Apr 13: In the U.S. Court of Appeals, Second Circuit, Case No. 10-1570. Appealed from the United States District Court for the Eastern District of New York. Plaintiffs Yankee Gas Services Company and The Connecticut Light and Power Company (CL&P), current owners of the sites of thirteen former manufactured gas plant facilities (MGPs) in Connecticut, sued defendant UGI Utilities, Inc. (UGI), the alleged past operator of the MGPs, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), to recover plaintiffs' costs in responding to MGP pollution from the period 1884 to 1941. Plaintiffs appealed from a judgment in favor of defendant entered after a bench trial at which the district court determined that UGI was not an operator of nine of the MGPs under the standard set forth in United States v. Bestfoods, 524 U.S. 51 (1998), and that the statute of limitations had run with respect to two of those nine MGPs.
In a ruling by summary order, that does not have precedential effect, the Appeals Court said, "Because we identify no error of law or fact in the district court's operator determination, we affirm the judgment on that basis and need not address its limitations conclusion." The Appeals Court said further, ". . .we have reviewed the trial record, the district court's meticulous and well-reasoned opinion, and the parties' arguments on appeal, and we identify no legal error or clear factual error in the determination that UGI was not an operator of the subject MGPs during the period in question. . . Accordingly, we identify no error of law or fact in the district court's finding 'that Plaintiffs have failed to prove by a preponderance of the evidence that UGI and CL&P conducted operations at the MGPs in some sort of joint venture or joint undertaking, and that UGI's involvement with the individual MGPs was consistent with its role as an investor and shareholder of, and consultant to, CL&P.'"
Access the complete order (click here). [*Remed]
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