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

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

It has been more than a decade since the United States Supreme Court decided Burlington Northern & S.F. R. Co. v. United States, 129 S. Ct. 1870 (2009), holding that liability under Section 107(a) of CERCLA is not necessarily joint and several, but in appropriate circumstances can be divisible. And yet, courts still struggle to determine when liability is divisible and thus subject to apportionment rather than equitable allocation, with the latter, joint and several liability, still remaining the go to default. The March 30, 2020 decision from the U.S. District Court for the Southern District of Indiana, in the case of Von Duprin, LLC v. Moran Electric Service, Inc., No. 1:16-cv-01942-TWP—DML (S.D. Ind. Mar. 30, 2020), is no exception. The Court found that liability for a comingled plume of volatile organic compounds (“VOCs”) was divisible, but then applied equitable factors to allocate liability. And, in getting to its final decision, the Court also discussed what costs can be recovered under 107(a), the standard for determining compliance with the National Contingency Plan (“NCP”), and what steps a lessee needs to take to avail itself of the bona fide prospective purchaser (“BFPP”) defense. This is going to be a long one, so pull up a chair. Read More »

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