Superfund and Natural Resource Damages Litigation Committee
Highlights
Posted April 24, 2004
Update on Aviall Services, Inc. v. Cooper Industries CERCLA case that is now pending before the US Supreme Court:
For over 25 years, the parties to contribution actions under CERCLA have operated under settled expectations based upon a common understanding of CERCLA's contribution standards. Cooper seeks to have the Supreme Court reverse this scheme and preclude parties from seeking contribution in the absence of federal enforcement proceedings or a prior federal lawsuit by another party. According to Cooper, cleanups costs incurred at the instance of state environmental authorities or under voluntary cleanup programs established under state law cannot be recovered under CERCLA's contribution or cost recovery provisions. Although Cooper would entrust recovery of such costs to state law, there is no consistent and established body of state law that guarantees the right to pursue such recoveries. Indeed, as Aviall points out in its brief, some states do not have any laws that allow such actions. Attached are certain briefs, including amicus curiae briefs. It is worth noting that the amici opposing Cooper comprise virtually all of the types of persons who may be PRPs seeking and defending against contribution claims under CERCLA -- with the notable exception of the US govt. Companies who regularly find themselves sued for contribution under CERCLA - who might be expected to line up with Cooper's position -- have filed briefs that strongly disagree with Cooper. State attorney generals, the advocates to whom Cooper would defer to seek enforcement and contribution under state law, have also opposed Cooper's arguments. Finally, numerous trade associations and environmental organizations --organizations which regularly disagree on environmental issues -- have joined the other amici to urge the Supreme Court to reject Cooper's novel arguments. Cooper has one amicus brief filed in support of its position, by the United States. Also of interest is that the US appears to have changed its position from past filings on this issue in other cases.
Related documents:
Aviall-Merits Brief of Respondent
Posted March 2, 2004
On March 2, the US Court of Appeals for the DC Circuit filed a per curiam opinion in GE v. EPA, et al. The DC Circuit reversed the District Court's dismissal of GE's challenge alleging that the administrative orders regime under Sections 106, 107(c)(3) and 113(h) of CERCLA violate the Due Process Clause of the Fifth Amendment. The District Court had dismissed for lack of subject matter jurisdiction under Section 113(h). The Circuit Court held that the plain text of Section 113(h) does not bar GE's facial constitutional challenge and remanded the case to the district court. The Circuit found that the bar in Section 113(h) is limited to divesting the district court of jurisdiction to review challenges to removal or remedial actions selected under Section 104 or orders issued under 106(a) only. See .pdf attachment.
Posted February 20, 2004
PDF # 1 - (Transcript) Transcript of an oral decision rendered on January 9, 2004, and subsequent Order, entered by the Honorable Jack Sabatino in a case pending in the New Jersey Superior Court, entitled New Jersey Department of Environmental Protection, et al., v. ExxonMobil, et al., Civil Action No. MER-L-2933-02. This is the only pending suit in a New Jersey state court of which we are aware in which the NJDEP is attempting to recover Natural Resource Damages ("NRDs") for alleged injuries to groundwater, although the NJDEP has threatened to bring additional claims as part of an aggressive NRD enforcement program.
The suit arises from alleged discharges at three retail gasoline service stations at an intersection in Ewing Township, NJ. The defendants are current and former site owners and/or operators, including ExxonMobil, Atlantic Richfield Company, Sunoco, Inc. (R&M), Consumers Oil Corporation, Delaware Petroleum Company, Inc., and individual dealers. The suit was brought pursuant to the state's Spill Compensation and Control Act, notwithstanding that several parties were actively investigating environmental conditions at their sites, and dispute their liability. Plaintiffs' seek to recover the cost of extending a public water line and NRDs.
In an attempt to bolster plaintiff NJDEP's Spill Act claims, NJDEP moved to strike all of defendants' affirmative and separate defenses - which collectively exceeded 50 in number. In response, defendants pointed to the statute itself, gaps in the legislative history, and case law providing for good cause defenses to a Spill Act Directive, the ability to challenge the State's damages, and the right to raise constitutional challenges and NJ Administrative Procedures Act challenges to the NJDEP's claims and specifically to the NRD claims.
Following extensive argument on January 9, 2004, Judge Sabatino concluded that the Court would only excise a few negligence-based defenses to the plaintiff's claims for recovery of the cost of the water line, and also ruled that the claims were not subject (under the facts of this case) to a statute of limitations defense. However, and crucially, the court rejected the NJDEP's arguments that the defendants were left without any defenses. Instead, the court specifically acknowledged that the defendants retained almost all of their defenses and found that the Spill Act does not limit common law defenses to strict liability, or defenses related to causation, damages, or those arising under the US and NJ Constitution, or the NJ Administrative Procedures Act. The court also preserved the defenses to the NRD claims, and ordered that whether any of the stricken defenses continue to remain applicable to those claims would be ruled upon at a later stage.
Appearances were by Mark D. Oshinskie, Deputy Attorney General, in behalf of Plaintiffs; Phil Cha, Esq. of Archer & Greiner PC in behalf of ExxonMobil Corporation; Lanny S. Kurzweil, Esq., of McCarter & English, LLP, in behalf of Atlantic Richfield Company; Harold L. Segall, Esq., of Beveridge & Diamond, P.C., in behalf of Sunoco, Inc. (R&M); and Thomas Burns, Esq., of Reed Smith, in behalf of Consumers Oil Corporation and Delaware Petroleum.
PDF # 2 and #3 - (Copy of Complaint/Filed Page) On February 9, 2004, the Chemistry Council of NJ and other trade associations, including the NJ Business and Industry Ass'n, NJ Chamber of Commerce, NJ Fuel Merchants Ass'n, and the American Petroleum Institute filed an action in Superior Court, Mercer County, Law Division, against the NJDEP seeking two things: (1) a writ of mandamus compelling the NJDEP to engage in rulemaking with respect to the assessment and quantification of groundwater NRDs, and (2) to set aside the contingency fee agreement between the State of NJ and its Special Outside Counsel, Allan Kanner & Associates. Appearing as lead attorneys for the trade associations are Steven J. Picco and Thomas J. Burns III of Reed Smith, Princeton, NJ
