May 26, 2021

Supreme Court Reverses D.C. Circuit on Superfund Cost Recovery Statute of Limitations

The Supreme Court has reversed a DC Circuit decision which held that the territory of Guam was time-barred from pursuing a cost recovery action under CERCLA against the U.S. Government to pay its fair share for the clean-up of the Ordot dump.  Guam and the U.S. signed a Consent Decree under the Clean Water Act in 2004 requiring the territory to remediate the former Navy-owned Ordot dump from leaking into adjacent rivers.  Guam later filed a claim under the Federal Superfund law to recoup some of the clean-up cost.  The D.C. Circuit held that the claim was time-barred by CERCLA’s… Read more

Dec 2, 2020

Representative Dingell Will Make Regulation of PFAS Chemicals Top Congressional Priority

forever chemicals

Representative Dingell (D-MICH) said on Tuesday, November 17th that legislation which would require the EPA to regulate the so-called “forever chemicals” will be reintroduced in January as soon as Congress begins its new session.  Dingell was the sponsor of the PFAS Action Act that passed the House last January, and has indicated her intention to reintroduce the bill.  If the bill passes, it would require the EPA to set cleanup standards and enforceable drinking water limits for at least some PFAS chemicals, and would also ban the chemicals from materials that could touch food and cosmetics.  Representatives in Congress will… Read more

Jun 12, 2019

U.S. Supreme Court to Address Important CERCLA Issue

On June 10, 2019, the U.S. Supreme Court announced that it would review a Montana Supreme Court decision that has important implications for cleanup of sites under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA).  In Atlantic Richfield Co. v. Gregory A. Christian, et al., Atlantic Richfield Co. (Arco) is seeking reversal of a Montana Supreme Court decision that allows private residents to sue Arco for cleanup costs and “restoration damages” of EPA-approved remediation that Arco is performing on the residents’ properties under CERCLA. The cleanup relates to the Anaconda Smelter Superfund site.  Arco has spent decades and… Read more

May 8, 2019

Claims Against Caterpillar Can Proceed Despite “Mere Conclusory” Allegations in CERCLA Complaint

Claims against Caterpillar Global Mining LLC survived Caterpillar’s Motion to Dismiss on the ground that the allegations were merely conclusory in a CERCLA cost recovery claim before the U.S. District Court for the Southern District of Indiana. In its May 3 opinion, the Court stated that the information regarding who, what, when, and where, which would be required under a heightened pleading standard, isn’t required at the pleading stage in a Superfund action.  The plaintiff in the case acquired farmland in Richmond, Indiana in 2012, which was part of a larger property that included manufacturing operations.  Hazardous waste, including polychlorinated… Read more

Dec 13, 2017

Federal Circuits Are Split on When a CERCLA Section 113 Contribution Claim Can Be Pursued

Judge and Gavel

The 9th Circuit Court of Appeals recently reinforced a Circuit split on what kind of settlement agreement allows a claimant to pursue a contribution claim against other PRPs under Section 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In Asarco v. Atlantic Ritchfield, (9th Cir. 8/10/17), the Court held that Congress did not intend to limit Section 113(f)(3)(B) contribution actions to the recovery of costs incurred in response actions under CERCLA settlements. Non-CERCLA settlements, such as for implementation of corrective measures under the Resource Conservation and Recovery Act (RCRA), may provide the necessary predicate for a CERCLA… Read more

Aug 28, 2017

EPA Proposes Revisions to Environmental Site Assessments for Timber Property

Tractor hauling timber on forestland property

On June 20, 2017, EPA published notice of its intent to take direct final action to amend the Standards and Practices for All Appropriate Inquiries (“AAI”) to reference ASTM International’s recently revised E2247-16, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property, and allow for its use to satisfy the statutory requirements for conducting AAI under CERCLA.  The proposed amendment would update and replace the current reference to the 2008 ASTM Standard, E2247-08, in the AAI rule found in 40 CFR 312.  The new rule was to become effective on September 18,… Read more

Jul 27, 2017

U.S. Government Liable Under CERCLA as Owner for Mining Patent Leases in $1 Billion Environmental Clean-Up

Mining equipment

On July 19th, the Tenth Circuit determined that the U.S. government is liable for environmental contamination at a mining site operated by Chevron and other mining entities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq. Chevron Mining Inc. v. United States, No. 15-2209, 2017 WL 3045887, at *1 (10th Cir. July 19, 2017). Anticipated cleanup costs exceed $1 billion. Under the 1872 General Mining Act, 30 U.S.C. § 22, the U.S. government holds legal title and mining patents or claims are filed to specific portions of federal property. The 10th… Read more

Mar 15, 2017

Company That Settled CERCLA Liability in Bankruptcy Can Pursue Contribution Claim

Bankruptcy Law & Judicial Estoppel

In January, the U.S. Court of Appeals for the 10th Circuit reversed a District Court’s ruling that a company that settled its CERCLA liability with the federal government in a bankruptcy proceeding was barred from seeking contribution against another PRP.  Instead, the 10th Circuit ruled in Asarco v. Noranda Mining, Inc., No. 16-4045 (10th Cir. 1/3/17), that Asarco is allowed to pursue a claim against another PRP for contribution for amounts Asarco overpaid in its settlement with EPA. Asarco filed for Chapter 11 bankruptcy in 2005.  In 2009, a global settlement agreement with EPA under which Asarco paid $1.79 billion… Read more

May 23, 2016

Contribution Claims Under CERCLA Limited where Party Seeking Contribution has Settled with Federal Government

A federal court in the Eastern District of Wisconsin has held that a party entering into an agreement with the federal government to settle a claim for liability under the Superfund law may only pursue a contribution claim for payments that were made under the agreement. Under the Superfund law, defendants face joint and several liability, while contribution claims are limited to a defendant’s equitable share of the cost of the remediation at the site. The plaintiff in this case, Appvion, Inc., filed a claim against the U.S. Army Corp of Engineers stating that its dredging activity exacerbated the contamination… Read more

Sep 22, 2015

Federal Appellate Court to Review CERCLA Air Emissions Case

The U.S. Court of Appeals for the Ninth Circuit recently agreed to allow an interlocutory appeal of a novel air emissions case under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The Ninth Court of Appeals will review a decision from the U.S. District Court for the Eastern District of Washington in the case of Joseph Pakootas, et al. v. Teck Cominco Metals. In denying the defendant smelter’s motion to dismiss, the district court concluded that air emissions from a lead/zinc smelter in Canada, which were transported by wind and deposited at a CERCLA site in the State… Read more