American Bar Association
 
Superfund and Natural Resource Damages Litigation

Superfund and Natural Resource Damages Litigation


Message from the Chair



Dear Superfund and NRD Litigation Committee Colleagues,
On May 9, 2017, EPA Administrator Pruitt revised two CERCLA delegations of authority (attached). In part, the Administrator’s cover memorandum explains that the authority “to select remedies estimated to cost $50 million or more at sites shall be retained by the Administrator.” Regional Administrators will no longer have delegated authority to select CERCLA remedies exceeding $50 million.

John Gullace
Chair, Superfund & NRD Litigation Committee

View memo



Welcome to the Superfund and Natural Resource Damages Litigation Committee webpage! Our Committee strives to provide relevant and timely information to our members and the public primarily through our newsletters, webinars, conference calls, hot topic updates, website and Year-In-Review. Our membership includes a broad array of private practitioners, in-house counsel, government attorneys, counsel for non-governmental organizations, law students and environmental consultants, all with varying backgrounds and depths of experience in the areas of Superfund and Natural Resource Damages. Whether you are a seasoned Superfund or Natural Resource Damages practitioner, or someone hoping to learn more about these practice areas, we hope you will find the information on this webpage useful and that you will consider joining our Committee. We welcome new participants in the Committee! We are also constantly on the lookout for authors for our newsletter, so if you have insights or research in the areas of Superfund and Natural Resource Damages that you would like to publish through our newsletter, please contact one of our Newsletter Vice Chairs who can be found on our roster of Vice Chairs. We hope you find our website useful and participation in our Committee rewarding.

John F. Gullace
2016-2017 Chair, Superfund and Natural Resource Damages Litigation Committee
ABA Section of Environment, Energy, and Resources





Calling all authors!




Do you have an interesting Superfund or NRD topic you’d like to write about in our next newsletter? If so, please reach out to Carolyn McIntosh (Carolyn.mcintosh@squirepb.com), Brian Ferrasci-O’Malley (brian.ferrasci-omalley@sol.doi.gov) or Kate Campbell (kcampbell@mankogold.com) with your topic idea. All articles will be due no later than Friday, March 10th. Target length is approximately 500 to 1500 words. Thanks in advance for helping make our content so great year after year!


Events, Hot News, & EPA Region Updates

Hot News & EPA Regional Updates

Ninth Circuit: District Court Abused Its Discretion By Allocating 100% Of CERCLA Cleanup Costs To WWII Military Contractor
By P. Derek Petersen (pdpetersen@perkinscoie.com)

In a military contractor’s CERCLA suit against the federal government for contribution, the Ninth Circuit reversed a district court’s decision to allocate zero cleanup costs to the government—because “encumbering a military contractor with 100 percent of CERCLA cleanup costs that were largely incurred during war-effort production was a 180 degree departure from our prior case law.”

Gavora, Inc. v. City of Fairbanks, No. 4-15, 2017 WL 3161626 (D. Alaska July 25, 2017)
By Meline G. MacCurdy

The Gavora case addressed the manner in which a seller’s lack of disclosures regarding environmental contamination can impact the seller’s eventual share of costs under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

Chevron Mining Inc. v. United States, 863 F.3d 1261 (10th Cir. 2017)
By Amy Anderson (aanderson@joneswalker.com) and Michael Chernekoff (mchernekoff@joneswalker.com) of Jones Walker LLP.

In Chevron Mining, the Tenth Circuit held that the United States was an “owner” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) and could therefore be a potentially responsible party (“PRP”) and “strictly liable for its equitable portion of the costs necessary to remediate the contamination arising from mining activity on federal land.” Conversely, the Tenth Circuit also held that the United States was not an “arranger” because it did not “own or possess” the hazardous substances resulting from the mining activities on federal land.

Company is not a Corporate Successor under CERCLA
By Julia H. Jorgensen

In Dixon Lumber Co. v. Austinville Limestone Co., Inc., 2017 U.S. Dist. Lexis 88642 (W.D. Va. June 9, 2017), a lumber company was awarded partial summary judgment after the court determined that it was not a corporate successor to a mining company under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Legal Title Plus Control Makes United States Liable as CERCLA Owner of Navajo Nation Lands, Court Rules
By Derek Petersen (pdpetersen@perkinscoie.com) and Chris Thomas (cthomas@perkinscoie.com) of Perkins Coie LLP

After reviewing supplemental briefing, District of Arizona Judge David Campbell ruled on August 15, 2017 that the United States is liable under CERCLA as an “owner” of contaminated Navajo Reservation lands, to which it holds fee title as trustee, in light of its “plenary and supervisory power” over the land. El Paso Natural Gas Co. LLC v. United States, No. 14-08165 PCT-DGC, 2017 WL 3492993 (D. Ariz. Aug. 15, 2017).

Emhart Industries, Inc. v. New England Container Company, Inc. (D.R.I. AUGUST 17, 2017)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com) of Latham & Watkins LLP

On August 17, 2017, the United States District Court for the District of Rhode Island ruled on the second phase of a trial regarding the Centredale Manor Restoration Project Superfund Site (the “Site”) in North Providence, Rhode Island, which is contaminated with, among other contaminants, dioxin. See http://www.rid.uscourts.gov/menu/judges/opinions/recent/08172017_1-11CV23S_Emhart_v_EPA_P.pdf. Having found Emhart Industries (“Emhart”) jointly and severally liable for the contamination at the Site in the first phase of the trial, the Court turned to (1) whether the United States Environmental Protection Agency’s (“EPA”) remedy selection process was arbitrary, capricious, or otherwise not in accordance with law; and (2) whether Emhart had “sufficient cause” within the meaning of Section 106(b)(1) to refuse to comply with EPA’s June 10, 2014 Unilateral Administrative Order (“UAO”) that Emhart perform the remedial design, remedial action, and operation and maintenance for the selected remedy. Id. at 2.

CERCLA “Pre-enforcement Review” Defense to State Claim for Medical Monitoring
By Donald D. Anderson (danderson@oag.state.va.us ) of Office of the Attorney General of Virginia

In Giovanni v. U.S. Dep’t of the Navy, 2017 U.S. Dist. Lexis 104074 (E.D. Pa. July 6, 2017), the Navy successfully invoked the “timing of review” provisions of CERCLA to obtain dismissal of a state law claim for medical monitoring.

City of Spokane v. Monsanto Co., No. 15-201, 2017 WL 2945729 (E.D.Wash. July 10, 2017)
By Meline G. MacCurdy (mmaccurdy@martenlaw.com), Marten Law

In City of Spokane v. Monsanto Co., No. 15-201, 2017 WL 2945729 (E.D.Wash. July 10, 2017), the Eastern District of Washington issued a ruling regarding the nature of response costs that a party must incur to give rise to a cost recovery claim under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The decision also addressed the viability of non-CERCLA claims, such as the Clean Water Act (“CWA”) and common law theories.

Lessees Not Liable As Owners Under CERCLA
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com) of Latham & Watkins LLP

On May 11, 2017, the United States Court of Appeals for the Second Circuit upheld the Eastern District of New York’s decision to dismiss CERCLA cost recovery and contribution claims brought by Next Millenium Realty, LLC and 101 Frost Street Associates (collectively, “Plaintiffs”) against prior owners and operators (collectively, “Defendants”) of 89 Frost Street, Westbury, New York (the “Site”). See Next Millenium Realty, LLC v. Adchem Corp., No. 16-1260-CV, 2017 WL 1958696 (2d Cir. 2017), available at https://www.courtlistener.com/opinion/4390503/next-millenium-realty-llc-v-adchem-corp/.

Properly Performed CERCLA Consent Decree Bars Lawsuit Alleging Property Damage From Clean-Up
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On May 19, 2017, the United States District Court for the Northern District of New York granted Honeywell International, Inc.’s (“Honeywell”) motion to dismiss Plaintiffs’ Amended Complaint based on CERCLA preemption. Bartlett v. Honeywell Int'l, Inc., (N.D.N.Y. May 19, 2017), available here. Plaintiffs, a group of residents that own property adjacent to a property Honeywell used to store and treat dredged sediment from the Onondaga Lake Bottom Superfund Site (the “Sediment Contamination Area” or “SCA”), asserted New York common law claims against Honeywell contending that Honeywell’s use of the SCA caused Plaintiffs property damages.

North Carolina Court of Appeals Rules that Post-Closure Care Results in Operator Liability Under CERCLA and Other Statutes
By Julia Jorgensen

On April 18, 2017, the North Carolina Court of Appeals affirmed the lower court’s decision in WASCO LLC v. N.C. Department of Environment and Natural Resources, Case No. COA16-414, finding that WASCO was an operator of a landfill for the purposes of the State’s post-closure permitting requirement and thus responsible for post-closure cleanup efforts at the site.

New York v. General Electric Company (N.D.N.Y. Mar. 31, 2017)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On March 31, 2017, the United States District Court for the Northern District of New York ruled on competing motions for summary judgment filed by the General Electric Company (“GE”) and the New York State Department of Environmental Conservation (“the State”) in a suit regarding the release of hazardous substances at 51 and 53 Luzerne Road, Queensbury, New York. See State of New York v. General Electric Company, No. 1:14-CV-747 (CFH) (N.D.N.Y. Mar. 31, 2017), available at http://www.leagle.com/decision/In%20FDCO%2020170404D52/
STATE%20v.%20GENERAL%20ELECTRIC%20COMPANY
. The State initiated the CERCLA action against GE in 2014, seeking recovery for the costs incurred in connection with the State’s clean-up of polychlorinated biphenyls (“PCBs”) at 51 and 53 Luzerne Road. The State contended that, from 1952 to 1965, GE arranged for the disposal of scrap capacitors at 53 Luzerne Road, and that together, 51 and 53 Luzerne Road were a single facility under CERCLA. GE moved for summary judgment, in part on the grounds that the statute of limitations had expired. The State also moved for summary judgment on whether GE was liable as an arranger under CERCLA. The Court dismissed GE’s motion with respect to the State’s CERCLA action, concluding that the State’s early activities to swiftly mitigate groundwater contamination were “removal” activities, not time-barred “remedial” actions, and that there remained disputed issues of material fact as to whether GE “intended” to dispose and whether GE “arranged” for the disposal of hazardous substances (and thus, the State’s motion was denied). The Court further determined that the State could not consider 51 and 53 Luzerne as a single “facility” under the statute.

BRG Harrison Lofts Urban Renewal LLC v. General Electric Company (D.N.J. Apr. 3, 2017)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On April 3, 2017, the United States District Court for the District of New Jersey ruled on General Electric Company’s (“GE”) motion to dismiss statutory and common law claims, including CERCLA claims, brought by BRG Harrison Lofts Urban Renewal LLC (“BRG”) seeking recovery of BRG’s alleged costs to address mercury contamination within buildings owned by BRG in Harrison, New Jersey. See BRG Harrison Lofts Urban Renewal LLC v. General Electric Co., Civ. A. No. 16-6577 (SRC) (D.N.J. Apr. 3, 2017), available at http://law.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2016cv06577/338908/49/. The Court denied GE’s motion to dismiss, holding that the relevant contract was ambiguous and the parties must conduct discovery regarding its meaning.

Arnold v. United States Pipe & Foundry Company, LLC, 2017 WL 1196883 (N.D. Ala. Mar. 31, 2017)
By Kyle Williams (KWilliams@brunini.com), Brunini

On March 31, 2017, the United States District Court for the Northern District of Alabama, in Arnold v. United States Pipe & Foundry Company, LLC, 2017 WL 1196883 (N.D. Ala. Mar. 31, 2017), granted defendants’, operators of a pipe–making facility, motion for summary judgment in a personal injury matter allegedly related to Defendants’ release of chemical contaminants. This motion hinged on whether the limitations period for plaintiff’s claim would be governed by Alabama’s personal injury law or CERCLA’s federally required commencement date.

NL INDUSTRIES v. STATE (N.J. S. CT. MARCH 27, 2017)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On March 27, 2017, the New Jersey Supreme Court ruled that the State of New Jersey cannot be held liable under the New Jersey Spill Compensation and Control Act (“Spill Act”) for discharges of hazardous substances that occurred before the Spill Act’s enactment in 1977. See https://www.judiciary.state.nj.us/opinions/supreme/a_44_15.pdf. In January 2014, the United States Environmental Protection Agency demanded that NL Industries (“NL”), which operated a facility in Perth Amboy, New Jersey, remediate the Laurence Harbor shoreline, a part of Raritan Bay, that was adjacent to the former NL facility. On February 28, 2014, NL filed a contribution claim against the State, alleging that the State caused or contributed to the Raritan Bay contamination in its roles as regulator and riparian landowner prior to 1976. The State filed a motion to dismiss NL’s contribution claim, which was denied by the trial court and affirmed by the appellate division. The State appealed to the New Jersey Supreme Court.

Waterkeeper Alliance v. Environmental Protection Agency (D.C. Cir. Apr. 11, 2017)
By Emerson Hilton (ehilton@riddellwilliams.com), Riddell Williams P.S., Seattle, WA

In Waterkeeper Alliance v. Environmental Protection Agency, __ F.3d __, No. 09-1017, 2017 WL 1323525 (D.C. Cir. Apr. 11, 2017), the Court of Appeals for the D.C. Circuit vacated a 2008 EPA rule that exempted most farms from reporting and disclosure requirements for animal waste-related “air releases” under CERCLA and EPCRA.

Court Rejects Monitored Natural Attenuation As “Do Nothing” Approach
By Julia H. Jorgensen

On March 23, 2017, the U.S. District Court for the Eastern District of Virginia held in Sierra Club v. Virginia Electric and Power Co. d/b/a Dominion Viginia Power, Case No. 2:15-cv-00112-JAG-RJK, that a utility’s discharge of arsenic to groundwater violates the Clean Water Act (“CWA”) but did not merit the civil penalties or injunctive relief sought by the plaintiff.

TOWN OF ISLIP v. THOMAS DATRE, JR., ET AL. (E.D.N.Y. March 28, 2017)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On March 28, 2017, the United States District Court for the Eastern District of New York dismissed CERCLA claims asserted by the Town of Islip (“the Town”) against COD Services Corp. (“COD”) and IEV Trucking Corp. (“IEV”). See Town of Islip v. Datre, No. 16-CV-2156(E.D.N.Y. 2017), available at https://ecf.nyed.uscourts.gov/doc1/123112918065. The Town alleged that COD and IEV arranged for the disposal of hazardous substances at the Roberto Clemente Park in Brentwood, New York (the “Site”) between 2013 and 2014. Specifically, the Town alleged that COD and IEV paid other defendants to pick up fill, concrete and demolition debris, and other material, which was then transported to the Site for disposal. Subsequent testing of the material at the Site detected hazardous substances, including asbestos, pesticides, and heavy metals. In response, the Town removed the material from the Site at a cost of approximately $4 million. The Town then sought cost recovery from COD, IEV, and other defendants under CERCLA (as well as asserting other causes of action). COD and IEV filed motions to dismiss contending that they could not be “arrangers” under CERCLA because the Town did not plead sufficient facts that they knew the material transported to the Park (1) was hazardous or (2) was meant for disposal at the Park.

Blankenship v. Consolidation Coal Co.
By Donald D. Anderson (DAnderson@oag.state.va.us), Office of the Virginia Attorney General

Blankenship v. Consolidation Coal Co., 2017 U.S. App. LEXIS 4168 (4th Cir. Mar. 9, 2017). The Fourth Circuit held that the federally required commencement date in CERCLA § 309, 42 U.S.C. § 9658, does not preempt Virginia’s statute of limitations for common law tort claims because the plaintiffs failed to allege facts that give rise to a CERCLA claim.

Matejek v. Watson
By Stephen D. Daly (sdaly@mankogold.com), Manko, Gold, Katcher & Fox LLP

Matejek v. Watson et al., Dkt. No. A-4683-14T1 (N.J. Super. Ct. Mar. 3, 2017). Earlier this month, New Jersey’s Appellate Division affirmed a judgment issued by the Chancery Division, the state’s court of equity, which required neighbors to participate and share in the costs of investigating nearby contamination even though there was not yet any evidence as to the precise source of the contamination. In doing so, the Appellate Division adopted an expansive view of the Chancery Division’s power to fashion an equitable remedy when the letter of the law, in this case New Jersey’s Spill Compensation and Control Act (Spill Act), does not provide for one.

Asarco, LLC v. Noranda Mining, Inc.
By Stephen Smithson (ssmithson@swlaw.com), Snell & Wilmer, L.L.P.

Asarco, LLC v. Noranda Mining, Inc., No. 16-4045 (10th Cir. Jan. 3, 2017), reversed and remanded Asarco, LLC v. Noranda Mining, Inc., 2016 WL 1317493 (D. Utah Mar. 31, 2016). In doing so, the Tenth Circuit revived Asarco’s CERCLA contribution claims against Noranda Mining, despite Noranda Mining’s argument that Asarco was judicially estopped from asserting those claims due to Asarco’s prior representations in bankruptcy court.

United States and Commonwealth of Virginia, Secretary of Natural Resources v. E.I. du Pont de Nemours and Co.(W.D. Va. Dec. 15, 2016) (Civil Action No. 5:16-CV-00082)
By Julia H. Jorgensen, Esq. (julia_jorgensen@csx.com), CSX Transportation, Inc.

On December 15, 2016, the U.S. Department of Justice lodged a proposed Consent Decree with the United States District Court for the Western District of Virginia in a natural resource damages action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Clean Water Act (CWA) and the Virginia State Water Control Law (SWCL). The consent decree resolves claims against E.I. du Pont de Nemours and Company (DuPont) for its alleged discharges of mercury to the Shenandoah River system from a former acetate fiber manufacturing facility in Waynesboro, Virginia.

EPA Proposes Superfund Financial Assurance Rules Pursuant to Court Order
By Russell Randle (russell.randle@squirepb.com) and Carolyn McIntosh (carolyn.mcintosh@squirepb.com), Squire Patton Boggs, LLP

On December 1, 2016, the EPA Administrator, acting pursuant to court order, signed proposed rules requiring many facilities in the hard rock mining and processing industry to post financial assurance for superfund response costs and natural resource damages associated with such activities. A 450 page long pre-publication version of the rule is available for review at: https://www.epa.gov/superfund/superfund-financial-responsibility. Under the court mandate, final rules must be adopted December 1, 2017.

Wilson Road Development Corp. v. Fronabarger Concreters, Inc. (E.D. Mo. Sept. 16, 2016)
By David R. Erickson (derickson@shb.com) and Kenneth M. Cochran (kcochran@shb.com), Shook, Hardy & Bacon L.L.P.

In Wilson Road Dev. Corp. v. Fronabarger Concreters, Inc., Case No. 1:11-Cv-84-CEJ (E.D. Mo. Sept. 16, 2016), the Court addressed the right of a private party to seek cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107(a), 42 U.S.C.A. § 9607(a) as to the past and future costs associated with environmental cleanup on its land. Plaintiffs’ CERCLA claims failed as a matter of law because Plaintiffs’ efforts failed two required elements: they were not necessary or compliant with the National Contingency Plan (NCP).

UNITED STATES v. BOSTON & MAINE CORP. (D. Mass. Sept. 22, 2016)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On September 22, 2016, the United States District Court for the District of Massachusetts ruled on the United States’ and Boston & Maine Corporation’s (“B&M”) competing motions for summary judgment based on the statute of limitations for response costs incurred by the United States in connection with a six-acre plot of land (the “Roundhouse”) and an adjacent pond (the “Plow Shop Pond”) at the Fort Devens Superfund site in Massachusetts (“Fort Devens”). See United States v. Boston & Me. Corp., Civil Action No. 13-10087-IT, 2016 U.S. Dist. LEXIS 129726 (D. Mass. Sept. 22, 2016). In 2013, the United States asserted a CERCLA cost recovery action against B&M, the predecessor of which owned and operated at the Roundhouse from approximately 1900 until 1935. The key issue was when a removal action is complete.

USEPA Issues ROD Amendment for Impacted Sediments (Posted 10/25/2016)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On September 27, 2016, the United States Environmental Protection Agency (“USEPA”) issued a Record of Decision Amendment (“ROD Amendment”) for the Vineland Chemical Company Superfund Site in Vineland, New Jersey (the “Site”) specifically to address sediments and soils in the Blackwater Branch floodplain that have been recontaminated from groundwater.

LCCS Group v. A. N. Webber Logistics (Posted 10/21/2016)
By Gregory J. DeGulis, Esq., McMahon DeGulis LLP

In LCCS Group v. A.N. Webber Logistics, Inc., Case No. 16-C-5827 (N.D. Ill.), Judge Amy J. St. Eve of the Northern District of Illinois analyzed successor liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) concerning a facility known as the Lake Calumet Cluster Site in Chicago. In this case, LCCS Group alleged that Si-Tech is the successor to Reliable Liquid Control Corporation (Reliable Liquid) and Reliable Oil Company (Reliable Oil) which were in the business of liquid waste hauling. LCCS Group alleged that Reliable Liquid and Reliable Oil had arranged for disposal of hazardous substances at the LCCS Site. The Reliable companies filed a 12(b)(6) motion to dismiss.

New Jersey Court Applies Laches to Bar Spill Act Contribution Claim (Posted 10/17/2016)
By Diana A. Silva, Esq., Manko, Gold, Katcher & Fox, LLP

Earlier this month, for the first time a New Jersey trial court applied the often pled, but seldom effective, laches defense to bar a private-party claim for contribution under the New Jersey Spill Compensation and Control Act (the “Spill Act”). Laches is an equitable principle that can be used to defend a claim that has become too “stale” by the plaintiff’s unreasonable delay in pursuing the claim, and where the defendant has suffered some harm from the delay. Laches can bar a claim even if the plaintiff initiates the lawsuit within the applicable statute of limitations, or where no statute of limitations exists – such is the case for private party contribution claims under the Spill Act, which last year the New Jersey Supreme Court affirmed in Morristown Assoc. v. Grant Oil Co., 220 N.J. 360 (2015) are not subject to any statute of limitations. In light of the Morristown decision, private claims for contribution under the Spill Act could therefore be brought decades after the discovery of contamination at a site.

District Court Rules That A Current Owner's CERCLA Liability Does Not Extend Back To The Future (Posted 09/09/2016)
By Suzanne Ilene (Shoshana) Schiller, Manko, Gold, Katcher & Fox, LLP

In a case of first impression in the Third Circuit, the Honorable Eduardo C. Robreno has held that the Pennsylvania Department of Environmental Protection (“PADEP”) may not, under CERCLA, recover costs from current landowners if the costs were incurred prior to the owner's purchase of contaminated property. In PADEP v. Trainer Custom Chemical LLC, No. 15-1232 (E.D. Pa. Aug. 30, 2016), PADEP sought to recover, among other things, the amount of electricity bills which it had paid to keep certain remediation equipment operating at the Stoney Creek Technologies Superfund Site (the “Site”), which Site was subsequently purchased by the defendant, Trainer Custom Chemical, LLC (“Trainer”). PADEP's claim for such costs was rejected by Judge Robreno, who held that “a new owner is not liable for recovery costs incurred before he took ownership of the facility.”

Increasing Penalty Amounts for CERCLA Violations (Posted 08/11/2016)
By Jonathan E. Rinde and Zachary J. Koslap, Manko, Gold, Katcher & Fox, LLP

Civil monetary penalties for violations of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) increased on August 1, 2016 pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act (the “Inflation Adjustment Act”). The Inflation Adjustment Act seeks to bring civil monetary penalties in line with current rates of inflation, mandating a “catch-up” adjustment in which penalties will be increased—sometimes dramatically—in accordance with a published formula. Certain violations of CERCLA, which previously carried maximum fines ranging from $37,500 to $117,500, now carry maximum fines ranging from $53,907 to $161,721.

Pakootas v. Teck Cominco Metals, Ltd. (Posted 08/11/2016)
By Meline G. MacCurdy, Marten Law

On July 27, 2016, the Ninth Circuit Court of Appeals held that a Canadian mining company on the border of Washington State is not liable as an “arranger” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for aerial emissions of hazardous substances from its smelter. According to the Ninth Circuit, the term “disposal” as used in CERCLA’s “arranger” category of liable parties does not include “the gradual spread of contaminants without human intervention.”

Peterborough Oil Company, LLC vs. Department of Environmental Protection (Posted 07/12/2016)
(Supreme Judicial Court of Massachusetts, June 6, 2016)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

After a spill of hazardous materials within a specified radius of a public water supply, the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (the “Act”) and Massachusetts Department of Environmental Protection (“DEP”) regulations require that those deemed to be responsible undertake cleanup and monitoring actions to ensure that the spill does not pose a danger to that water supply. In 2007, DEP promulgated an exemption from these requirements for “oil” contamination. In this case, the question before the Supreme Judicial Court of Massachusetts(“SJC”) was whether “oil” included all forms of gasoline.

Next Millennium Realty, L.L.C. v. Adchem Corp. (Posted 05/03/2016)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On March 23, 2016, the United States District Court for the Eastern District of New York held in a CERCLA action that a dissolved corporation that has wound up its affairs lacks the capacity to be sued. Plaintiffs, the current owner of property on Long Island, asserted that Lincoln Processing Corp. (“Lincoln”), a bonding and laminating company that operated at the property from 1966 through 1973, was liable for response costs associated with perchloroethylene (“PCE”) contamination at the property. Lincoln was dissolved in 1977 or 1978 and alleged that the wind-up process was completed by 1979; Plaintiffs filed their CERCLA claim against Lincoln in 2003.

Garrett Day LLC, et al. v. International Paper Co., et al. (Posted 04/22/2016)
By Greg DeGulis (gdegulis@mdllp.net), McMahon DeGulis LLP

Judge Rice’s most recent opinion granted Motions to Dismiss against Plaintiffs Garrett Day LLC and Ohio Development Services Agency (hereafter, “Garrett”). While several inadequacies were addressed, one was sufficient to prompt Judge Rice to dismiss all of Garrett’s CERCLA claims against the Defendants.

Pennsylvania District Court Addresses Several Key Issues in Litigation of CERCLA Contribution Claims & Allocation of Response Costs (Posted 04/22/2016)
By Kate Campbell, Esq. (KCampbell@mankogold.com), Manko, Gold, Katcher & Fox, LLP

The U.S. District Court for the Western District of Pennsylvania issued a lengthy allocation opinion last month that addresses a number of key issues that frequently arise in litigation of CERCLA contribution actions.

DMJ Assocs. v. Capasso (Posted 04/19/2016)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On March 31, 2016, the Eastern District of New York held that a terminated administrative consent order with the New York State Department of Environmental Conservation (“NYSDEC”) does not “resolve” a party’s CERCLA liability, and therefore does not trigger a party’s right to assert a Section 113 contribution claim (leaving that party with an ability to assert a Section 107 cost recovery claim). See https://cases.justia.com/federal/district-courts/new-york/nyedce/1:1997cv07285/159733/1608/0.pdf?ts=1459600189.

Power Test Realty Co. v. Coit (Posted 03/21/2016)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On March 4, 2016, the Rhode Island Supreme Court held that under the Rhode Island Oil Pollution Control Act (“OPCA”) a landowner may be liable for passive migration of petroleum contamination, even if it is not the cause of the petroleum discharge. See https://www.courts.ri.gov/Courts/SupremeCourt/SupremeOpinions/13-76.pdf.

Case Summary: Garrett Day LLC, et al. v. International Paper Co., et al. (Posted 03/09/2016)
By Greg DeGulis (gdegulis@mdllp.net), McMahon DeGulis LLP

Plaintiffs Garrett Day LLC and Ohio Development Services Agency ( hereafter, “Garrett”) seeks to recover over $1.7 million dollars under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607(a) and 9613(f) and the Ohio Voluntary Action Program (“VAP”) for the remediation of a former paper mill site in Dayton, Ohio (hereafter, the “Site”). One of the defendants, Badger Paper Mills, Inc. (“Badger Paper Mills”) and its alleged successor-in-interest, BPM Paper, Inc. (“BPM”) operated a paper mill on the Site from 1992 to 1993 before the company dissolved in 2010. Garrett asserts BPM is the successor corporation of Badger Paper Mills and therefore, is liable for cost recovery under CERCLA. See Flaugher v. Cone Auto Machine, 30 Ohio St. 3d at 62 (Ohio 1993).

Cost of Bottled Water Insufficient to Maintain CERCLA Cost Recovery Claim Where Filter System Reduced Contaminants in Groundwater to Below Applicable Standards (Posted 2/25/2016)
By Kate Campbell, Esq., Manko, Gold, Katcher & Fox, LLP

On January 19, 2016, the U.S. District Court for the Eastern District of Pennsylvania dismissed at the pleadings stage a lawsuit filed by two homeowners whose groundwater was impacted by TCE that allegedly migrated from an adjacent Superfund site. The plaintiffs filed claims against the current and former owners of the Superfund site under CERCLA and RCRA, and also asserted various state law claims.

New York v. Next Millennium Realty (Posted 2/19/2016)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On February 9, 2016, the United States District Court for the Eastern District of New York ruled on the State of New York’s and Defendants’ competing motions for summary judgment concerning volatile organic compound contamination at and emanating from the New Cassel Industrial Area in North Hempstead, New York (the “Site”). Seehttp://www.lawandenvironment.com/wp-content/uploads/sites/5/2016/02/Bloomberg-Law-Document-New-York-v.-Next-Millennium-Realty-LLC-No.-06-CV-1133-SJFAYS-2016-BL-35748-E.D.N.Y.-Feb.pdf. The State had asserted both cost recovery and natural resource damages (“NRD”) claims against Defendants under CERCLA.

Divided Eighth Circuit Panel Addresses Scope of Arranger Liability (Posted12/23/2015)
By Eric Weslander, Lathrop & Gage LLP

In its December 10, 2015 decision in U.S. v. Dico, Inc., No. 14-2762, a panel of the Eighth Circuit reversed the U.S. District Court for the Southern District of Iowa’s award of summary judgment in favor of the United States as to the CERCLA arranger liability of Defendant Dico, Inc. The panel upheld the imposition of $1.62 million in penalties against Dico for violation of an EPA order. The action was based on Dico’s sale of buildings containing PCB-contaminated material to a third party, Southern Iowa Mechanical (“SIM”). The buildings, which were located in Des Moines, Iowa, had first come to the attention of U.S. EPA in the mid-1970s because of TCE contamination in the groundwater around them, and were covered under a 1994 EPA order governing their use. After purchasing the buildings in 2007 from a Dico affiliate, SIM tore the buildings down and stored them in an open field where PCB contamination was later found.

Town of Halfmoon v. General Electric Company (N.D.N.Y. May 12, 2015) (Posted 12/22/2015)
By Gary P. Gengel (gary.gengel@lw.com) and Kegan A. Brown (kegan.brown@lw.com), Latham & Watkins LLP

On May 12, 2015, the United States District Court for the Northern District of New York ruled on competing motions for summary judgment on CERCLA and New York statutory and common law claims asserted by the Township of Halfmoon (“Township”), County of Saratoga (“County”), and Saratoga County Water Authority (“SCWA”) (collectively, “Plaintiffs”) against General Electric Company (“GE”) arising from GE’s implementation of the dredging remedy selected by the United States Environmental Protection Agency (“USEPA”) for the Hudson River PCBs Superfund Site (“Hudson River”). See https://www.gpo.gov/fdsys/pkg/USCOURTS-nynd-1_09-cv-00228/pdf/USCOURTS-nynd-1_09-cv-00228-1.pdf. Generally, Plaintiffs claimed that the resuspension of PCBs during remedy implementation caused them to incur costs and damages relating to alternative drinking water sources, which were recoverable from GE under CERCLA, the New York Navigation Law, and common law claims for strict liability, negligence, nuisance, and trespass. Id. at 9.

Valbruna Slater Steel Corporation and Fort Wayne Steel Corporation v. Joslyn Manufacturing Company, et al., 2015 WL 8055999 (N.D.Ind. Dec. 4, 2015). (Posted 12/15/2015)
By Erin M. McDevitt-Frantz, McMahon DeGulis LLP

Following Seventh Circuit precedent, the United States District Court for the Northern District of Indiana concluded that involvement of a public agency in a remediation is sufficient to meet the public participation requirement of the National Contingency Plan (“NCP”). Specifically, the plaintiffs Valbruna Slater Steel Corporation and Fort Wayne Steel Corporation (collectively, “Valbruna”) seek recovery of cleanup costs associated with a steel processing site formerly owned by Joslyn Manufacturing Company (“Joslyn”). After five years of litigation, including resolution of two summary judgment motions filed by Joslyn, the parties filed a round of summary judgment motions on the remaining CERCLA claims.

Court Recognizes U.S. Epa's Ability To Seek Court Order for Access and Remediation (Posted 12/02/2015)
By: Thomas D. Lupo and Dana Mehlman of Hinshaw & Culbertson LLC

In United States of America v. Donna Gearing and Larry Thomason, No. 1:15 CV 01333 (C.D. Ill. 2015), the United States District Court for the Central District of Illinois rejected the magistrate judge's recommendation that the court deny the United States' Motion for Order in Aid of Immediate Access as arbitrary and capricious where U.S. EPA sought to access and remediate a largely burned out former school building which it contended “may” present an imminent and substantial endangerment to the public health, welfare, or the environment. The ruling gives further guidance to those facing a direct court action by the U.S. EPA and likely expands the Agency's ability and frequency of doing so.

District Court in Michigan Determines Consultant Document Privilege Issues (Posted 12/02/2015)
By: Thomas D. Lupo and Dana Mehlman of Hinshaw & Culbertson LLC

In Ford Motor Company v. Michigan Consolidated Gas Company, No. 08 cv 13503 (E.D. Mich. 2015), the United States District Court for the Eastern District of Michigan evaluated Plaintiffs', Ford Motor Company and AK Steel Corp.'s, changes to their previously considered privilege log classifications from attorney work-product to attorney-client privilege protections in support of their common-interest privilege assertions concerning communications with their non-party environmental consultant, CRA.

Third Time is a...Strike Out. NCR Superfund Divisibility Ruling is Reversed (Posted 12/02/2015)
By: Thomas D. Lupo, Hinshaw & Culbertson LLC

On October 19, 2015, in United States v. NCR Corp., Case No. 10-C-00910 (E.D. WI 2015), the United States District Court for the Eastern District of Wisconsin again reversed a prior divisibility ruling, this time reversing its ruling that NCR had established a divisible share for Operable Unit 4 of the Lower Fox River and Green Bay CERCLA Site in northeastern Wisconsin ("Lower Fox River Site"), finding NCR's evidence unreliable upon further consideration. The decision reversed what had been one of the only reported district court decisions to uphold a divisibility defense following the United States Supreme Court's Burlington Northern v. United States, 556 U.S. 599 (2009), decision addressing divisibility under CERCLA.

U.S. District Court in Virginia Holds that CERCLA’s Discovery Rule Applies Only Where There is a Viable CERCLA Claim (Posted 11/16/2015)
By: Kate Campbell, Esq., Manko, Gold, Katcher & Fox, LLP

On October 26, 2015, the U.S. District Court for the Western District of Virginia joined a number of other courts in holding that CERCLA’s discovery rule applies to toll state statutes of limitation only where the plaintiff has a viable (asserted or unasserted) CERCLA claim.

Florida Power Corp. v. FirstEnergy Corp., No. 14-4126, 2015 WL 6743513 (6th Cir. Nov. 5, 2015). (Posted 11/09/2015)
By Erin M. McDevitt-Frantz, efrantz@mdlp.net, McMahon DeGulis LLP

In a split decision, with Justice Suhrheinrich dissenting, the Sixth Circuit Court of Appeals held that two Administrative Orders by Consent (“AOCs”) with the U.S. Environmental Protection Agency (“EPA”) do not constitute “administrative settlements” for purposes of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) §113(f)(3)(B). This matter involves a contribution claim brought by Florida Power Corp. to recover costs it incurred in connection with two AOCs regarding two coal gasification plants in Florida – a 1998 Sanford AOC and a 2003 Orlando AOC. The Sixth Circuit reversed Judge Polster’s ruling in the Northern District of Ohio.

Region 4 Post on Ashley II Litigation (Posted 10/12/2015)
ByDonaldD.Anderson,ddanderson@mcguirewoods.com,McGuireWoodsLLP.

In 2005 a South Carolina developer initiated a cost recovery action under CERCLA against a prior owner and operator of a former fertilizer plant, PCS Nitrogen, Inc., who in turn filed third-party contribution actions against numerous other parties including a prior owner and operator, Ross Development Corporation. The ensuing decade-long litigation has generated a number of significant decisions, including that of the Fourth Circuit imposing joint and several liability and rejecting a bona fide prospective purchaser defense. PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161 (4th Cir. 2013). More recently, the U.S. District Court has issued decisions, after lengthy trials, addressing both fundamental contract law questions and complex corporate law questions.

Feds Not Responsible For Cleanup Costs at San Diego Defense Facility (Posted 10/6/2015)
By Patrick Paul, ppaul@swlaw.com, Snell & Willmer LLP.

The Southern District of California Federal District Court recently held that the federal government was not responsible for cleanup costs associated with the production of military aircraft parts at a 44-acre manufacturing site in San Diego, despite the fact the majority of manufacturing performed onsite was to fulfill government contracts over sixty years of operation. TDY Holdings, LLC v. United States, 2015 U.S. Dist. Lexis 102490 (July 29, 2015). Manufacturing operations at the subject property ceased in 1999 and the associated buildings were eventually demolished and removed. Thereafter, California’s Regional Water Quality Control Board ordered a sitewide investigation of soil, soil gas, and groundwater to identify areas requiring remediation. Although the manufacturer acknowledged its responsibility for the costs incurred to investigate and remediate the property, it sought contribution from the government as “owner of facilities” pursuant to 42 U.S.C. § 9613(f).

Deepwater Horizon Proposed Settlement Terms (Posted 10/5/2015)
By Russ Randle, Chair, ABA Superfund and Natural Resource Damages Litigation Committee

Dear colleagues – Below you will see the fact sheets from the Justice Department about the detailed settlement terms proposed to resolve liability for the Deepwater Horizon disaster to the United States and five Gulf states for penalties and natural resource damages, among other issues. This proposed settlement, if approved, is the largest natural resource damage settlement in U.S. history. It would also resolve claims by the United States for civil penalties arising from the Deepwater Horizon spill.

Rhode Island Court Rejects Divisibility Defenese for 2,3,7,8-TCDD Impacts (Posted 9/28/2015)
By Gary P. Gengel gary.gengel@lw.com and Kegan A. Brown kegan.brown@lw.com Latham & Watkins LLP

On September 17, 2015, a Rhode Island federal court decided that Emhart Industries, Inc. (“Emhart”) is jointly and severally liable under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for all response costs incurred at the Centredale Manor Restoration Project Superfund Site, which includes a 3-mile stretch of the Woonasquatucket River, a number of ponds, and certain upland areas (the “Site”). Emhart Indus. v. New Eng. Cont. Co., No. 06-218, 2015 U.S. Dist. LEXIS 125293 (D.R.I. 2015). In doing so, the Court rejected Emhart’s argument that 2,3,7,8-tetrachlorodibenzo-p-dioxin (“2,3,7,8-TCDD”) – the contaminant driving the remedy at the Site – could be apportioned between Emhart (whose predecessor, Metro Atlantic, manufactured, among other things, hexachlorophene (“HCP”) at the Site) and New England Container Co. (“NECC”), which operated a nearby drum reconditioning business. The evidence showed that both Metro Atlantic’s and NECC’s operations were associated with the generation of 2,3,7,8-TCDD, the most toxic form of dioxin.

Case Summary: The Peoples Gas Light and Coke Company v. Beazer East, Inc. (Posted 9/25/2015)
By Greg DeGulis (gdegulis@mdllp.net) and Erin McDevitt-Frantz (efrantz@mdllp.net) , McMahon DeGulis LLP

The U.S. Court of Appeals for the Seventh Circuit recently affirmed a district court’s holding that a pre-Comprehensive Environmental Response, Compensation & Liability Act (“CERCLA”) agreement barred a contribution claim under CERCLA. In this case, Peoples sought to recover costs incurred in connection with environmental investigation and removal activities associated with a coke plant located in Crawford Station in Chicago, Illinois from Beazer as an operator of the facility during the relevant period. In 1920, Peoples and Beazer’s predecessor, Koppers, entered into an agreement for the financing and construction of the coke plant. The 1920 agreement provided that Koppers’ obligation to operate the coke plant was “limited to operating or supervising the operation thereof for and in behalf of and in the name of ‘Coke’ without liability of any character on the part of ‘Koppers,’ except as expressly assumed under the terms of this contract” and “the expense of such operation and maintenance or loss incident thereto shall be borne by ‘Coke’ as hereinafter provided.”

EPA Region VII Update (Posted 9/2/2015)
By Eric Weslander, Lathrop & Gage LLP ewaslander@lathropgage.com

U.S. EPA Region VII recently announced cleanup actions that are underway or about to begin at two former industrial sites in Missouri and Kansas.

New Jersey Court Applies CERCLA Criteria to State Law NRD Consent Decree (Posted 8/25/2015)
By Gary P. Gengel gary.gengel@lw.com and Kegan A. Brown kegan.brown@lw.com Latham & Watkins LLP

On August 25, 2015, the Superior Court of New Jersey approved a $225 million consent decree under the New Jersey Spill Compensation and Control Act (“Spill Act”) between the New Jersey Department of Environmental Protection (“NJDEP”) and ExxonMobil Corporation (“Exxon”) for alleged natural resource damages (“NRDs”) attributable to, among other facilities, Exxon’s former refineries in Linden and Bayonne, New Jersey. The consent decree concludes 11 years of litigation between NJDEP and Exxon concerning alleged NRDs for these refineries, including a 66-day NRD trial (no judgment issued) in which NJDEP sought $8.9 billion in damages.

Delay and Disruption from CERCLA Investigation Cause FERC to Rescind Preliminary Permit for Proposed Power Project Located on Superfund Site (Posted 1/22/2015)
By Sherrie A. Armstrong, Crowell & Moring LLP SArmstrong@crowell.com

The Federal Energy Regulatory Commission has rescinded a preliminary permit initially granted to Green River Energy Storage Corp. (“Green Energy”) to study the feasibility of a closed loop pumped storage project because the proposed project area would be located at the Anaconda Mine Superfund Site in Nevada. See Green Energy Storage Corp., 150 FERC P 61042, 2015 WL 285925 (Jan. 22, 2015). EPA took over the 3400-acre Anaconda Mine Superfund Site from the Nevada Division of Environmental Protection in 2005 and is nearing the end of the Remedial Investigation phase. The site is contaminated primarily by elevated levels of heavy metals and radiological compounds released into the soil and water during copper ore extraction. Based on the Commission’s experience with project development at or near Superfund sites, the Commission deemed it unlikely that Green Energy would be able to perform the necessary site-specific studies or take any significant steps toward developing a license application.


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The Superfund and Natural Resource Damages (NRD) Litigation Committee focuses on federal and state law, cases and policy related to Superfund sites and NRD. Issues include assignment of liability, cost allocation, enforcement, and interactions between agencies, trustees and potentially responsible parties. The Committee provides updates on settlement options, litigation techniques, and technical issues of interest to environmental practitioners.

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    The Superfund Manual: A Practitioner's Guide to CERCLA Litigation

    The Superfund Manual: A Practitioner's Guide to CERCLA Litigation

    ISBN: 978-1-63425-261-4, 978-1-63425-262-1 Product Code: 5350254, 5350254EBK 2016, 478 pages Emphasizing the practitioners needs for focused, case-oriented information, this guidebook to CERCLA litigation casts light on the cases and issues that are central to current Superfund litigation. It provides ...

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