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Thursday, August 31, 2006
Environment - 3rd Circuit Rules DuPont Can't Get Help From U.S. for Voluntary Cleanup
"3rd Circuit: DuPont Can't Get Help From U.S. for Voluntary Cleanup" is the headline to a story by Sharon P. Duffy in the Legal Intelligencer, via Law.com. Some quotes:
A polluter that voluntarily takes on the duty to clean up a toxic waste site cannot later seek contributions from the federal government -- even if the government itself was also a polluter at the site -- the 3rd U.S. Circuit Court of Appeals has ruled.Here is the 3rd Circuit opinion in E.I. du Pont de Nemours Co. v. United States, via Findlaw.com.But a dissenting judge complained that the majority was relying on two 3rd Circuit precedents that she believes have been effectively overruled by the U.S. Supreme Court, and that a ruling in favor of the government would discourage voluntary cleanups.
"I am concerned that the effect of the majority's opinion will be that parties will be reluctant to engage in voluntary cleanups for fear that they may not be able to obtain contribution," U.S. Circuit Judge Dolores K. Sloviter wrote in her dissent in E.I. du Pont de Nemours Co. v. United States.
"Spills that could be most efficaciously dealt with if cleaned up immediately will remain untouched while parties attempt to settle with the government," Sloviter wrote.
In the suit, three companies -- DuPont, Conoco Inc. and Sporting Goods Properties Inc. -- sought contributions from the government for cleanups at 15 sites.
Each of the sites was owned or operated by the United States at various times during World War I, World War II and the Korean War, the suit said, during which time the United States was responsible for some contamination.
But U.S. District Judge William J. Martini of the District of New Jersey granted summary judgment in favor of the government, holding that a "responsible party" that conducts a voluntary, unsupervised cleanup cannot assert a claim for contribution.
On appeal, lawyers for the three companies urged the 3rd Circuit to reconsider two of its environmental law precedents -- New Castle County v. Halliburton NUS Corp. and In re Matter of Reading Co. -- in light of the U.S. Supreme Court's 2004 decision in Cooper Industries Inc. v. Aviall Services Inc.
But Circuit Judge Thomas L. Ambro, in an opinion joined by visiting Judge Paul R. Michel of the U.S. Court of Appeals for the Federal Circuit, found that both of the 3rd Circuit's decisions remain good law and are consistent with the intent of Congress.
"Cooper Industries did not explicitly or implicitly overrule our precedents; indeed, the Supreme Court expressly declined to consider the very questions at issue here," Ambro wrote. * * *
But in dissent, Sloviter said she agreed with DuPont's argument that Copper Industries is an "intervening authority" that forces the 3rd Circuit to reconsider its precedents.
"Cooper Industries weakens the conceptual underpinnings of our decisions in Reading and New Castle County. For that reason, and because our holdings in Reading and New Castle County cannot be reconciled with the policies Congress sought to encourage when it enacted CERCLA, I believe this court can and should reconsider those opinions," Sloviter wrote.
Sloviter noted that two other federal circuits have done exactly what DuPont urged the 3rd Circuit to do.
In decisions from the 2nd and 8th circuits, Sloviter said, unanimous three-judge panels concluded that, in light of Cooper Industries, courts must now allow responsible parties to seek contribution from other responsible parties under ยง107.
Sloviter said she would have followed her sister circuits because their decisions promote the goals of Congress.
"I believe that permitting parties who voluntarily incur cleanup costs to bring suit under Section 107 comports with the fundamental purposes of CERCLA," Sloviter wrote.
Posted by Marcia Oddi on August 31, 2006 06:45 AM
Posted to Environment