New York v. Solvent Chemical Co., Inc.
664 F.3d 22
2d Cir.2011Background
- CERCLA dispute over allocation of response costs for Solvent Site and Olin Hot Spot in Niagara Falls, NY.
- DuPont owned nearby facility; Chlorinated aliphatics and benzenes migrated to Solvent/Olin from DuPont site via groundwater and drainage pathways.
- Solvent and DuPont entered consent decrees with New York; Solvent remedial actions began in 1999 and continue.
- DuPont’s consent decree excluded pollution from its neighboring operations; Solvent sought contribution for its costs under CERCLA after remedial actions.
- District court allocated past response costs and denied a future-cost declaratory judgment; Solvent and DuPont challenged allocations on appeal.
- Second Circuit issued a decision affirming, vacating, reversing, and remanding with respect to allocation and future-declaratory-judgment issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CERCLA §113(f)(3)(B) contribution viability | Solvent: valid under §113(f)(3)(B) despite §113(f)(1) linkage | DuPont: must be §113(f)(1) based claim; not §113(f)(3)(B) | Solvent's §113(f)(3)(B) claim viable; linkage to §113(f)(1) insufficient to defeat |
| District court’s liability determination for DuPont as PRP | DuPont liable as PRP under §107(a) and 101(9) | DuPont argues no operation/control over Solvent/Olin causing pollution | District court correctly found DuPont a PRP for its site-related releases; Bestfoods standard applied |
| Allocation of Olin Hot Spot costs | Solvent seeks higher allocation reflecting its site-driven remedy | DuPont/Olin contend allocation should reflect apportioned contamination | Remand required; district court failed to justify Hot Spot allocation; must reallocate and issue compatible declaratory judgment |
| Exclusion of James Brown testimony | Brown’s testimony links Solvent to broader cleanup costs | Testimony relied on specialized knowledge; improper Rule 701(c) | No abuse of discretion in excluding the portion tying full Creek cleanup to Solvent |
| Application of divisibility/apportionment to CERCLA claims | Divisibility should shape liability | Divisibility inapplicable to §113(f) contribution | Divisibility not applicable to contribution; focus on equitable allocation per §113(f) |
Key Cases Cited
- United States v. Bestfoods, 524 U.S. 51 (1998) (parental liability requires substantial control over facility operations)
- Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90 (2d Cir. 2005) (pleading for cost recovery with erroneous citation still viable)
- Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010) (allocation of liability across sites depends on contamination dynamics)
- Prisco v. A&D Carting Corp., 168 F.3d 593 (2d Cir. 1999) (testing conformity with NCP and cost recovery standards)
- Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988) (pleading standards in CERCLA actions; factual sufficiency over form)