9th Circ. CERCLA Ruling Puts Focus on Prior Settlements
Atlanta partner Doug Henderson was quoted extensively in an April 10 Law360 article about the recent Ninth Circuit decision in AmeriPride Services, Inc. v. Texas Eastern Overseas, Inc., which involved a party’s efforts to recover both cleanup costs and third-party settlement costs in a CERCLA cost recovery action.
According to the Ninth Circuit, a CERCLA plaintiff may be able to seek contribution for actual cleanup costs and for third-party settlement costs, but they will have to show those third party settlements complied with the requirements of the National Contingency Plan, a separate legal hoop under CERCLA. According to the article, the Ninth Circuit’s decision may force judges and attorneys to deconstruct past settlements at CERCLA sites to see if the payments for those third-party settlements would meet the requirements for all cleanup costs to be consistent with the National Consistency Plan.
In the article, Doug was quoted as saying that, “[t]he Ninth Circuit ruling underscores that CERCLA litigation can be a real challenge in trying to figure out which costs are recoverable and which are not.” In evaluating whether third-party settlements will be recoverable under CERCLA, Doug observed “attorneys and judges are going to have to get into the details about whether a dumpster load of impacted soil or a particular groundwater cleanup was necessary and consistent with NCP and disaggregate those costs.”