I know it may surprise some litigators, but occasionally the allegations in a complaint do matter. In Garrett Day v. International Paper, the Court dismissed CERCLA claims brought by the current owner of a former paper mill located in Dayton, Ohio, against alleged former owners. The opinion covers a lot of issues, but the most important is the distinction between “release” and “disposal” under CERCLA. … More
Category Archives: CERCLA contribution
Far too frequently, we are reminded just how hard judges must work to save CERCLA from itself. The decision last week in California River Watch v. Fluor Corporation is the most recent compelling example.
Fluor Corporation has been performing response actions at a site, including operating a soil vapor extraction system, since no later than 1997. Fluor’s remedial action plan was not approved until 2011 and a modified RAP was approved in 2014.… More
Sometimes cases seem to be deciding issues that are so obvious it’s hard to figure out why they get any serious attention from the courts. One such case is ASARCO, LLC v. Celanese Chemical Company recently decided by the Ninth Circuit. That decision affirmed the lower court’s unsurprising ruling that, when a private party agrees to perform response actions or pay response costs in a private party settlement under CERCLA,… More
Are Concurrent CERCLA Claims For Section 107(a) Cost Recovery and Section 113(f) Contribution Permissible?
Given the uncertainties after Cooper Industries v. Aviall about what cause of action a PRP has for recovering response costs under CERCLA, many parties take the prudent course of pleading claims under both for cost recovery and for contribution. A federal court in South Carolina in PCS Nitrogen, Inc. v. Ross Develop Corporation recently held that when a PRP can satisfy the pleading requirements of both a cost recovery claim and a contribution claim it is limited to only a contribution claim.… More
Over a decade after the Supreme Court’s decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs at Superfund sites would almost always prefer to seek reimbursement of those costs as a Section 107 claim given its more favorable statute of limitations and joint and several liability standard. However, the post-Aviall case law offers little clarity as to the precise dividing line between Section 107 and 113 claims.… More
The decision earlier this month in Cyprus Amax Minerals v. TCI Pacific Communications is a useful reminder that corporate form exists for a reason and that parent corporations who ignore corporate niceties do so at their peril. In the Bestfoods decision, the Supreme Court made clear that CERCLA does not displace state corporate law and that a parent corporation will only be held indirectly liable for the acts of its subsidiaries when the corporate veil can be pierced under applicable state law.… More
Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with the federal or state government and were limited to Section 113(f) CERCLA contribution claims with three year statute of limitations and (2) PRPs who were permitted to pursue cost recovery claims under Section 107 of CERCLA with joint and several liability and a six year statute of limitations.… More
It is generally the rule that a lessee who does not operate the property it rents will not be liable under CERCLA except in the unusual circumstance where the lessee qualifies as an “owner” of the property. Typically, this means that a lessee who sublets the rented property will not be liable under CERCLA. That was the holding in a recent federal case in New York, Next Millennium Realty,… More
In Burlington Northern in 2008, the US Supreme Court ruled that Superfund liability could be apportioned whenever there was a reasonable basis for showing that the harm was divisible, such as by considering the length of time a PRP had been operating a site, the volume of waste contributed, or the percentage of the site utilized by that PRP. Notwithstanding that ruling, many courts since 2008 have continued to shy away from apportionment,… More
Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement. That is the holding in a recent federal case in Montana, ASARCO LLC v. Atlantic Richfield Company. There, ASARCO had entered into a 1998 consent decree under RCRA and the Clean Water Act to remediate a contaminated site that for over a century had been used as a lead smelting facility. … More
Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives. This judicial review is at the heart of CERCLA’s settlement process. Since Superfund settlements provide broad protection to settling parties, judicial approval provides the necessary and exclusive procedural mechanism to vouchsafe that a proposed settlement is in the interest of the public as well as all other parties.… More
How Much Deference Do States Get in Entering CERCLA Consent Decrees? Probably A Lot, But Perhaps Not As Much as You Thought
In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA decision to enter into the decree and the district court review of the EPA decision are entitled to significant deference. Last week, in Arizona v.… More
To the extent there was any remaining uncertainty, the Sixth Circuit has now made crystalline that a party settling some or all of its liability under CERCLA with the United States or a state has a contribution claim under Section 113 and not a cost recovery action under Section 107. Additionally, that contribution claim must be brought within three years of the date of any judgment entering the settlement or of any administrative order memorializing the settlement.… More
In contrast to the early days of Superfund when no argument for extending CERCLA liability was too far-fetched, the Second Circuit recently rejected one of the all-time “Hail Mary” passes for CERCLA contribution. The case, ASARCO LLP v. Goodwin, involved a 2009 settlement by ASARCO of Superfund liability involving several contaminated mines it owned in Everett, Washington. After settling, ASARCO asserted contribution claims against residuary trusts established in 1937 by the will of John D.… More
Although one might not ordinarily think to associate child pornography and pollution, the two were linked at an oral argument yesterday before the United States Supreme Court. Specifically, in a child pornography case, the defendant was found guilty of viewing a child pornography video obtained from the Internet. Pursuant to federal statute, the defendant was ordered to make “restitution” in the amount of $3.4 million to the juvenile depicted in the video.… More
The specter of environmental harm used to frighten courts and spawned a generation of decisions extending Superfund liability to virtually any party with a nexus to a site that was contaminated. One case that signaled just how willing courts were to impose a broad view of environmental liability was the 1988 decision by the Fifth Circuit in Tanglewood East Homeowners v. Charles-Thomas, Inc.. In that case,… More
Late last year I blogged on the dubious decision by the Seventh Circuit in Bernstein v. Blankert which held that a settling CERCLA party did not resolve its liability to the government until it had performed all of its obligations under the Consent Decree. While that decision enabled the settling party to get around a statute of limitations problem in bringing a claim against the real polluting party, … More
As Superfund lawyers know, the Supreme Court decision in Burlington Northern required proof of an intent to dispose hazardous substances as a prerequisite to imposition of arranger liability. While lower courts have often blissfully ignored the holdings in Supreme Court decisions under CERCLA, arranger liability seems to be one area in which the lower courts have taken the Supreme Court decision to heart.
In any event,… More
The Fourth Circuit handed down a primer on CERCLA liability last week in PCS Nitrogen Inc. v. Ashley II of Charleston. It should be required reading for Superfund lawyers. The facts in the case are worthy of a law school law school exam question on CERCLA– contamination arising from manufacturing of fertilizer beginning in the 19th century with the original corporate operator long since dissolved giving rise to new generations of corporate owners and operators —… More