Reminding all Superfund practitioners that while the application of allocation principles and factors may be flexible it is not without boundaries, on September 11, 2018, the Third Circuit filed an opinion vacating and remanding a District Court’s equitable allocation of cleanup costs because the lower court’s methodology resulted in an allocation that was too “speculative.” Trinity Indus., Inc. v. Greenlease Holding Co., No. 16-1994, 2018 WL 4324261, at *12 (3d Cir. Sept. 11, 2018).  The Court pointed to two "mathematical" errors in the District Court’s analysis, and noted that although courts do not have to be perfectly precise in their calculations, they must be able to demonstrate a solid mathematical foundation for arriving at their final number. The ruling also offered guidance for the lower court on an appropriate methodology and application of certain equitable factors. This guidance could prove helpful for other practitioners in this area of the law regarding what the Third Circuit would deem non-speculative, and therefore acceptable. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Cleanup, Contamination, Contribution, Indemnification, Pennsylvania, Pennsylvania Department of Environmental Protection, Property Value, Remediation, Superfund, Third Circuit

The Eleventh Amendment to the United States Constitution preserves the doctrine of sovereign immunity, which shields state governments and their agencies from federal litigation that seeks money damages or equitable relief.  In general, a state government can only be sued if sovereign immunity is expressly waived by statute.  For example, nearly every state and the federal government have enacted a “torts claims act” that abrogates sovereign immunity for certain claims based on the negligence of government employees, and states that accept federal funding are also not immune from federal discrimination suits.  Where no waiver exists, the doctrine of sovereign immunity is broad and provides a shield to environmental suits, including claims under the federal Comprehensive, Environmental, Response, Compensation, and Liability Act (“CERCLA”), as the Fifth Circuit recently affirmed in United States Oil Recovery Site Potentially Responsible Parties Group v. Railroad Comm’n of Texas, et al., Dkt. No. 17-20361, __ F. 3d __, (5th Cir., Aug. 1, 2018).  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Eleventh Amendment, Fifth Circuit, Sovereign Immunity, Superfund, Texas

The Ninth Circuit recently reversed a grant of summary judgment by the United States District Court for the Central District of California in California Department of Toxic Substances Control v. Westside Delivery, LLC, No. 16-56558, 2018 WL 1973715 (9th Cir. Apr. 27, 2018), holding that a defendant who purchased real property at a tax sale had a “contractual relationship” with the previous owner “in connection with” the polluting activities, and therefore was not entitled to a third-party defense under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). In this case, California’s environmental agency, the Department of Toxic Substances Control (DTSC), sought to recover clean up costs from a subsequent owner of the contaminated property and the owner asserted as a defense, recognized under CERCLA, that the contamination was caused by a third party prior to it taking title with whom it had no contractual relationship. The matter before the court was one of first impression in the Ninth Circuit: “Does a defendant who buys real property at a tax sale have a ‘contractual relationship’ with the previous owner of the property within the meaning of CERCLA?” Id. at *1. The court’s affirmative answer will give pause to prospective tax-defaulted property purchasers who may find themselves liable for cleanup costs under CERCLA. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Cost Recovery, Innocent Party, Ninth Circuit, Real Estate, Superfund

In an opinion issued on February 12, 2018 in the case of Cooper Crouse-Hinds LLC et al. v. City of Syracuse et al., Case No. 5:16-cv-01201 (N.D.N.Y. Feb. 12, 2018), Judge Mae D’Agostino of the United States District Court for the Northern District of New York weighed in on the issue of when state court orders for removal and remediation resolve a potentially responsible party's liability to the government under Section 113 of CERCLA, and in this case allowing, for at least the time being, Section 107 claims to proceed where there was no clear guidance from the Second Circuit. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contribution, Cost Recovery, Landfill, New York, Remediation, Removal, Second Circuit, Superfund

A group of private landowners ended of 2017 with a Montana Supreme Court ruling, in Atlantic Richfield Company v. Montana Second Judicial District Court, that they could proceed with their state law claims for restoration damages against the owner of a site contaminated by a former copper smelter. No. 16-0555, 2017 WL 6629410 (Mont. December 29, 2017). In a split decision, the Court found that the landowners’ claims for restoration damages were not preempted by the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because the claims did not constitute a challenge to the U.S. Environmental Protection Agency’s established cleanup plan for the Site. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Damages, Montana, Preemption, Private Right of Action, Real Estate, Remediation, Residential, Superfund, Trespass

A bit over two years ago, we reported here on the district court decision in TDY Holdings v. United States, 122 F. Supp. 3d 998  (S.D. Cal. 2015), in which the court allocated 0% liability to the United States, despite the fact that it was an undisputed PRP at the site.  The decision was surprising at the time and, as with many surprising decisions, it did not survive on appeal as earlier this month the Ninth Circuit held in TDY Holdings v. United States, No. 15-56483, 2017 U.S. App. Lexis 19371 (9th Cir. Oct. 4, 2017), that TDY, a military contractor, was not solely responsible for remediation costs incurred at a former aeronautical manufacturing plant and thus remanded the matter back to the lower court to take another pass at allocating liability among the two parties.  The Ninth Circuit’s opinion thus allows military contractors seeking contribution from the government for remediation costs incurred at former defense sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to breathe a long sigh of relief. Read More »

Share | Email| Comments|  Topics: California, Case Update, CERCLA, Contribution, Cost Recovery, Ninth Circuit, Remediation, Superfund

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

Last month, the U.S. District Court for the Southern District of Iowa ruled that Dico, Inc. and its corporate affiliate Titan Tire Corporation (collectively, “Dico”) intended to arrange for the disposal of hazardous substances in violation of CERCLA when it knowingly sold multiple buildings contaminated with PCBs with the understanding that the purchaser intended to reuse only the buildings’ steel beams and dispose of the remaining materials. United States v. Dico, Inc., No. 4:10-cv-00503, 2017 U.S. Dist. LEXIS 151580 (S.D. Iowa Sep. 5, 2017).  The decision came after the Eight Circuit Court of Appeals reversed and remanded the lower court’s earlier ruling on summary judgment that Dico was liable as an arranger under CERCLA for the sale of the PCB-laden buildings.  In the appellate decision, which we blogged about here, the Court of Appeals held that the issue of whether Dico intended to dispose of the hazardous substances through the sale was the central question in determining whether CERCLA arranger liability applied and should not have been decided at the summary judgment stage.  That decision, as summarized in our blog, discusses the legal framework of CERCLA arranger liability and the “useful product defense,” which prevents a seller of a useful product from being subject to such liability, even when the product itself is a hazardous substance that requires future disposal.  Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Cost Recovery, Eighth Circuit, EPA, Iowa, Real Estate, Remediation, Removal, Superfund

On July 19, 2017, the Tenth Circuit Court of Appeals held that the United States, as the title owner of a former mine, was a Potentially Responsible Party (PRP) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), despite the fact that it did not have a possessory interest in the property at the time of the disposal of hazardous substances.  The opinion in Chevron Mining Inc. v. United States, No. 15-2209, 2017 U.S. App. LEXIS 12959, at *1 (10th Cir. July 19, 2017) thus appears to put to rest a defense often asserted, primarily by governmental entities, that “bare legal title” is insufficient for CERCLA liability to attach and instead that some other and additional “indicia of ownership” is required. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Contribution, Exploration, Mineral Rights, Public Lands, Remediation, Superfund, Tenth Circuit

Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.  Read More »

Share | Email| Comments|  Topics: Contamination, Damages, Defense Costs, Indemnification, Insurance, Insurance Coverage, Medical Monitoring, Negligence, New York, Remediation, Second Circuit, Superfund, Toxic Torts