< Law and the Environment

Blog April 21, 2024

EPA Designates PFAS as Hazardous Substances; EPA Is More Confident Than I Am that the Sky Isn't Falling

Last Friday, EPA formally designated perfluorooctanoic acid and Perfluorooctanesulfonic Act – including their salts and structural isomers! – as hazardous substances under CERCLA. I cannot really quarrel with the underlying decision to list PFOA and PFOS. Given the developing evidence about the risks that they pose, it’s difficult to argue that they are not in fact “hazardous substances.”…

Blog May 25, 2021

I Love It When SCOTUS Reminds Me How Clear and Unambiguous CERCLA Is

Yesterday, the Supreme Court ruled that only settlements that explicitly resolve liability under CERCLA trigger the contribution provisions of section 113 of CERCLA. I have previously commented on the Court's tendency to treat CERCLA as much more straightforward and unambiguous than practitioners have understood it to be. The Court's approach to section 113 in yesterday's decision followed this now well-worn path. In a short, sweet, and unanimous decision…

Blog October 11, 2017

How Wrong Does a District Court Have to Be to Abuse Its Discretion?

The 9th Circuit Court of Appeals has reversed a District Court decision allocating 100% of CERCLA response costs at a San Diego Superfund site to TDY Holdings, which operated an aeronautical manufacturing plant from 1939 to 1999. TDY has sought contribution from the United States, which was the source of the vast majority of TDY's business, and which directed TDY to use certain hazardous substances…

Blog March 04, 2016

Complaints Are Not Totally Meaningless: A CERCLA Plaintiff Must Allege Disposal Against a Former Owner

I know it may surprise some litigators, but occasionally the allegations in a complaint do matter. In Garrett Day v. International Paper, the Court dismissed CERCLA claims brought by the current owner of a former paper mill located in Dayton, Ohio, against alleged former owners. The opinion covers a lot of issues, but the most important is the distinction between “release” and “disposal” under CERCLA…

Blog October 21, 2015

CERCLA Remains Ridiculous: A Remedy In Operation For 18 Years Is Short Term

Far too frequently, we are reminded just how hard judges must work to save CERCLA from itself. The decision last week in California River Watch v. Fluor Corporation is the most recent compelling example. Fluor Corporation has been performing response actions at a site, including operating a soil vapor extraction system, since no later than 1997. Fluor's remedial action plan was not approved until 2011 and a modified RAP was approved in 2014…

Blog July 14, 2015

CERCLA Statute of Limitations Applies To Contribution Claims By A Party to a Private Settlement

Sometimes cases seem to be deciding issues that are so obvious its hard to figure out why they get any serious attention from the courts. One such case is ASARCO, LLC v. Celanese Chemical Company recently decided by the Ninth Circuit. That decision affirmed the lower courts unsurprising ruling that, when a private party agrees to perform response actions or pay response costs in a private party settlement under CERCLA…

Blog May 14, 2015

Are Concurrent CERCLA Claims For Section 107(a) Cost Recovery and Section 113(f) Contribution Permissible?

Given the uncertainties after Cooper Industries v. Aviall about what cause of action a PRP has for recovering response costs under CERCLA, many parties take the prudent course of pleading claims under both for cost recovery and for contribution. A federal court in South Carolina in PCS Nitrogen, Inc. v. Ross Develop Corporation recently held that when a PRP can satisfy the pleading requirements of both a cost recovery claim and a contribution claim it is limited to only a contribution……

Blog February 24, 2015

CERCLAs Confusion Between Section 107 and Section 113

Over a decade after the Supreme Court's decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs at Superfund sites would almost always prefer to seek reimbursement of those costs as a Section 107 claim given its more favorable statute of limitations and joint and several liability standard. However, the post-Aviall case law offers little clarity as to the……

Blog February 09, 2015

Parent Corporations Beware: Control Over Your Subsidiaries is a Double-Edged Sword

The decision earlier this month in Cyprus Amax Minerals v. TCI Pacific Communications is a useful reminder that corporate form exists for a reason and that parent corporations who ignore corporate niceties do so at their peril. In the Bestfoods decision, the Supreme Court made clear that CERCLA does not displace state corporate law and that a parent corporation will only be held indirectly liable for the acts of its subsidiaries when the corporate veil can be pierced under applicable……

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Blog Editors

Seth Jaffe

Partner

Boston

+1.617.832.1203

sjaffe@foleyhoag.com

Carol Holahan

Partner

Boston

+1.617.832.1125

cholahan@foleyhoag.com

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