In joint tortfeasor settlements in private party actions under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), courts can choose from two competing federal contribution protection methods: the Uniform Comparative Fault Act (“UCFA”), known as pro rata, and the Uniform Contribution Among Tortfeasors Act (“UCATA”), known as pro tanto.  Last month, in City of Las Cruces and Dona Ana County v The Lofts of Alameda, LLC, Civil Action No. 2:17-cv-00809-JCH-GBW, 2024 WL 4512434, the U.S. District Court for the District of New Mexico considered the merits of both contribution protection methods and concluded that the pro rata approach was the most equitable under the circumstances.  Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Contribution, Cost Recovery, Good Faith Settlement, New Mexico, Potentially Responsible Parties, Solvents, Superfund

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

Stanford University can proceed with its lawsuit against HP Inc. and Agilent Technologies, Inc., the U.S. District Court for the Northern District of California ruled on September 19, 2022, holding that because certain soil contamination was a “continuous” or abatable nuisance or trespass, Stanford’s nuisance and trespass claims were not time barred and could continue.  Accordingly, the court denied HP and Agilent’s motion for summary judgment on Stanford’s nuisance and trespass claims. Bd. of Trs. of the Leland Stanford Junior Univ. v. Agilent Techs., Inc., No. 18-cv-01199 (N.D. Ca. Sept. 19, 2022). Read More »

Share | Email| Comments|  Topics: California, CERCLA, Contamination, Discovery Rule, Nuisance, PCBs, Solvents, Statute of Limitations, Superfund, Trespass

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 November 17, 2021, the Court of Appeals for the First Circuit affirmed a decision of the lower court that the Puerto Rico Industrial Development Company (PRIDCO) was prima facie liable under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq., that it could not avail itself of the contiguous property owner defense, and that the selected response action was not arbitrary or capricious.  The decision is particularly noteworthy in that the only identified contamination was in the groundwater under PRIDCO’s property, with no evidence that the source of the contamination was any activity on PRIDCO’s property.  Nevertheless, the Court held that because the movement of groundwater constitute a continuous “release,” CERCLA liability attached. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Cost Recovery, EPA, First Circuit, Groundwater, Innocent Party, National Contingency Plan, Owner Liability, Solvents, Superfund

On March 1, 2021, the U.S. District Court for the Southern District of Ohio issued a ruling denying in part the summary judgment motion of Defendants Ingersoll-Rand and Trane U.S., against whom Plaintiff FIP Realty Co. brought various claims related to the historic release of VOCs on a site now owned by Plaintiff. See Fip Realty Co. v. Ingersoll-Rand Plc, No. 2:19-cv-03291. After acquiring the site out of receivership in 2010, Plaintiff retained several environmental consulting firms and undertook voluntary remediation efforts pursuant to the Ohio Voluntary Action Program (VAP). Six years later Plaintiff submitted a No Further Action (NFA) letter to the Ohio EPA, which in turn issued a Final Order and Covenant releasing Plaintiff from liability at the site as a result of its successful remediation. In 2019 Plaintiff filed the instant lawsuit seeking to recover remediation costs under CERCLA Sections 107(a) and 113(f)(3)(B), and to obtain a declaratory judgment under Section 113(g)(2) that Defendants are liable for all future costs. Defendants moved for summary judgment on various issues, two of which are the subject of disagreement among the federal appellate courts. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contribution, Cost Recovery, Groundwater, Ohio, Remediation, Sixth Circuit, Solvents, Statute of Limitations, Superfund

The D.C. Circuit recently held that EPA was not required to consider mitigation measures taken at a site when determining whether to add the site to the National Priorities List (“NPL”) under CERCLA. Meritor, Inc. v. EPA, No. 18-1325, 2020 WL 4299124 (D.C. Cir. July 28, 2020).

In 2016, the U.S. Environmental Protection Agency (“EPA”) conducted a study of indoor air quality at the Rockwell International Wheel & Trim facility (the “Site”), located in Mississippi, and discovered elevated concentrations of toluene, trichloroethylene (“TCE”), and cis-1,2-dichloroethene (“DCE”) in the main building at the Site. In 2017, Meritor, Inc. (“Meritor”), which inherited liability for contamination at the Site, conducted a subsurface investigation beneath the main building and uncovered elevated levels of toluene and TCE. In that same year, Meritor installed a sub-slab depressurization system designed to mitigate the impacts of vapor intrusion in the main building. In 2018, notwithstanding Meritor’s mitigation efforts, EPA added the Site to the NPL based on vapor intrusion impacts. Read More »

Share | Email| Comments|  Topics: CERCLA, D.C. Circuit, National Priorities List, Solvents, Superfund, Vapor Intrusion