106 F. Supp. 3d 1015
E.D. Mo.2015Background
- Asarco seeks CERCLA §113(f) contribution from Union Pacific for SEMO site costs; Lone Pine order governs prima facie showing; multiple defendants settled or stipulated liability, narrowing issues to SEMO in St. Francois and Madison Counties; Asarco limited claims to rail ROWs and associated sites, excluding Reynolds/Iron Counties; court addresses evidentiary motions (Daubert, demonstratives, summaries) and the legality of Lone Pine evidentiary process; Union Pacific moves for summary judgment on statute of limitations and related issues, while the court considers notice and relation-back concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CERCLA liability—Is UP a covered person under §107(a)(1)-(4)? | Asarco: UP operated/owned lines and successors liable. | UP: no ownership; ROWs are easements and liability cannot attach. | Yes; Asarco established UP as a current/former owner/operator or successor for §107(a). |
| Is the SEMO ROW a CERCLA 'facility' and were hazardous releases shown? | Asarco: ROWs disposed of mining waste; evidence shows releases. | UP: evidence insufficient or not properly tied to facility concept. | Yes; ROWs qualify as facilities and releases/release threats shown. |
| Was there a release or threatened release of hazardous substances? | Asarco: ballast contained cadmium, lead, zinc with erosion/ leaching causing releases. | UP: contested methodology/ measurability. | Yes; evidence shows releases or threats of release in SEMO. |
| Is Asarco's CERCLA claim time-barred by §113(g)(3)(B) and can relation back save it? | Asarco argues tolling/relates back after bankruptcy settlement. | UP: three-year limit runs from judicial approval; relation back denied. | UP's summary judgment granted; limitations bar applies; amendment not relation-back. |
Key Cases Cited
- In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir.2011) (limited Daubert scrutiny at Lone Pine stage; expert testimony assessed for reliability)
- Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828 (9th Cir.2011) (disallows Lone Pine expert reports lacking proper expertise or causation)
- Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (U.S.2010) (relation back requires notice to new party; mistake as to identity)
- Georgia-Pacific Consumer Prods. LP v. NCR Corp., 980 F.Supp.2d 821 (W.D.Mich.2013) (CERCLA burden can be met by preponderance; no scientific certainty required)
- Johnson v. James Langley Operating Co., Inc., 226 F.3d 957 (8th Cir.2000) (no minimum quantum of evidence required for CERCLA release proof)
- Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726 (8th Cir.1986) (broad facility definition includes dumping sites and disposal areas)