Presenting a live 90-minute webinar with interactive Q&A CERCLA Litigation Liability Update: Cases, New Twists THURSDAY , APRIL 30, 2020 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Denise G. Fellers, Attorney, Morgan Lewis & Bockius , Los Angeles Jonathan Nwagbaraocha, Counsel - Environment, Health, Safety & Sustainability and Compliance Leader, Xerox , Rochester, NY Shoshana Suzanne Ilene Schiller, Partner, Manko Gold Katcher & Fox , Bala Cynwyd, Pa. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1 .
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CERCLA Litigation Liability Update: New Cases, New Twists DENISE FELLERS MORGAN LEWIS & BOCKIUS, LLP JONATHAN NWAGBARAOCHA XEROX CORPORATION SHOSHANA SCHILLER MANKO GOLD KATCHER & FOX, LLP
6 Superfund Liability: An Overview PRPs: Owners, Operators, Arrangers, and Transporters Accrual of Claims and Statutes of Limitations TOPICS Liability Defenses: Sovereign Immunity, Preemption, and Releases Allocation/Damages COVID-19 Issues Questions
7 Superfund Liability: An Overview
8 CERCLA Liability, Generally Release or Substantial Threat of a Release Of a Hazardous Substance From a Facility Released by one of four Categories of PRPs Present Owners and Operators Owners and Operators at the time of Disposal Generators – generated hazardous substances that came to be located at the site or who “otherwise arranged” for their disposal or treatment Transporters or anyone who arranged with transporters for transport for disposal or treatment
9 Cost Recovery vs. Contribution Claims Cost Recovery Claims . If you have incurred response costs on a cleanup you are conducting, and have not been sued by anyone, you can bring a § 107(a) cost recovery claim – joint and several liability Contribution Claims . If you have been sued under § 106 or § 107(a), or settled with the government through an administrative or judicially approved settlement, you are limited to a § 113(f) contribution claim – several liability only
10 Accrual of Claims/Statute of Limitations Under CERCLA Section 113, contribution claims must be brought within three years of a civil action under Section 106 or 107, a CERCLA administrative order, or a judicially approved settlement with respect to costs or damages. 42 U.S.C. § 9613(g)(3).
11 Defenses Act of God, CERCLA § 107(b)(1) Act of War, CERCLA § 107(b)(2) Act of Omission of a Third Party, CERCLA § 107(b)(3) Federally Permitted Release, CERCLA § 107(j) Recycling Exemption, CERCLA § 127 Lender Liability Exemption, CERCLA § 101(20) Bona Fide Prospective Purchaser, CERCLA § 101(40)
12 Divisibility vs. Allocation Divisibility/Apportionment is a defense to § 107(a) joint and several liability Equitable Allocation is an equitable allocation of liability by the court between liable parties, but the result can vary significantly depending upon whether its: An allocation between jointly and severally liable defendants in a § 107(a) cost recovery action, or An allocation involving severally liable parties in a § 113 contribution action
13 Equitable Allocation For a defendant at a multiple PRP site, the next best alternative to a divisibility defense is to seek a reasonable allocation of liability The court may allocated response costs among liable parties using such equitable factors as the court determines are appropriate The District Court is authorized to make the final equitable allocation of costs and to choose which equitable factors will inform its decision A court may consider several factors, a few factors, or only one determining factors, depending on the totality of the circumstances presented to the Court. See NCR Corp. v. George A. Whiting Paper Co. , 768 F.3d 682, 695-696 (7 th Cir. 2014) The Court must “balance the equities in light of the totality of the circumstances.” FMC Corp. v. Aero Industries, Inc ., 998 F.2d 842, 847 (10 th Cir. 1993)
14 PRPs: Owners, Operators, Arrangers, and Transporters
15 A. Idaho Waste Systems, Inc. v. U.S. Air Force, 2020 WL 697914 (D. Idaho Jan. 27, 2020), adopted by 2020 WL 699824 (D. Idaho Feb. 11, 2020) B. Cottman Ave. PRP Group v. AMEC Foster Wheeler Envt'l Infrastructure Inc., 2020 WL 757834 (E.D. Pa. Feb. 13, 2020) C. U.S. v. Dico, Inc., 920 F.3d 1174 (8 th Cir. 2019)
16 Accrual of Claims and Statutes of Limitations
17 A. Refined Metals Corporation v. NL Industries Inc., 937 F.3d 928 (7 th Cir. 2019) B. Premcor Ref. Grp., Inc. v. Apex Oil Co., Inc., 2019 WL 1489543 (S.D. Ill. Feb. 6, 2019) C. 2121 Abbott Martin Partners, LLC. v. Lee, 2019 WL 3818870 (M.D. Tenn. Aug. 14, 2019) D. Cranbury Brick Yard, LLC v. United States, et. al., 943 F.3d 701 (3 rd Cir. 2019) E. Government of Guam v. United States of America, 950 F.3d 104 (D.C. Cir. 2020) F. Arconic, Inc., et al. v. APC Inv. Co., et al., 2019 WL 398001 (C.D. Cal. Jan 15, 2019)
18 Liability Defenses: Sovereign Immunity, Preemption, and Releases
19 A. Gold King Mine Release in San Juan County, CO, 2019 WL 1369349 (D.N.M. Mar. 26, 2019) & 2019 WL 999016 (D.N.M. Feb. 28, 2019) B. LCCS Group v A.N. Logistics, 341 F. Supp.3d 847 (N.D. Ill. 2018) C. LAJIM, LLC v. General Electric Company, 917 F.3d 933 (7 th Cir. 2019) D. Asarco, LLC v. Union Pacific Railroad, 778 Fed. Appx. 423 (9 th Cir. 2019) E. Atlantic Richfield Co. v. Gregory A. Christian, et al., 2020 WL 1906542 (U.S. Apr. 20, 2020) F. Idaho Waste Systems, Inc. v. U.S. Air Force, 2020 WL 697914 (D. Idaho Jan. 27, 2020)
20 Allocation/ Damages
21 A. Giovanni v. U.S. Dept. of Navy, 906 F.3d 94 (3 rd Cir. 2018) B. Valbruna Slater Steel Corp. v. Joslyn Mfg. Co., 934 F.3d 553 (7 th Cir. 2019) C. Mission Linen Supply v. City of Visalia, 2019 WL 446358 (C.D. Cal. Feb. 5, 2019) D. Thomas & Betts Corp. v. New Albertson's, Inc., 915 F.3d 36 (1 st Cir. 2019)
22 COVID-19 Issues
23 IMPACT OF STAY-AT-HOME ORDERS Does the state/local order directly or indirectly prevent site work? Identify the applicable order(s) – state and local Review exemptions Understand their unique application on a site-by-site basis Consider the context – strength of the order vs. urgency of the work Anticipate varying interpretations List of State Orders (updated daily as needed): https://www.mankogold.com/publications-Stay-at-Home-Orders-Environmental-Remediation.html
24 No Blanket Waivers of Obligations Prioritize health and safety of public and workers while maintaining ability to prevent and respond to any substantial endangerment to human health or the environment EPA’S INTERIM GUIDANCE Refer to Enforcement Instrument for Provisions Related to ON SITE FIELD WORK Delayed Performance and Force Majeure DECISIONS DUE TO IMPACTS OF COVID-19 Consider Applicable Health Orders, Safety and Availability of Work Crews and Staff, Need for Travel, Critical Nature of Work, and other Site-Specific Issues https://www.epa.gov/sites/production/files/2020- 04/documents/interim_guidance_on_site_field_work_decisions_due_to_impacts_of_covid.pdf
25 Mitigate and Document the Impact Analyze the guidance, regulation, permit, order, consent decree, or contract Duty to notify? Duty to mitigate? Duty to perform as soon as practicable? Document the Impact and the Actions Work scheduled Applicable order(s) Direct/indirect impact on work Implementation of site-specific COVID-19 protocols Communicate with the appropriate Agency (and document communications)
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