Category Archives: Cost Recovery

Oil and Hazardous Substances; Never the Twain Shall Meet

Late last month, in Munoz v. Intercontinental Terminals Company, the 5th Circuit Court of Appeals held that the liability provisions of CERCLA and the Oil Pollution Act do not overlap and that, consequently, where oil and hazardous substances commingle, the sole remedy is under CERCLA.

As the Court correctly noted, it has long been the case under CERCLA that petroleum commingled with hazardous substances is subject to CERCLA jurisdiction as a hazardous substance. … More

EPA Proposes to List PFOA and PFOS as Hazardous Substances: What Could Possibly Go Wrong?

EPA announced today that it is proposing to list PFOA and PFAS as hazardous substances under CERCLA.  EPA appears to be sanguine about how the listing will play out in the real world.

EPA is focused on holding responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment. EPA will use enforcement discretion and other approaches to ensure fairness for minor parties who may have been inadvertently impacted by the contamination.… More

I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is

Yesterday, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA.  I have previously commented on the Court’s tendency to treat CERCLA as much more straightforward and unambiguous than practitioners have understood it to be.  The Court’s approach to section 113 in yesterday’s decision followed this now well-worn path.  In a short, sweet, and unanimous decision,… More

Asbestos. Lead Paint. MTBE. PFAS?

Late last month, New Hampshire filed two law suits seeking to recover a variety of costs and damages it alleges have resulted from contamination caused by releases of PFAS.  It’s a wide ranging suit; New Hampshire asserted claims for negligence, defective design, failure to warn, trespass, and damage to public trust assets, among others.

And what relief does the state seek?  Not much.  It merely seeks that the court enter a judgment:

Finding Defendants liable,… More

The Arbitrary and Capricious Standard Remains in the Eye of the Beholder

In a very interesting – and extremely rare – case, Emhart Industries has successfully defended itself against a unilateral administrative order issued by EPA under CERCLA, on the ground that key decisions made by EPA were arbitrary and capricious.  The decision, concerning the Centredale Manor Restoration Project Superfund Site, is worth a read for CERCLA practitioners, even though it weighs in at 108 pages.… More

Complaints Are Not Totally Meaningless: A CERCLA Plaintiff Must Allege Disposal Against a Former Owner

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, ohioagainst alleged former owners.  The opinion covers a lot of issues, but the most important is the distinction between “release” and “disposal” under CERCLA. … More

Stop the Presses. Superfund is Stupid.

I know that pointing out CERCLA’s stupidity has something of a dog bites man quality, but sometimes Superfund’s stupidity bears repeating.  Today’s exhibit?  New York v. Next Millenium Realty, in which Judge Feuerstein held – rightly, I am compelled to note – that New York’s natural resources damage claim was timely, because the site at issue had been added to the National Priorities List less than three years before the suit was filed.… More

AIG Bows Out of the Pollution Legal Liability Market

On Tuesday, insurance giant AIG announced a major restructuring designed to make it a “more profitable and focused insurer.” Apparently as a result of these efforts to streamline and slim down, AIG has begun notifying holders of itsAIG Pollution Legal Liability insurance that it will no longer be underwriting new policies.  Existing policies will be honored, but renewal will not be available.  AIG will reportedly continue to write Contractors Pollution Liability and Environmental and General Liability Exposure policies.… More

Determining An Intent To Dispose Under CERCLA Remains a Puzzlement

Determining when a person has “arranged” for the disposal of a hazardous substance has long been difficult.  The Supreme Court brought some clarity to the issue in Burlington Northern, when it said that:

While it is true that in some instances an entity’s knowledge that its product will be leaked, spilled, dumped, or otherwise discarded may provide evidence of the entity’s intent to dispose of its hazardous wastes,… 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

Allocating The Liability Shares of Settling PRPs Under CERCLA

Allocation of liability under CERCLA can get messy.  One particularly complex issue arises in a private cost recovery action where some but not all the PRPs have settled with the private party.  In contrast to a government cost recovery action, where CERCLA Section 113(f)(2) expressly provides that the response costs sought to be recovered by the government are reduced dollar-for-dollar by any settlement proceeds, CERCLA is silent with respect to the treatment of settlements in private party CERCLA claims.… More

Parent Corporations Beware: Control Over Your Subsidiaries is a Double-Edged Sword

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

CERCLA Cost Recovery v. Contribution Again: It’s Still Unfair

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

Settling Parties In Government Consent Orders Have CERCLA Claims For Contribution Not Cost Recovery

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

The Emerging Non-Expansive View of CERCLA Liability: The Decline of Tanglewood East

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

When Is An Arranger Not An Arranger? When It Sells Some Good Stuff Along With The Junk

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

CERCLA Liability For Relocation of Hazardous Waste — Is There Any Limit?

Just as tortfeasors take their victims as they find them, s0 PRPs take their hazardous waste sites as they find them.   This rule has been around since the beginning of CERCLA and means that a party which arranges for the disposal of its waste at one location can be generally be held responsible for whatever response costs that waste generates, including environmental cleanup costs at a second location if that waste is transshipped without the knowledge of the PRP.… More

Superfund Liability for the Repair of a Useful Product

A few months ago, I blogged on the decision in Duke Energy Progress Inc. v. Alcan Aluminum Corporation where a court held that a company would not be held liable for selling used transformers to a recycling facility for refurbishing and eventual resale to a new user.   At the center of that holding was the notion that the transformers were not leaking PCB oils when delivered to the recycling center and could be refurbished in the exercise of due care without causing a release of  PCBs.… More

What Response Costs Are Necessary Under CERCLA

In a post last year, I discussed what I I thought was the dubious dismissal of  a CERCLA cost recovery action in Stratford Holding, LLC v. Fog Cap Retail Investors LLC.   That case involved a holding that the costs of  investigating the presence of solvents in the groundwater above regulatory standards were not   “necessary” response costs because the the state had declined to list the site on its Hazardous Sites Inventory. … More

CERCLA’s Act of War Defense — Potential Collateral Damage

For the first time in CERCLA’s history, a court has concluded that a Superfund claim was barred by the “act of war” defense.  In that case, In Re September 11 Litigation, the judge ruled that a property owner a block from Ground Zero could not recover the costs of cleaning up dust on his building from the collapse of the World Trade Center towers because the dust resulted from an act of war.  … More

Unstated Rule on Superfund Liability for Sale of a Usable Product — One Year Later

Exactly a year ago, I posted a blog that argued that the decisions on Superfund liability for the sale of usable product could be distilled down to an “unstated rule” — a party will be held liable as having intended to arrange for the disposal of a hazardous substance if it sells a waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance. … More

CERCLA Cost Recovery or Contribution Claim: Another Judicial Misstep

The chaos unleashed by Aviall continues in a recent decision by the Seventh Circuit.  In Bernstein v. Blankert, the Seventh Circuit revisited the issue whether a party having entered into an Administrative Order by Consent had a claim against other PRPs for cost recovery under Section 107(a) or for contribution under Section 113(f)(1).   Offering a novel and entirely misguided conclusion, the court found that whether a party has a claim for cost recovery or for contribution hinges on whether that party had completed all of its obligations under the AOC.  … More

Is CERCLA More Reasonable Than the Common Law? Only in California, I Hope

In Burlington Northern, the Supreme Court made clear that, in order to impose liability on a defendant as an “arranger” under Superfund for the sale of a product, the plaintiff must demonstrate that the defendant

must have entered into the sale of [the product] with the intention that at least a portion of the product be disposed during the transfer process.

Although courts do not seem thus far to have taken to heart the Supreme Court’s allocation discussion in Burlington Northern,… More

Another Dispatch From the Guidance Front: Is EPA’s Vapor Intrusion Guidance Ready For Prime Time?

A story in Tuesday’s BNA Daily Environment Report notes that several representatives of industry interests are asking EPA to hold off on issuing its much-anticipated vapor intrusion guidance until it can be subject to public comment.  Apparently, the current draft was sent to regional offices – but not distributed to the public – for review.  Someone at Inside EPA leaked it to Fox Rothschild and asked for comment.  … More

Is There A De Minimis Defense To Liability in Superfund? The Supreme Court Indicated There Was; One District Court Says No.

Burlington Northern squarely decided that where environmental harm is divisible, an individual PRP can obtain apportionment of its liability and be assigned a specific percentage share; in such instances, there will be no joint and several liability.  The possibility follows from Burlington Northern that a PRP which can establish divisibility of harm might be able to show that its percentage share of liability is so small that it effectively has a complete defense to  liability.… More

Winning the Superfund Remedy Fight in Court: Don’t Count On It

Remedy decisions are almost always won or lost at the agency level.  Once the ROD issues, a PRP’s chance of having the selected remedy overturned in court is slim to none – a point that was driven home in a recent decision in the Lower Fox River case.

There, the government had engaged in a decade-long remedy selection process which began as a $325 million PCB dredging project.  … More

Aviall’s Continuing Impact on PRP Settlements in Superfund

Over a decade after it was issued, Aviall continues to cause difficulties for private settling parties in CERCLA.  In Lewis v. Russell, a federal district court recently considered whether a PRP which agreed to a cash payment from another PRP has to reduce his claim against other PRPs by the actual amount of the cash payment or by the proportionate share of the settling party.  … More

EPA Issues Two New Superfund Guidance Documents: Plus Ca Change, Plus C’est La Meme Chose

EPA recently released two guidance documents relevant to Superfund practitioners.  One establishes revised procedures regarding how EPA will manage negotiations with PRPs.  The second updates EPA’s guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic.

The RD/RA negotiation guidance has to be seen to be believed. It’s a document that seems reasonable on its face,… More

Indemnification Agreements Under CERCLA Do Not Affect Liability to Entities That Are Not Parties to the Agreement

Section 107(e) of CERCLA provides that

No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure,… More

Selling Water-Based Superfund Liabilities – A Toxic Brew

In a poignant moment in Godfather III, Al Pacino’s character says: “Just when I thought I was out… they pull me back in”. EPA’s recent eye-popping announcement of a $366 million encore settlement by AVX with respect to the New Bedford Harbor Superfund Site re-enacts that moment, graphically illustrating the toxic combination of EPA’s sorry history of escalating remedy costs for water-based Superfund sites and Consent Decrees that contain cost-reopening provisions.… More

The Case For a Broad Pre-Emption Rule for CERCLA Contribution

Although some of the proposed tax plans and budgets being discussed in this election year suggest that the same dollar can be counted and spent multiple times, a growing number of courts have held that CERCLA response costs can only be allocated once. The most recent holding comes in the Lower Fox River litigation where Judge Greisbach ruled that CERCLA pre-empts most ancillary state law claims – whether styled as state law contribution claims or common law claims for negligence and strict liability: “If the funds were expended pursuant to CERCLA,… More

More Evidence That the Government No Longer Automatically Wins Superfund Cases: New Jersey Requires Proof of a Nexus Between a Discharge and Response Costs

As I have previously noted, government attorneys’ traditional approach to litigating Superfund cases has been to announce that they represent the government and that they therefore win. There was hope, following the Supreme Court’s decision in Burlington Northern, that those days were nearing an end.

It is clear to me, following too many cases after Burlington Northern,… More

CERCLA and Original Sin – Who Has to Pay for Other People’s Contamination

In an environmental dispute between innocents involving a Church and a downgradient property owner, a federal court recently found the Church, although without original sin, was less innocent and should bear all the costs of the cleanup, even the costs of cleaning up an independent source of contamination on the downgradient property. In Alprof Realty LLC v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints,… More

CERCLA Investigations That Really Are At Risk

Site owners who conduct environmental investigations of potential releases of hazardous substances in the expectation that they will be able to recover their costs from the party whose operations gave rise to that threatened release may be surprised by the outcome in a recent federal district case in Georgia, Stratford Holding, LLC v. Fog Cap Retail Investors LLC. There, a site owner brought CERCLA and state law claims against a tenant and subtenant for dry cleaning operations after the owner’s sampling showed over 2 ppm of tetrachloroethylene (PCE),… More

The Dismal History of Superfund’s Water Body Sites

An article in the New York Times earlier this week reported on EPA’s attempts under the Superfund program to address contamination in water bodies, such as rivers, lakes and harbors. Although the article acknowledges that these water body sites are technically challenging, it does not remotely capture the tortured regulatory history of these sites or the dubious remedial approach that EPA is now pursuing. It is not an exaggeration to say that some of the most notorious Superfund failures involve water body sites.… More

CERCLA Apportionment: Volume Isn’t Always King

PRPs hoping that the Supreme Court in Burlington Northern had established that volume could always be used as a basis for apportioning CERCLA liability will be disappointed by a recent Seventh Circuit opinion.  Affirming the trial court’s apportionment decision in the Lower Fox River case on which I blogged earlier, the Seventh Circuit distinguished Burlington Northern and followed the Restatement test that apportionment is not available whenever each tortfeasor’s contribution is independently capable of causing the harm.  … More

Is Knowledge an Element of CERCLA Liaiblity: The Lower Fox River Court Said So, But Did The Court Really Mean It?

The course of the Lower Fox River Superfund litigation has been a continual set of surprises, and its denouement was true to that pattern. In his post-trial decision last week, Judge Griesbach wrote the sentence that most CERCLA defendants have been waiting 30 years to hear: “It … seems doubtful that a defendant can ever be found to be an arranger if he did not know the substance in question is hazardous.” For a statute in which liability has always been held to be strict and without fault,… More

Apportionment in CERCLA — No Bright Line Test

The Lower Fox River Superfund site continues to pump out decisions on key CERCLA issues. Most recently, the federal court in Wisconsin in US v. NCR Corp. took on the issue of divisibility of harm in granting a preliminary injunction requiring one of the PRPs, NCR, to complete the removal of 660,000 cubic yards of PCB-contaminated sediments from a portion of the Lower Fox River. In entering that injunction,… More

Third Time May Be The Charm in the Lower Fox River PCB Superfund Matter

It’s always satisfying to find an open-minded judge who is willing to change his decision when he is shown to be wrong, but Judge Greisbach of the Eastern District of Wisconsin may be crossing the line from open-mindedness into a chronic inability to make up his mind. In the past 9 months, Judge Greisbach has issued three separate decisions in US v. NCR on the subject of whether a party,… More

CERCLA’s Easily Confused Statutes of Limitations

Deciding statute of limitations issues in CERCLA cases is not always a straightforward matter as the recent 54 page opinion in American Premier Underwriters Inc. v. General Electric Company illustrates.   There, a federal court in Ohio was faced with the unenviable task of trying to determine whether remedial actions and removal actions at four separate railroad sites located in four different states were barred by statutes of limitations under CERCLA and state law. … More

Post Aviall Settlement Jurisprudence — Back to the Future

Over the first two decades of CERCLA, the rule gradually emerged that parties which settled their liability were restricted to contribution claims under Section 113(f)(1) and would be entitled to contribution protection under Section 113(f)(c)(2). Moreover, in order to ensure the effectiveness of that settlement scheme, courts routinely ruled that claims against settling parties were all barred by contribution protection regardless whether those claims had been asserted in the form of direct CERCLA cost recovery claims under Section 107 or as common law tort claims for negligence,… More

The Unstated Liability Rule For the Sale Of Usable Wastes

Arguments about liability for the sale of “usable wastes” are as old as Superfund. The fact patterns involving the sale of usable wastes can be varied; however, the cases seem to be governed by the following simple but never explicitly stated rule: a party will be held liable if it sells a waste that cannot be used or won’t be used as delivered without first causing the release of a hazardous substance.… More

Obama Budget Would Cut Superfund by 6%: How About A New Approach?

According to a report in yesterday’s Greenwire, President Obama’s proposed budget would reduce Superfund spending by 6%, from $565 million to $532 million. I still don’t understand why Obama, particularly with Cass Sunstein still at OMB, hasn’t turned this problem into an opportunity. I know I’ve flogged this one before, but a significant part of the explanation for the size of the Superfund budget is related to CERCLA’s status as the last bastion of command and control regulation. Everyone who practices in this area could provide endless examples of the almost unbelievable extent of micromanaging indulged in by EPA and its consultants. Even where EPA is recovering oversight costs,… More

Rethinking Successor Liability under CERCLA

The PCB contamination in the Lower Fox River in Wisconsin continues to spawn novel Superfund decisions. The latest is US v. NCR, in which Judge Greisbach of the Eastern District of Wisconsin reversed his initial ruling, made less than six months ago, that the United States could not establish successor liability under CERCLA against Appleton Papers, which had bought assets from the alleged polluting party – NCR Corp – and assumed NCR’s liabilities.… More

Watch What You Do With That Shovel (Or Heavy Equipment): Another Developer Faces Superfund Liability For Site Redevelopment

More than 20 years ago, in the Tanglewood East decision, the 5th Circuit Court of Appeals held that a developers could potentially be liable under CERCLA for conducting site development activities that moved contamination on the site, exacerbated conditions, and required additional cleanup. There have not been many reported cases on this issue since then, so the decision earlier this week in Saline River Properties v.… More

Hurray! A District Court Actually Follows Burlington Northern

Recently, I expressed concern that District Courts, which traditionally have never seen a CERCLA plaintiff they didn’t like, would ignore the Supreme Court’s Burlington Northern decision – at least until there is another Supreme Court decision affirming that Supremes really meant the two-part holding in Burlington Northern: (1) divisibility isn’t that hard and (2) parties aren’t liable as arrangers unless they actually intended to dispose of hazardous material. … More

Toto, I’ve a Feeling We’re Not in Massachusetts Anymore: Exceeding a Cleanup Standard Is Not Necessarily An Imminent Hazard

In an interesting decision issued earlier this month, Judge Lewis Babcock of the District of Colorado ruled, in County of La Plata v. Brown Group Retail, that detection of contamination at levels exceeding state cleanup standards does not, by itself constitute an imminent and substantial endangerment under RCRA. I think that Judge Babcock is correct, but I can’t help but feel that the decision might be different in the blue state of Massachusetts. I was particularly taken by Judge Babcock’s description of the nature and purpose of state regulatory standards:

Regulatory screening levels,… More

Cutting Through the Gordian Knot of Allocation: If You Were Bad, You Lose

In late 2009, Judge Griesbach ruled, in Appleton Papers v. George A. Whiting Paper, that parties who were significantly more “blameworthy” than others were not entitled to contribution from the less blameworthy parties. Last week, Judge Griesbach ruled on the cross-contribution motions from the defendants. 

The defendants took a simple view. If the plaintiffs are not entitled to contribution from the defendants,… More

A Man’s Home (Or Mall Or Other Business) May Be His Castle — But He Still Has to Provide Access When Contamination Is At Issue

Two recent decision illustrate that PRPs do hold some cards in hazardous waste litigation, particularly if they are willing to be aggressive in investigating the contamination. Both cases demonstrate that “victims” or bystanders can face serious consequences if they do not cooperate with the investigation.

In Carlson v. Ameren Corporation, the plaintiffs had purchased a former manufactured gas plant from Ameren Corporation. They brought suit under RCRA,… More

How Much Circumstantial Evidence Is Enough To Establish Liability? More Than Just Proximity and a Bad Name

Sometimes, good lawyering does matter. When DVL found PCBs on its property in Fort Edward, New York, and when it looked up and realized that GE had operated a manufacturing facility which utilized PCBs “almost adjacent” to DVL’s property, DVL and its attorneys may have thought that they had a slam dunk case on liability. Not so fast. Last week, in DVL v. General Electric, Judge Lawrence Kahn awarded GE summary judgment on liability,… More

Pre-Thanksgiving Superfund Rant

As the holiday approaches, I am particularly thankful that I am not counsel to the Washington State DOT in United States v. Washington State DOT, a case that continues to make me want to take EPA, DOJ, and United States District Judge Robert Bryan by the neck and ask them what the heck are they thinking. 

In July, I posted about Judge Bryan’s decision holding that the Washington DOT “arranged”… More

New Arsenic MCL in the Works? Will I Be Dead Before Any of My Sites are Clean?

As Superfund practitioners know, federal NPL sites are generally settled on the basis that the PRPs will first attain interim cleanup levels, though final cleanup levels are not determined until EPA is actually ready to issue its certification of completion of the remedy. Moreover, EPA insists that, should any ARARs change during the course of the cleanup, whatever standards are in effect at the time of site closure will be applied.… More

Yes, Virginia, You Can Estop the Government

One of the first lessons I learned as a summer associate, more years ago than I care to remember, is that the probability of a successful estoppel claim against the government is approximately the same as the probability that there is a Santa Claus. After the recent decision from the District of New Jersey in FMC Corporation v. American Cyanamid, the probability of a successful estoppel claim may still be low,… More

Illusion of Finality in CERCLA

In City of Emeryville v. The Sherwin-Williams Company, the Ninth Circuit recently underscored that CERCLA settlements can be a risky business that don’t always produce finality, particularly when neither the United States nor a state is a party. 

The Ninth Circuit decision grew out of a federal court action by the City of Emeryville involving contamination at a manufacturing facility that had been operated by Sherwin-Williams. Sherwin-Williams settled that suit and obtained what it thought was broad protection against contribution claims based on contamination “at,… More

The Deck is Still Stacked in the Government’s Favor — Is This A Good Thing?

Last week, in City of Pittsfield v. EPA, the First Circuit Court of Appeals affirmed denial of a petition by the City of Pittsfield seeking review of an NPDES permit issued by EPA. The case makes no new law and, by itself, is not particularly remarkable.  Cases on NPDES permit appeals have held for some time that a permittee appealing an NPDES permit must set forth in detail in its petition basically every conceivable claim or argument that they might want to assert. Pretty much no detail is too small. The City of Pittsfield failed to do this,… More

Is CERCLA The Most Poorly Drafted Statute In The History Of Congress?

There are only two permissible answers to this question:

  1. Yes
  2. I don’t know.

I was reminded of this reality in reading the decision issued earlier this month in Solutia v. McWane, in which Chief Magistrate Judge Greene of the Northern District of Alabama held that a party which incurs response costs pursuant to a consent decree or administrative order may not bring an action for cost recovery under § 107 of CERCLA and is instead limited to a contribution action under § 113 of CERCLA.… More

A Combined Superfund and Stormwater Rant

Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the meaning of CERCLA by designing state highways with stormwater collection and drainage structures,… More

CERCLA – Still – Remains Constitutional

Last year, I analogized PRP efforts to have CERCLA’s unilateral administrative order provisions declared unconstitutional to Chevy Chase’s repeated announcements during the first year of Saturday Night Live that Francisco Franco was still dead. Eventually, that joke wore out. With yesterday’s decision by the D. C. Circuit Court of Appeals, in General Electric v. Jackson, upholding EPA’s UAO authority, these legal challenges may be similarly about to wear out.… More

Making Sense of Superfund: The Third Circuit Gives a Lesson to the Supreme Court

One of the outstanding questions following the Supreme Court decisions in Aviall and Atlantic Research was whether a party which had entered into a consent decree with the United States and incurred direct response costs as a result could bring an action for cost recovery under § 107 of CERCLA or whether such a settling party would instead have a contribution action under § 113. The problem facing practitioners and the courts following Atlantic Research was that the Supreme Court seemed to have backed itself into a corner. By focusing its analysis of § 113 so narrowly on the traditional common law understanding of contribution,… More

Superfund Contribution Actions: Bad Guys Need Not Apply

Last week, Judge William Griesbach, of the Federal District Court for the Eastern District of Wisconsin, issued an important Superfund contribution decision, which shows just how much equitable discretion judges have in resolving contribution claims. In Appleton Papers v. George Whiting Paper, Judge Griesbach ruled, on summary judgment, that one equitable factor, knowledge of the potential environmental harm caused by PCBs, trumped all others,… More

Superfund Liability: Owner? Operator? Property Manager?

In an interesting decision issued a few weeks ago, a District Court in Georgia held that a property manager at a strip mall could not be held liable as an owner of a facility under CERCLA. However, the court held that the property manager could be liable as an operator of the facility. I don’t think that the decision is correct, but if it is the law, then property managers would be wise to consider carefully what responsibilities they are willing to assume and what sort of indemnification agreements may be required with the actual property owners.… More

EPA Issues a New Policy on Superfund Negotiations: Time For Another Rant?

Late last week, Elliott Gilberg, Acting Director of EPA’s Office of Site Remediation Enforcement (OSRE) issued an Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations. Members of the regulated community may not be surprised by the contents of the memo, but they certainly will not be pleased. In brief, the memorandum fundamentally makes two points:

EPA wants to shorten the duration of RD/RA negotiation

EPA is going to use the heavy hammer of unilateral administrative orders,… More

Imminent and Substantial Endangerment Under RCRA — I Know It When I See It

Justice Potter Stewart famously said, with respect to obscenity, that “I know it when I see it.” I fear that the test for what constitutes an imminent and substantial endangerment under RCRA is no clearer than Justice Stewart’s subjective test regarding obscenity.

This week, in a decision that is good news for RCRA defendants, Judge Illlston, of the Northern District of California, ruled, in West Coast Home Builders v.… More

Burlington Northern: EPA Speaks

For those of you who cannot get enough of Superfund, I spoke at a Boston Bar Association panel on this subject yesterday about the implications of the Supreme Court’s Burlington Northern decision. Thanks to EPA Region I and Joanna Jerison, head of the Region I Superfund Legal Office, for being willing to speak on so obviously sore a subject. And thanks to Craig Campbell for participating on the panel as well.… More

An Additional Note on Burlington Northern: More Litigation in Your Future?

One more note on the Burlington Northern decision.  A client of mine has already noted that one impact of the decision will be to result in more litigation over divisibility, which will be good for private lawyers (ouch!).  She’s right, as my clients always are, but she shouldn’t be.

Litigation should only increase if EPA does not adjust its settlement demands. If EPA responds appropriately, and makes demands which reflect a fair resolution of a divisible liability,… More

The Supreme Court Decision in Burlington Northern: There Are Limits to Liability Under CERCLA

Those of us who have practiced in the Superfund arena for some time know that the government, in those rare cases where it has been forced to litigate, has used the same oral argument in every case: “Good morning, your honor. My name is ______. I represent the government in this action and we win.” Today, the Supreme Court made clear that that the government now needs a new oral argument template.

In Burlington Northern v.… More

A Rant Against Superfund

As some of my clients know all too well, I’ve been spending a lot of time on some Superfund matters recently. Although I can’t remember a period when I didn’t have at least one moderately active Superfund case, significant immersion in complex remedial decision-making and negotiations provides an unwelcome reminder just how flawed CERCLA is. Almost 20 years after the acid rain provisions of the Clean Air Act ushered in wide-spread acceptance of the use of market mechanisms to achieve environmental protection goals and the state of Massachusetts successfully privatized its state Superfund program,… More

Life After Atlantic Research: The Second Circuit Court of Appeals Holds that Response Costs Incurred Pursuant to a Consent Decree Are Recoverable Under Section 107 Of CERCLA

For those following developments in Superfund cost recovery and contribution case law after the Atlantic Research decision, it seemed worth noting that the Second Circuit Court of Appeals recently held, in W.R. Grace & Co. – Conn. v. Zotos International, Inc., that a party who incurs response costs pursuant to a state consent order has a right to bring an action to recover those response costs under § 107 of CERCLA.… More

Recovery of Attorneys’ Fees Under CERCLA: One Man’s PRP Search Is Another Man’s Litigation Expenses

In Key Tronic Corp. v. United States, the Supreme Court held that costs which are “closely tied to the actual cleanup may constitute a necessary cost of response in and of itself….” Such costs include “work performed in identifying other PRPs.”   According to the Supreme Court, “tracking down other responsible solvent polluters increases the probability that a cleanup will be effective and get paid.”

On the other hand,… More

Private Contribution and Cost Recovery Claims Under CERCLA: The State of the Law after Atlantic Research

For those of you who haven’t been keeping up with the law on private cost recovery and contribution claims under CERCLA, following the decision in Atlantic Research, I recently participated in a panel discussion on the issue. A copy of my presentation can be found here.

The most contentious issue during the discussion was whether private parties who have settled with the government and performed direct cleanups –… More

Say It Loud, Say It Clear; The Inside of a Building Is NOT the Environment

In a recent decision, the 7th Circuit Court of Appeals confirmed that neither CERCLA nor RCRA provide convenient ways for the buyer of a building containing asbestos to finance the abatement of that asbestos. In Sycamore Industrial Park Associates v. Ericsson, the seller of the building replaced the old heating equipment shortly prior to sale, but left the old system, including piping, in place. The buyer sought to make the seller pay for the asbestos abatement on the ground that the seller has disposed of the old equipment by abandoning it in place when it installed the new system.… More