Gibbons Law Alert

Gibbons Law Alert

Tagged: CERCLA

USDOJ Legal Memo Clarifies Department’s Policy on Using Federal Judgment Fund to Settle Superfund Cases

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Posted in Environmental and Green Issues

On September 18, 2020

A U.S. Department of Justice legal memo, obtained under the Freedom of Information Act by Bloomberg Law, has clarified and restated the Department’s strict policy against using the federal Judgment Fund to settle Superfund cases in which the federal government is a Potentially Responsible Party (PRP). The memo states that the federal government can settle its liability by payments from the Fund only if the settlement is “final” – that is, there are no contingencies or future payments due. Many Superfund settlements do not meet that standard, since they typically include reopeners, “pay-as-you-go” arrangements, or provisions for additional funding if the remedy proves more expensive than originally estimated. As Gibbons Director David J. Freeman told Bloomberg Law, “It’s not a favorable development for the program, or for making progress on settlements in general, for the government to be taking such a hard line on this.” This policy will likely result in making it more difficult to achieve settlements at sites where the federal government is a PRP.

(State) Settlors Beware, Too: In Reversal, Third Circuit Declares that State Settlement Does Not Protect Against Federal Claims under CERCLA

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Posted in Environmental and Green Issues

On September 14, 2020

Previously, the District of New Jersey ruled that a polluting party’s settlement agreement with the New Jersey Department of Environmental Protection (NJDEP) provided contribution protection from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims based on costs incurred by the United States Environmental Protection Agency (USEPA) at the same site, even though USEPA was not a party to the settlement. In a prior blog post discussing that decision, we noted that the District Court’s decision was likely to be appealed. It was. On appeal, the Third Circuit considered the inquiry of “[w]hether a polluting party’s settlement with the State of New Jersey protects it from lawsuits seeking contributions toward expenditures made by the Federal Government on the same site,” and determined in a precedential opinion that, “the answer here is no.” CERCLA section 113(f)(2) provides that “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” The District Court applied the analysis commonly adopted by other federal courts to determine the “matters addressed” of the previous settlement where the scope is not made explicit by the agreement itself. This analysis includes factors such as the location, time frame,...

Recent CERCLA Decision Allows Divisibility of Comingled Groundwater Plume

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Posted in Environmental and Green Issues

On June 8, 2020

In Burlington Northern, when the United States Supreme Court decided that joint and several liability under section 107 of CERCLA could be ameliorated in cases where the harm was theoretically capable of apportionment, potentially responsible parties (PRPs) hailed the decision outlining the test for divisibility as a great breakthrough. In practice, however, the availability of the divisibility defense that PRPs hoped would flow from the Burlington Northern decision has been limited, particularly in complex, comingled groundwater plume cases. In March 2020, however, the District Court in Von Duprin LLC v. Moran Electric Service, Inc. et al. (United States District Court, Southern District of Indiana – Indianapolis Division. Case No. 1:16-cv-01942-TWP-DML) issued the first CERCLA decision finding that a comingled groundwater plume was capable of apportionment because there was a reasonable basis to divide the harm. The District Court relied on the findings of one of the technical experts, who analyzed substantial groundwater monitoring results from four different source areas and demonstrated that the magnitude of the concentrations and chemical characteristics of the Chlorinated Volatile Organic Compounds (CVOCs) were different in the four source areas. The Von Duprin case involved the release of hazardous substances at four properties located in Indianapolis, Indiana, including property previously owned by Von Duprin (the “Von Duprin Facility”) and three upgradient...

Who’s in Charge Here?: Third Circuit Holds That Government Was Not an “Operator” of Jersey City Chromium Facility for Purposes of Superfund Liability

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Posted in Environmental and Green Issues

On May 7, 2020

Federal courts have long struggled to determine the shape and boundaries of the wide liability net cast by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law. In its recent decision in PPG Industries Inc. v. United States, the Third Circuit applied circuit and Supreme Court precedent to hold that the government’s influence over a chromite ore processing plant in Jersey City during World War I and World War II was not pervasive or intrusive enough to make the government a past “operator” of the plant and thus liable for cleanup costs. Prior to PPG’s 1954 acquisition of the plant (which it continued to operate until 1963), Natural Products Refining Corporation (NPRC) operated the plant, which processed chromite ore into various chromium chemicals, including sodium bichromate. During both World War I and World War II (when it designated the plant’s output as critical war materials, i.e., products manufactured for direct military use), the government regulated the production of chromium chemicals. Through a variety of price, labor, and production controls, the government sought to encourage increased production of these key chemicals. Those efforts, however, did not extend to direct control over day-to-day operations or to the use of government employees to run the facility. Moreover, while the government was aware...

“Cooperative Federalism” or “Paternalistic Central Planning”?: U.S. Supreme Court Agrees That State Courts Can Hear Claims Over Adequacy of CERCLA Cleanups Under Certain Circumstances, But Limits Plaintiffs’ Options

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Posted in Environmental and Green Issues

On April 27, 2020

The federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law, prescribes a careful process for making decisions on how to remediate contaminated sites. To avoid delay, the statute also divests federal courts of jurisdiction to hear most challenges to the selected remedy. In its recent opinion in Atlantic Richfield Co. v. Christian, the U.S. Supreme Court agreed that CERCLA does not bar state courts from hearing claims grounded in state law that go beyond claims for money damages and seek a cleanup that goes beyond what EPA requires. The case arose in Montana, where the Anaconda Copper Smelter operated for over a century and contaminated an area of over 300 square miles with arsenic and lead. Atlantic Richfield Company acquired the financially troubled smelter in the 1970s but could not reverse its decline, and closed it by 1980. Three years later, EPA named it one of its first official Superfund sites, and since then Atlantic Richfield has spent over $450 million on a cleanup that is expected to continue until 2025. The Superfund site that Atlantic Richfield has been remediating includes numerous residential properties. The owners of 98 of those properties sued Atlantic Richfield in Montana state court in 2008, asserting state common law claims. In addition to traditional...

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

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Posted in Development/Redevelopment / Environmental and Green Issues

On April 16, 2020

Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic. EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19 EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs). At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and whether social distancing at specific sites is possible. In making decisions to reduce or suspend...

SCOTUS Provides Clarity to Charterers in Oil Spill Case and All Parties Subject to OPA Should Take Note

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Posted in Environmental and Green Issues

On April 13, 2020

On March 30, 2020, the U.S. Supreme Court issued a decision that will directly affect those in the maritime charter industry, and may ripple out to anyone performing a cleanup or defending a claim under the Oil Pollution Act (OPA). The case began with a 1,900-mile voyage by the M/T Athos I, which was a 748-foot single-hulled oil tanker, from Venezuela to Paulsboro, New Jersey in November 2004. Only 900 feet from the ship’s intended destination, it struck a nine ton anchor that was abandoned in the Delaware River. The anchor pierced the hull of the vessel and caused over 250,000 gallons of crude oil to spill into the river, which resulted in a $133 million cleanup. Frescati Shipping Company, the owner of the ship, together with the United States, paid for the cleanup as required under OPA, and then sought its cleanup costs from the charterer, CITGO Asphalt Refining Company (“CARCO”). The question before the High Court was “whether the safe-berth clause is a warranty of safety, imposing liability for an unsafe berth regardless of CARCO’s diligence in selecting the berth.” Frescati and the U.S. argued that CARCO breached the charter-contract’s “safe-berth” clause, which obligated CARCO to designate a safe-berth where the ship would be able to come and go “always safely afloat.” CARCO,...

Gibbons Director David J. Freeman to Serve as Co-Chair for NYS-NYC Bar Program

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 4, 2019

Gibbons Director David J. Freeman will serve as Program Co-Chair of an upcoming New York State Bar/New York City Bar conference on Federal and New York State brownfield and Superfund programs. The conference will take place from 10:00 a.m. to 3:00 p.m. on December 12, 2019 at the New York City Bar Association, 42 West 44th Street, New York, NY 10036. The program’s distinguished faculty includes New York State Attorney General Letitia James, Environmental Protection Agency (EPA) Region 2 Administrator Pete Lopez, and other officials from the EPA, the New York State of Department of Environmental Conservation (NYSDEC), the New York State Office of Attorney General, and the New York City Office of Environmental Remediation. The topics to be discussed will include: trends in federal Superfund enforcement, including natural resource damages claims and the impact of the Superfund Task Force recommendations; NYSDEC policies and practices in implementing the 2015 Amendments to the Brownfield Cleanup Act; the intersection between Superfund and brownfields, focusing on developments at the Gowanus Canal Superfund Site; and an analysis of case law developments in these areas. Click here for a brochure describing the program and here for a further description and registration information.

NJ District Court Leaves Plaintiff Without Course of Relief Under CERCLA

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Posted in Environmental and Green Issues

On September 24, 2019

In Stahl v. Bauer Auto, Inc., the U.S. District Court for the District of New Jersey handed down a decision that may be troubling for parties seeking to recover environmental cleanup costs under the Comprehensive Environmental Responsive Compensation and Liability Act (CERCLA). By way of background, CERCLA generally provides a private cause of action to plaintiffs in two circumstances. The first falls under section 107(a), which allows a plaintiff to seek recovery of response costs that it has incurred from other potentially responsible parties. The second falls under section 113(f), which allows a plaintiff that is or was the defendant of a cost recovery claim, or that has resolved its liability with the Environmental Protection Agency (EPA) under a judicially approved settlement, to seek contribution from other potentially responsible parties. Generally, a party that has incurred or will incur costs under CERCLA falls under one or both of these two categories. However, the N.J. District Court in Stahl held that there is at least one scenario where a plaintiff does not fall into either of these two categories and therefore has no claim under CERCLA. The factual history in the Stahl matter is long and complex. In short, the underlying environmental cleanup was at a property in Chatham, New Jersey. The plaintiffs owned a company...

U.S. Supreme Court Provides Guidance on the Disclosure of Confidential Information Under FOIA

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Posted in Environmental and Green Issues

On August 21, 2019

Businesses often share sensitive information with the government either voluntarily or by mandate. This information becomes subject to requests under the Freedom Of Information Act (FOIA), which is a source of concern to any business worried about disclosure of competitive business information. The United States Supreme Court recently handed down a decision that directly addresses this concern. In Food Marketing Institute v. Argus Leader Media, the Court provides guidance on the protection from the disclosure of shared information deemed “confidential” under FOIA’s Exemption 4. In addition to businesses, this decision will have significant impact on public interest groups and media that may seek information through FOIA. Justice Gorsuch authored the opinion for the majority, which Chief Justice Roberts and Justices Thomas, Alito, Kagan, and Kavanaugh joined. Justice Breyer added an opinion concurring in part, and dissenting in part that Justices Ginsburg and Sotomayor joined. Argus Leader Media, a newspaper in South Dakota, filed a request under FOIA seeking information the United Stated Department of Agriculture collected as part of the national food stamp program known as the Supplemental Nutritional Assistance Program (SNAP). Specifically, Argus Leader sought the names and addresses of retailers that participate in SNAP and each store’s annual redemption data. The USDA released the names and addresses of participating retailers, but invoked FOIA’s...

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