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
The interplay of two remedies for recovery by Potentially Responsible Parties (PRPs) of their cleanup costs at contaminated sites has been a lively topic of debate ever since Congress added Section 113(f) in 1986, clarifying the right of parties held jointly and severally liable for cleanup costs to seek recovery of a share of those costs from other PRPs who had not contributed toward cleanup. In 2007, the Supreme Court in United States v. Atlantic Research Corp. held that both Section 113 contribution claims and the pre-existing remedy under Section 107 for cost recovery were available to PRPs, depending on… Read more
A federal district court in Missouri has ruled that a common law claim for unjust enrichments cannot proceed simultaneously with a superfund contribution claim under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In so ruling, the Eighth Circuit has joined the Second and Third Circuits in finding such claims preempted. The court reasoned that state law claims that sought to circumvent the statutory recovery system established by CERCLA could not proceed simultaneously with an inconsistent scheme established state common law. If you have questions regarding this post, please contact Phillip Hoover.
In a case of first impression regarding brownfield developer liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), the Fourth Circuit Court of Appeals on April 4 decided the issue of whether a current owner of a hazardous waste site can escape liability as a Bona Fide Prospective Purchaser (BFPP) under Brownfield redevelopment legislation enacted by Congress in 2002. Specifically, the opinion in PCS Nitrogen Inc. v. Ashley II of Charleston LLC LP, Nos. 11-1662, 11-2087, 11-2099, 11-2104 and 11-2297 (4th Cir. April 4, 2013), interpreted the requirement that, in order to escape liability as a… Read more
In 2009, the U.S. Supreme Court issued a decision in the consolidated cases of Shell Oil v. U.S. and Burlington Northern and Santa Fe Railway Co. v. U.S. (“Shell Oil“) that narrowed the scope of “arranger” liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). That decision reversed a lower court decision that had found Shell Oil Company liable for “arranging for disposal” of a hazardous substance because it shipped hazardous substances under conditions that it knew would result in a portion of the substances being spilled by the purchaser or the common carrier. Last month, the 5th… Read more
EPA sent a letter to Congress today in support of reinstating the lapsed Superfund “polluter pays” taxes.