Archive for the tag 'Contamination'

District Court Dismisses CERCLA Suit as Time Barred

SteveK September 30th, 2010

On September 21, 2010, Judge Freda Wolfson of the U.S. District Court for New Jersey dismissed the claims of the United States against Rohm and Haas due to the limitations periods contained in CERCLA.  The U.S. agreed that the suit was untimely; however, argued that the limitations periods contained in CERCLA should be tolled due to a change in law on whether oversight costs are recoverable, and for other equitable reasons.

The defendants (including predecessors) had disposed of industrial wastes at the site between 1950 and 1965. After site investigation, the site was listed on the NPL in 1984. An ACO was entered into with the NJDEP in 1991 and RI/FS was completed in 1992. Substances were removed from the site  from 1991 through 1995 and the EPA issued a Baseline Risk Assessment finding the site no longer posed a risk to human health or the environment in 1996. A Record of Decision (ROD) was issued in September of 1996. A PRP letter was issued to the defendant in 1997 after which the parties entered into a Consent Order which explicitly excluded any reimbursement of oversight costs, which were defined as “future response costs incurred by EPA in monitoring and supervising [Morton’s] performance …”  The Consent Order did not contain a tolling agreement.  The monitoring of the site was completed in 2001 and the site was taken off of the NPL in 2002. Six years later the EPA wrote to the defendant demanding payment of oversight costs.  Shortly thereafter the parties entered into a tolling agreement from November 2008 to March of 2009.  The complaint was filed in October of 2009. In the complaint, the U.S. sought the recovery of oversight costs, although the government did reserve its rights to seek other costs.

There are two potential limitations periods under CERCLA that could apply to the claims. The first is a 3 year period for commencement of a removal action which starts to run after completion of the removal,  and a 6 year period for a remedial action, which commences with the initiation of physical on-site construction of the remedial action. The Court acknowledged that case law provides that the 3 year period begins to accrue upon issuance of the ROD, which in this case was issued in 1996. The 6 year statute began to run in 1991 when defendant began to remove hazardous substances from the site.  The government, however, argued that it was barred from bringing the action for oversight costs by the Third Circuit’s 1993 decision in U.S. v. Rohm and Haas 2 F.3d 1265 (3rd. Cir. 1993) which was subsequently overturned  by U.S. v. DuPont, 432 F.3d 161 (3rd Cir. 2005). The government argued that its claims could not have accrued as it could not have been brought until the decision in DuPont was issued in December 2005.

The court rejected the government’s argument in part due its statement that costs other than oversight costs might be included. According to the court, that constituted a concession that the claim for the other costs could have been brought as they were not precluded and resurrected by the decision of the 3rd Circuit. The court reasoned, further, that the application of periods for limitations should not be governed by the uncertainties of changing laws.  The court noted that other jurisdictions had rendered decisions contrary to the 1993 Rohm and Haas decision, so that it would have been appropriate to take actions to preserve the claims.

The court then considered whether the claims could proceed under the doctrine of equitable tolling. The court, again, ruled in favor of defendants finding that the government had not acted diligently in pursuing or preserving its claims. The court pointed to such actions as the failure to include a reservation and tolling of the claims for oversight and future costs in the Consent Order, the failure to initiate proceedings with the knowledge of favorable decisions on the ability to recover oversight costs from other jurisdictions, and then waited over three years from the issuance of the DuPont decision to institute its action. As the court stated: “Such behavior does not bespeak of due diligence in preserving one’s claim.”

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department

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EPA releases Draft Clean Water Strategy and seeks further comment.

SteveK August 20th, 2010

On August 20, 2010, the EPA posted its Draft Clean Water Strategy for review and comment. The Draft resulted from the Coming Together for Clean Water Conference which was hosted by EPA Administrator Lisa P. Jackson this past April. The Draft identifies the challenges to continuing the efforts launched by the 1972 passage of the Clean Water Act. While acknowledging the significant progress that has occurred since then, the community involved recognizes that much more needs to be done to revitalize the resources. The Draft further presents the significant economic benefits which can be realized from having clean water and in taking the actions and building the infrastructure to achieve the goals. The Draft demonstrates the continued viewpoint that environmental protection is not a drain on economic growth but a significant component of our development.

A copy of the Draft, information on the April conference, and information on providing comments on the draft, can be found on the EPA website at: http://blog.epa.gov/waterforum/ Comments will be accepted until September 17, 2010.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department

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Remaining defendant is liable for past costs not covered by CERCLA consent decree.

SteveK August 17th, 2010

In U.S. v. Iron Mountain Mines, the U.S. District Court for the Eastern District of California granted summary judgment to the plaintiffs against Iron Mountain Mines and T.W. Arman for past costs which had not been resolved in a consent decree in which claims against other PRPs at the Iron Mountain Mines Superfund Site were settled.  The plaintiffs had previously settled with the other PRPs for approximately $154 million of insurance to cover future cleanup costs over 30 years, $10 million for natural resource damages, and an additional $7 million for future clean up not covered by the insurance. The defendants argued that the settlement amounts well exceeded the $26 million in past costs that had been incurred prior to February 29, 1996 which were being sought from them, therefore providing plaintiffs complete recovery.  Defendants argued, further, that it would not be known until after the 30 year period for payment of cleanup under the insurance policy whether the plaintiffs would not be made whole. The plaintiffs argued that no money had been received for the past costs.  The Court agreed with the plaintiffs, finding that the consent decree did not address past costs, but only future remedial costs and NRD. Since Section 113(f)(3) of CERCLA permits suit against non-settling responsible parties if the relief obtained in a settlement was not complete, the Court held for the plaintiffs.

This decision points to the essential need for a party to be informed in every step in the negotiation of a settlement, particularly if they are not a party to the settlement. As in the recent decisions of the 9t Circuit,  U.S. v Aerojet, and the 10th Circuit, U.S. v Albert Investment Co., it s important to take an active position, and where appropriate move to intervene,  on a motion or action to approve a CERCLA consent decree. Indeed, it has been acknowledged that CERCLA can impose harsh results on non-settling PRPs. See, United States v. Davis, 261 F. 3d. 1, 28 (1st Cir. 2001).

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

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9th Circuits holds owner of property at time cleanup costs are incurred is the owner under CERCLA

SteveK August 17th, 2010

On July 22, 2010, in State of California v. Hearthside Residential Corp., the court addressed a question of first impression: “whether the ‘owner and operator status under [CERCLA] is determined at the time that cleanup costs are incurred or instead the time that a recovery lawsuit seeking reimbursement is filed.” The concluded that the owner is determined at the time cleanup costs are incurred.

Hearthside had purchased property known as Fieldstone Property in Huntington Beach, California with the knowledge that it was contaminated with PCBs. Hearthstone entered into a consent order with the State in which it agreed to remediate the property, then sold to the property to the California State Lands Commission. The State determined that the adjacent residential site was also contaminated with PCBs which it alleged had migrated from the Fieldstone Property. The State considered Hearthstone responsible; however, Hearthstone disagreed, contending that it was not the owner when the suit was filed. The State, therefore, contracted to remediate the property and subsequently filed a complaint against Hearthstone.

Since CERCLA does not provide a clear answer to the issue of when a party is considered an owner for purposes of liability, and no case dealt with the issue directly, the court considered other aspects of the statute. The court concluded that the issue best aligns with CERCLA’s statute of limitations. Since the limitations provisions are triggered either (1) at the completion of a removal action, or (2) at the initiation of the remedial action, the court concluded that it was the intent of Congress was to have the statute of limitations “run against (and protect) the owner of the property at the time the cleanup occurs.” The court reasoned that if Hearthstone’s argument were accepted, “an owner could sell a recently cleaned piece of property to an innocent owner one day before the statute of limitations runs, with the result that the new owner would bear full cleanup liability under CERCLA if a recovery action was later timely filed.” Accordingly, the court saw this as contextual evidence of Congressional intent that the owner at the time of cleanup was to be considered the owner for the purpose of CERCLA liability.  In addition, relying on the date of filing of the cost recovery action contradicts the intent to have early settlements. In essence, Hearthside’s approach would require the filing of a suit in order to determine the date of ownership.  In addition, since the owner at the time of cleanup can help determine the scope of cleanup, “it follows that the same owner should be responsible for the cost of the remediation program that it had the opportunity to influence.”

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

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District Court holds the Statute of Limitations for NRD claims under CERCLA is triggered by constructive knowledge of injury by Trustee.

SteveK July 17th, 2010

On July 13, 2010, in Commissioner of the Department of Planning and Natural Resources v. Century Alumina, LLC, et.al., the Federal District Court from the St. Croix division of the Virgin Islands, held that an action to recover natural resource damages (NRD) must be commenced within 3 years of the constructive knowledge of the injury by the trustee.

The plaintiff trustee brought the claim against a number of industrial entities for the release of contaminants onto a number of industrial tracts at various times which injured the land as well as groundwater and the Caribbean Sea.  The defendants moved for summary judgment seeking dismissal of the claims under CERCLA’s limitation of actions provision, which provides that an action for NRD must be commenced within 3 years following “the date of the discovery of the loss and its connection with the release in question.” Although the statute does not state what is meant by “discovery” the court relied upon numerous prior decisions as to other statutes and other aspects of CERCLA to conclude that it is based upon the constructive knowledge of the trustee. The court went on to clarify that the knowledge of the agency, including the knowledge of any prior trustee, would be imputed to the present trustee.  Accordingly, the determination of whether there was NRD related to the discharges would require an analysis of when the trustee knew or should have known that there was an injury to the natural resource related to the discharges, which would commence the running of the time for bringing an action. With this ruling in hand, the court analyzed the facts as to each site and each defendant, dismissing some claims and allowing others to continue.

This case demonstrates that there courts will take a rational approach in considering the relationship between knowledge of a discharge of contaminants and the commencement of NRD claims. The interests of the government to pursue recovery of NRD, while important, will not allow the government to be inattentive to their statutory obligation to act promptly to seek to enforce these rights.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

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