a genuine dispute existed as to whether Stanford consented to the disposal of hazardous material on its property. Id. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Cost Recovery, National Contingency Plan, Remediation, Superfund, Waste

On September 3, 2021, the United States Court of Appeals, Seventh Circuit, vacated the lower court’s determination that liability for remediating the environmental harm associated with a groundwater plume was divisible under Section 107 of CERCLA. In Von Duprin LLC v. Major Holdings, LLC, the environmental harm stemmed from a groundwater plume created from decades of known pollution involving four parcels and primarily four parties. No. 20-1711 (7th Cir. Sept. 3, 2021). As we reported here, the trial court’s apportionment of liability appeared to intermingle factors relevant to both an allocation and apportionment of liability. The appellate court found the same, and vacated the trial court’s apportionment of liability due in part to the apparent application of factors relevant to an allocation of joint liability. At a threshold level, the appellate court also vacated the trial court’s determination at summary judgment that a reasonable basis existed to apportion liability based on causal factors, rather than allocate joint liability based on equitable factors. The appellate court affirmed, however, the trial court’s holdings related to the bona fide prospective purchaser (BFPP) defense, compliance with the National Contingency Plan (NCP), and the admission of expert testimony. Read More »

Share | Email| Comments|  Topics: Allocation, Apportionment, Bona Fide Prospective Purchaser, Case Update, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Damages, Declaratory Relief, Divisibility, Groundwater, Indiana, National Contingency Plan, Remediation, Seventh Circuit, Superfund

On August 19, 2021, the U.S. Court of Federal Claims issued yet another decision rejecting the government’s effort to avoid responsibility for cleanup costs stemming from the plaintiff oil companies’ World War II-era, government-ordered production of aviation fuel. Chevron U.S.A., Inc. v. United States, No. 20-1784. This time, the government argued that the Court lacked jurisdiction over the dispute, and that plaintiff Texaco’s predecessor and the government entered into a mutual release foreclosing the instant liability. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cleanup, Court of Federal Claims, Oil and Gas, Remediation