CERCLA Litigation Tracker: New Year Brings Contribution Claims, Federal Lease Issues

The federal Superfund law celebrates its 37th birthday in 2017 and, according to experienced attorneys tracking the litigation, plenty remains to fight about.

The hazardous waste cleanup law, never a model of clarity, formed the basis for several significant rulings in 2016.

They included a high-profile Ninth Circuit decision on transboundary aerial pollutants from Canada, and another from the D.C. Circuit clarifying how the federal government should be treated relative to other liable parties.

A spate of interesting Superfund cases are on tap for the coming year.

Top among them are another Ninth Circuit case, this one addressing whether a company's settlement of its liability under another federal statute triggers its right to file a Superfund contribution claim.

Another suit to watch in 2017, this one in the Tenth Circuit, is expected to address whether the federal government is responsible for paying for contamination cleanups on federal land leased to mining companies and others.

Look Back: No Aerial Liability, Equal Treatment for Feds

The marquee ruling in 2016 came from the U.S. Court of Appeals for the Ninth Circuit, which held that emissions carried by the wind onto land or water don't constitute “disposal” under the Superfund law, clearing a Canadian smelter of liability.

Attorneys strongly differ on whether the court got it right ( Pakootas, et al v. Teck Cominco Metals, Ltd., 2016 BL 241292, 9th Cir., No. 15-35228 ).

Attorney Peter Hsiao with Morrison and Foerster in Los Angeles said the court properly followed precedent and that air pollution is already controlled under the Clean Air Act and state law through a carefully designed regulatory scheme.

But Professor Craig Johnston at Lewis & Clark Law School in Oregon said the precedent was distinguishable. “Teck was an emitter—it wasn't passive movement. That should be adequate to be disposal,” he said.

In another closely watched case, the D.C. Circuit in August said the federal government's agreement to cover Lockheed Martin Corp.'s cleanup costs wasn't a basis to reduce the government's own share of liability ( Lockheed Martin Corp. v. United States, D.C. Cir., No., 14-cv-5302, 8/19/16 ).

The Lockheed decision means that the government will be treated like any other liable party in Superfund litigation, Prof. Alfred Light at St. Thomas University School of Law in Miami Gardens, Fla. told Bloomberg BNA.

The Ninth Circuit also issued a June decision holding that a company that has been sued under the Superfund law is not limited to a contribution action to recover cleanup costs at a different but related site ( Whittaker Corp. v. United States, 2016 BL 187374, 9th Cir., No. 14-cv-55385, 6/13/16 ).

At the trial court level, in February, the Eastern District of New York ruled that listing a contaminated site on the Superfund National Priorities List many years after the state of New York discovered the contamination revived the state's natural resources damages claim ( New York v. Next Millennium Realty LLC, 2016 BL 35748, E.D.N.Y., No. 06-cv-1133, 2/9/16 ).

And the Eastern District of Missouri, in September, held that the owners of a contaminated site couldn't recover costs under Superfund for testing done to confirm that contamination migrated to their property from a nearby site ( Wilson Rd. Dev. Corp. v. Fronabarger Concreters Inc., 2016 BL 305802, E.D. Mo., No. 11-cv-84, 9/16/16 ).

Look Ahead: Contribution Claims, Federal Lease Liability

In the coming year, federal appeals courts will consider the intersection of the Superfund law and other environmental statutes as they relate to contribution claims, and the extent of the federal government's Superfund liability on federally leased land.

The Ninth Circuit, in February, is slated to consider whether Superfund provides a contribution claim where a party hasn't expressly settled its CERCLA liability—an issue that has divided the Second and Third Circuits.

Many other environmental statutes lack express contribution rights. The ruling, if upheld, would ensure that parties settling under those statutes would have an avenue to pursue cleanup costs from other liable parties.

In another case, the Tenth Circuit is set to decide whether the federal government is liable for contamination on federal land leased to a mining company.

Chevron Corp. argues the government provided engineering services and facilitated mining waste disposed of on federal land. Consequently, it should pay a portion of the contaminated area's cleanup costs.

At the trial court level, the District of South Carolina will consider whether the recipient of a unilateral cleanup order may pursue a cost recovery or contribution action.

Meanwhile, lower courts in Wisconsin and Michigan will consider apportionment and allocation at sediment sites—an issue that has divided courts at the trial and appellate level.

Below is a list of significant Superfund cases pending as of the end of the fourth quarter 2016.

Topic Citation Description Status Latest Story
Contribution Asarco LLC v. Atl. Richfield Co., 9th Cir., No. 14-35723 Appeal from ruling that a consent decree for RCRA and CWA violations also triggers CERCLA statute of limitations for a contribution action. Set for oral argument 2/8/17. Recent Superfund Decision Expands Option of Contribution to Non-CERCLA Settlements (29 TXLR 773, 9/4/14)
  Chevron Mining v. United States 10th Cir., No. 15-02209 Chevron Mining, which held mining rights on federal land, seeks to hold the U.S. liable as an owner for mining contamination and as an arranger for “facilitating” mining waste disposal. Oral argument held 11/14/16. Chevron Mining to Pay $4M to Restore Natural Resources at New Mexico Mine (29 TXLR 800, 9/11/14)
  New York v. Gen. Elec. Co., N.D.N.Y., No. 14-cv-00747 GE countersuit against New York for cleanup of PCBs allegedly released by the state's removal methods at scrap yards. New York's sovereign immunity defense ruled inapplicable, liability trial pending. Pretrial motions pending. Court Allows GE Superfund Claims Against N.Y. (30 TXLR 978, 10/8/15)
  PCS Nitrogen Inc. v. Ross Dev. Corp., D.S.C., No. 14-cv-04252 Contribution lawsuit over supplemental remediation ordered by the EPA; enforcement order held equivalent to civil action for contribution purposes. Summary judgment motions pending.The proceedings are stayed as to defendant Ashley II of Charleston, LLC pending conclusion of bankruptcy proceedings. Enforcement Order Equivalent of Civil Action Limits Party to Superfund Contribution Claim (30 TXLR 491, 5/14/15)
  Asarco LLC v. Noranda Mining, Inc., 10th Cir., No. 16-04045 Asarco appeals dismissal of contribution claim against Noranda Mining. Trial court found in March 2015 that Asarco didn't establish it paid more than its fair share of response costs. Oral argument held 11/16/16. Asarco Brief Challenges Superfund Ruling in Tenth Circuit (31 TXLR 541, 6/9/16)
Cost Recovery White Plains Housing Auth. v. Getty Properties Corp., S.D.N.Y., No. 13-cv-06282 Cost recovery suit over benzene plume barred by CERCLA petroleum exclusion; RCRA claim allowed to proceed. Discovery and depositions ongoing. Status conference set for 4/28/17 Petroleum Exclusion Covers Oil Components, Includes Benzene Released as Gas Degrades (30 TXLR 16, 1/1/15)
Apportionment & Allocation Appvion, Inc. v. P. H. Glatfelter Co., E.D. Wis., No. 08-cv-16 Lawsuits over apportionment of liability for cleanup costs for PCB contamination at the Lower Fox River Superfund Site. Trial on allocation among NCR, Georgia-Pacific, and Glatfelter set for 3/27/17. Kimberly-Clark Settlement Doesn't Bar Claim, Appvion Says (31 TXLR 576, 6/16/16)
  ExxonMobil Corp. v. United States, S.D. Tex., No. 10-cv-02386 Litigation involving division of cleanup costs between the federal government and ExxonMobil for adjoining World War II-era industrial sites. Operator liability found for both parties for each site Trial over allocation of costs pending. Discovery ongoing. ExxonMobil, U.S, to Share Superfund Costs for WWII Factory Waste; Allocation Deferred (30 TXLR 576, 6/11/15)
  AmeriPride Serv., Inc. v. Texas Eastern Overseas, Inc., E.D. Cal., No. 00-cv-00113 Cleanup cost litigation against multiple parties for tainted soils at an industrial laundry plant in Texas. After 9th Circuit remand, district court rules pro rata approach applies. Allocation trial completed 11/15/16. Briefing completed 12/19/16 on proportionate share approach. Pro Rata Split of Superfund Costs Ruled Fairer (30 TXLR 948, 10/1/15)
  Emhart Indus., Inc. v. New England Container Co., D.R.I., No. 06-cv-00218 Allocation of cleanup costs for Centredale Manor Superfund Site in Rhode Island. Emhart held jointly liable for failure to establish divisibility of harm. Phase II bench trial continued to 1/17/17. Brief Operation Rejected for Superfund Apportionment (30 TXLR 931, 9/24/15)
  Georgia-Pacific Consumer Prods. LP v. NCR Corp., W.D. Mich., No. 11-cv-00483 NCR liable as “arranger,” International Paper as “operator,” for PCBs at the Kalamazoo Superfund Site. Bench trial to determine allocation of cleanup costs ended 12/19/15. Post-trial motions ongoing. NCR Liable as Arranger for Recycled Scrap; International Paper Liable as Mill Operator (28 TXLR 1086, 10/3/13)
  Garrett Day LLC v. Int'l Paper Co., S.D. Ohio, No. 15-cv-00036 Multi-party litigation over paper mill contamination brought by assignees of the city of Dayton, Ohio. Amended complaint filed 3/24/16. Pretrial motions ongoing. Failure to Allege ‘Disposal' Warrants Superfund Dismissal (31 TXLR 204, 3/3/16)

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