Thursday, March 1, 2012

U.S. v. General Electric Company

Feb 29: In the U.S. Court of Appeals, First Circuit, Case No. 11-1034. Appealed from the U.S. District Court of New Hampshire, Concord. The Appeals Court explains that Defendant-Appellant General Electric Company (GE) appeals from a district court judgment holding it liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA for response costs incurred by U.S. EPA in the unfinished cleanup of the Fletcher's Paint Works and Storage Facility Superfund Site in Milford, New Hampshire (Fletcher Site). GE also appeals the district court's judgment awarding the United States certain costs incurred in connection with the Fletcher Site's cleanup. The Appeals Court affirmed the judgment of the district court on both issues.
    The Appeals Court explained further, "We hold that the instant suit is a subsequent action under CERCLA and that the 1991 Action was an initial action as per § 9613(g)(2). GE does not claim -- nor do we believe it reasonably could -- that the 1991 Action was not an 'action for recovery of the costs referred to in section 9607 . . . .' 42 U.S.C. § 9613(g)(2). Although the United States asserted a claim for declaratory judgment regarding GE's liability in the 1991 Action, the parties concluded that resolving the matter via consent decree was to their mutual benefit. The United States and GE both walked away from the 1991 Action knowing they would likely meet again; GE did not concede liability and the United States reserved its right to pursue additional recovery costs at a later date. This agreement was reached according to routine CERCLA practice and was consistent with the United States' obligation to avoid drawn-out litigation. See 42 U.S.C. § 9622(a) ('[W]henever practicable and in the public interest . . . the President shall act to facilitate agreements . . . to expedite effective remedial actions and minimize litigation.' (emphasis added by Appeals Court)). GE's claims to the contrary are unavailing."
    Access the complete opinion (click here). [#Remed, #CA1]
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