Tuesday, April 13, 2010

Agere Systems, Inc. v. Advanced Environmental Tech. Corp

Apr 12: In the U.S. Court of Appeals, Third Circuit, Case No. 09-1814. The appeal arises from nearly three decades of involvement by U.S. EPA at the Boarhead Farms Superfund Site in Bucks County, Pennsylvania. At issue in the underlying case was the disposal of millions of gallons of toxic waste, over a six-year time period, by more than twenty parties, with millions of dollars of cleanup costs at stake. Along with the factual issues, the case implicates the "still developing distinctions" between liability under § 107(a) and § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and the Superfund Amendments and Reauthorization Act of 1986 (SARA),
codified together at 42 U.S.C. §§ 9601-9675 (collectively CERCLA).
    On June 18, 2002, five plaintiffs -- Agere Systems, Inc. (Agere), Cytec Industries, Inc. (Cytec), Ford Motor Company (Ford), SPS Technology, LLC (SPS), and TI Automotive Systems LLC (TI) (collectively plaintiffs or appellees) -- filed the present suit against twenty-three defendants for cost recovery and contribution under CERCLA and the Pennsylvania Hazardous Sites Cleanup Act (HSCA), to recover costs that the plaintiffs had paid to the EPA pursuant to certain consent decrees or that they had provided as a consequence of the cleanup of hazardous substances at the Boarhead Site. All of the defendants except one, Carpenter Technology Corporation (Carpenter), settled their liabilities with the plaintiffs or were otherwise dismissed from the suit after a bench trial.
    On August 22, 2008, the United States District Court for the Eastern District of Pennsylvania entered judgment against Carpenter, finding it liable for 80% of the costs paid by the plaintiffs as of December 31, 2007, plus prejudgment interest. The Court also entered a declaratory judgment that Carpenter is liable for 80% of all cleanup costs that the plaintiffs may incur after January 1, 2008. The District Court denied Carpenter's motion to alter or amend the judgment, and Carpenter filed this appeal.
    The Appeals Court vacated the District Court's judgment and remand for proceedings consistent with its opinion. The Appeals Court made four request of the District Court in its reconsideration: [1] ". . .we ask the District Court to make a clear and unequivocal finding, if possible, as to when the EPA completed its removal action. To the extent the District Court decides it must reopen the record in order to make that finding, it may do so. . . [2] permit TI. . . and Agere. . . to go forward with their § 107(a) cost recovery claims to recoup costs paid as part of the shared expense of cleaning up the Boarhead Site. . . [3] . . .because we hold that Cytec, Ford, and SPS, as well as TI (with regard to OU-2), are shielded from contribution counterclaims under § 113(f)(2) and therefore do not have § 107(a) claims for costs incurred pursuant to the consent decrees, the District Court should again proceed solely under § 113(f) as to those claims. . . [4] while proceeding under § 113(f) to allocate liability among the parties, the District Court may not consider the June 23rd stipulation as evidence against Carpenter, at least not without addressing the evidentiary problems noted herein. . ."
    With regard to item #1 above, the Appeals Court said, ". . .whether there is a time-bar to plaintiffs' recovering the approximately $7 million they paid to reimburse the EPA for past costs. Further, if the District Court finds that the EPA initiated 'on-site physical construction' of the remedial action within three years of the completion of its removal action, it may apply the six-year statute of limitations exception contained in § 113(g)(2)(B). If the District Court finds that the EPA's December 6, 2001 suit was not time-barred, and that the plaintiffs are able to recover for past costs, the Court should make a more exact finding as the amount that the plaintiffs paid to reimburse the EPA for past costs."
    Access the complete opinion (click here).

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