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MILLIONS OF PFAS REMEDATION CASES WAITING TO BE SIGNED - By John Ray

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MILLIONS OF PFAS REMEDATION CASES WAITING TO BE SIGNED - By John Ray

To the PFAS litigation, this paper is relevant to the millions of private well cases and over 100,000 transient well cases which remain unsigned. Many of these cases are expected to exceed $1 million in settlement value and others are expected to exceed $1 billion in settlement value. 

The following will help you understand why these cases can be litigated by the smallest of firms even if that firm has no experience in environmental litigation.

CERCLA 107(a) private actions almost always settle quickly due to the provisions of 113(f). Any defendant that does not settle will likely be found liable on summary judgement and the only matter that might go to trial is damages.

There are certain procedural steps which must be observed when filing these cases. This topic will be covered in depth at the upcoming PFAS Summit IV Summit.

You do not want to miss PFAS SUMMIT IV, so register and book your hotel room today!

Where: The Riverside Hotel in Fort Lauderdale
When: Friday September 27th – Sunday September 29th

Register and get your room today while there is still time:

Register: Ray Group - Mass Tort Success

Book your room: Riverside Hotel - Fort Lauderdale (travelclick.com) 

CAUSATION UNDER CERCLA 

When CERLA was enacted in 1980, district courts had difficulty believing that Congress intended to turn the Federal Rules of Evidence on their head in these cases, as CERCLA appeared on its face to reduce the burdens of proof normally borne by Plaintiffs as well as shift other elements of proof to defendants completely contract to the established Federal Rules of Evidence. 

Below is a summary of the elements of proof required to succeed in a case under CERCLA 107(a) followed by supporting case law.

Required elements of proof:

  1. The defendant is a facility – A facility is anywhere a hazardous substance is held for any length of time.
  2. The defendant possessed the hazardous substance or similar hazardous substance (same chemical family).
  3. A release or threatened release occurred. A threatened release occurs by possessing the hazardous substance or similar hazardous substance.
  4. It is feasible that the hazardous substance reached the plaintiffs property (water, soil etc.). Plaintiff does not have to prove with specificity how the defendant’s substance reached their property.

For instance, if a well draws from an aquifer that is part of a water exchange with a river from which water is drawn and that river is the receiving water on the defendants NPDES permit, the Plaintiff has met their burden of proof.

If any defendant in a multiple defendant case believes their discharges did not significantly contribute to the plaintiff’s contamination, they must first settle with the plaintiff and then file a claim for contribution under CERCLA 113(f) for contribution from the other defendants. Once any defendant settles with the plaintiff no other defendant can seek contribution under 113(f) , giving defendants a motive to be settled quickly. Even a defendant that believes they were the most significant contributor has a motive to settle first as it prevents defendants that may have contributed to the contamination from brining 113(f) contribution claims against them.

In CERCLA 107(a) (remediation) the plaintiff is not required to prove that a defendant released the subject substance or similar substance nor how that substance reached their effected property or water supply. 

Supporting case law:

United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988) (showing of chemical similarity between hazardous substances released from waste storage facility and chemical waste of defendants who generated and stored chemical waste at the facility suffices to create CERCLA liability), cert. denied, 490 U.S. 1106 (1989);

Shore Realty, 759 F.2d at 1044 (CERCLA § 107(a)(1) "unequivocally imposes strict liability on the current owner of a facility from which there was a release or threat of release, without regard to causation");

United States v. Mottolo, 695 F. Supp. 615, 623 (D.N.H. 1988) (plaintiff need not prove off-site pollution actually caused response costs in order to recover response costs under CERCLA);

United States v. Bliss, 667 F. Supp. 1298, 1309 (E.D. Mo. 1987) (under CERCLA, "traditional tort notions, such as proximate cause, do not apply");

United States v. Stringfellow, 661 F. Supp. 1053, 1060 (C.D. Cal. 1987) (case law and legislative history indicate that CERCLA § 107(a) contains no causation requirement);

United States v. Maryland Bank & Trust Co., 632 F. Supp. 573 (D. Md. 1986) (CERCLA § 107 imposes strict liability without regard to causation); United States v. B. R. Mackay & Sons, Inc., 13 Chem. Waste Lit. Rep. 253, 258 (N.D. Ill. 1986) ("the court has found no case, and defendants have cited none, that arrives at a contrary conclusion: CERCLA section 107(a) does not require proof of causation");

United States v. Tyson, 12 Chem. Waste Lit. Rep. 872, 882 (E.D. Pa. 1986); Picillo, 648 F. Supp. 1283 (CERCLA requires only a minimal causal nexus between the defendant's hazardous waste and the harm caused by the release at a particular site);

United States v. Ottati & Goss, Inc., 630 F. Supp. 1361 (D.N.H. 1985) (generators found liable under CERCLA in light of their failure to show that all their drums had been removed prior to clean-up);

United States v. Conservation Chem. Co., 619 F. Supp. 162, 234 (W.D. Mo. 1985) (a generator whose hazardous substances are treated or disposed of at any site owned or operated by someone other than the generator is liable for response costs incurred with respect to that site);

Missouri v. Independent Petrochemical Corp., 610 F. Supp. 4, 5 (E.D. Mo. 1985) (CERCLA imposes liability upon those who arranged for disposal of released hazardous substances even though a third party ultimately transported the waste to the contaminated site);

Finally, and of great significance in this case, CERCLA imposes strict liability on responsible parties. 42 U.S.C. § 9601(32).[11] See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d at 1150; New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985) ("Congress intended that responsible parties be held strictly liable, even though an explicit provision for strict liability was not included in the compromise. ...") US v. Alcan Aluminum Corp., 964 F. 2d 252 - Court of Appeals, 3rd Circuit 1992 @ 259.

In addition, courts that have addressed this issue have almost uniformly held that CERCLA liability does not depend on the existence of a threshold quantity of a hazardous substance. See, e.g., Amoco Oil Co. v. Borden, Inc., 889 F.2d at 669.

The court of appeals in United States v. Monsanto Co., 858 F.2d 160 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989), extended Shore Realty's analysis to generators of hazardous waste. The court of appeals there rejected a similar argument that the CERCLA plaintiff was required to establish that the waste the defendant generator sent to the facility caused or contributed to the environmental harm, observing that Congress deleted the causation language from CERCLA precisely because it was aware of the difficulties plaintiffs would confront in the multi-generator context if required to prove such a connection. It held, "[i]n deleting causation language from section 107(a), we assume as have many other courts, that Congress knew of the synergistic and migratory capacities of leaking chemical waste, and the technological infeasibility of tracing improperly disposed waste to its source." Id. at 170 (footnote omitted). US v. Alcan Aluminum Corp., 964 F. 2d 252 - Court of Appeals, 3rd Circuit 1992 @265 

That section provides that CERCLA liability "shall be construed to be the standard of liability" under section 311 of the Clean Water Act, 33 U.S.C. § 1321; section 1321 liability is strict. See, e.g., Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 613 (4th Cir.1979).

In this vein, we also reject the Government's argument that a hearing is unnecessary because Alcan has admitted that its emulsion was "commingled" with the other generators' waste: "commingled" waste is not synonymous with "indivisible" harm. We observe that some courts have held that a generator may present evidence that it has paid more than its "fair share" in a contribution proceeding, expressly permitted under 42 U.S.C. § 9613(f)(2). See, e.g., United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir.1989) cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990); United States v. Monsanto, 858 F.2d at 173.



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