CERCLA Litigation Liability Update: Cases, New Twists THURSDAY , - - PowerPoint PPT Presentation

CERCLA Litigation Liability Update: Cases, New Twists

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

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.

THURSDAY , APRIL 30, 2020

Presenting a live 90-minute webinar with interactive Q&A 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.

Tips for Optimal Quality

Sound Quality If you are listening via your computer speakers, please note that the quality

• f your sound will vary depending on the speed and quality of your internet

connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-877-447-0294 and enter your Conference ID and PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the ‘Full Screen’ symbol located on the bottom right of the slides. To exit full screen, press the Esc button.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926

• ext. 2.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please complete the following steps:

• Click on the link to the PDF of the slides for today’s program, which is located

to the right of the slides, just above the Q&A box.

• The PDF will open a separate tab/window. Print the slides by clicking on the

printer icon.

FOR LIVE EVENT ONLY

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

TOPICS



Superfund Liability: An Overview



PRPs: Owners, Operators, Arrangers, and Transporters



Accrual of Claims and Statutes of Limitations



Liability Defenses: Sovereign Immunity, Preemption, and Releases



Allocation/Damages



COVID-19 Issues



Questions

6

Superfund Liability: An Overview

7

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

8

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),

• r settled with the government through an administrative or

judicially approved settlement, you are limited to a § 113(f) contribution claim – several liability only

9

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).

10

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)

11

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

12

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 (7th 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 (10th Cir. 1993)

13

PRPs: Owners, Operators, Arrangers, and Transporters

14

• 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 (8th Cir. 2019) 15

Accrual of Claims and Statutes of Limitations

16

• A. Refined Metals Corporation v. NL Industries Inc.,

937 F.3d 928 (7th 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 (3rd 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)

17

Liability Defenses: Sovereign Immunity, Preemption, and Releases

18

• 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 (7th Cir. 2019)

• D. Asarco, LLC v. Union Pacific Railroad,

778 Fed. Appx. 423 (9th 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)

19

Allocation/ Damages

20

• A. Giovanni v. U.S. Dept. of Navy,

906 F.3d 94 (3rd Cir. 2018)

• B. Valbruna Slater Steel Corp. v. Joslyn Mfg. Co.,

934 F.3d 553 (7th 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 (1st Cir. 2019)

21

COVID-19 Issues

22

List of State Orders (updated daily as needed):

https://www.mankogold.com/publications-Stay-at-Home-Orders-Environmental-Remediation.html

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

• f the work

 Anticipate varying interpretations

IMPACT OF STAY-AT-HOME ORDERS

23

EPA’S INTERIM GUIDANCE ON SITE FIELD WORK DECISIONS DUE TO IMPACTS OF COVID-19 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 Refer to Enforcement Instrument for Provisions Related to Delayed Performance and Force Majeure Consider Applicable Health Orders, Safety and Availability

• f 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

24

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)

25

Potential Areas of Future Disputes

 Ambiguous exemptions in state orders  Inconsistent policy across EPA regions  Opportunistic interpretations from third parties (force

majeure, impossibility, impracticability, frustration of purpose)

 Indirect disputes – site access, contract claims  Future third party/citizen suits  Disagreements with outside consulting firms  Insurance coverage disputes

26

Shoshana Schiller Manko, Gold, Katcher & Fox, LLP Bala Cynwyd (Philadelphia), Pennsylvania sschiller@mankogold.com

Jonathan Nwagbaraocha Xerox Corporation Rochester, New York jonathan.nwagbaraocha@xerox.com Denise Gail Fellers Morgan, Lewis & Bockius LLP Los Angeles, California denise.fellers@morganlewis.com

Questions?

27