The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, is a critical piece of environmental legislation in the United States. Enacted in 1980, CERCLA was designed to address the nation’s growing concern over hazardous waste sites that posed significant risks to public health and the environment. Over the years, it has become a cornerstone of environmental law, and its litigation history continues to evolve. This article will explore CERCLA’s history, purpose, recent case law, the current landscape in Florida, and the practical realities of counseling and representing companies impacted by CERCLA.

History and Purpose of CERCLA

CERCLA was enacted in response to high-profile environmental disasters in the 1970s, such as the Love Canal incident in New York, where thousands of tons of toxic waste were found to have contaminated a residential area. The need for a federal mechanism to deal with such contaminated sites became apparent, and in 1980, CERCLA was signed into law by President Jimmy Carter. The statute’s primary purpose is to provide the federal government with the authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment.

CERCLA empowers the Environmental Protection Agency (EPA) to clean up contaminated sites and recover the costs from responsible parties. To support these efforts, the law established a trust fund, often referred to as the “Superfund,” to finance cleanups when responsible parties cannot be identified or are unable to pay. CERCLA introduced a strict liability framework, meaning that parties responsible for contamination can be held liable regardless of whether they acted negligently. It also established a “polluter pays” principle, where current and past owners, operators, and waste generators can all be held accountable for cleanup costs.

Key Elements of CERCLA

CERCLA’s key provisions focus on:

1. Response Actions: The EPA is authorized to undertake both short-term removals and long-term remediation of hazardous sites.
2. Liability: The law imposes liability on four classes of parties, including current owners and operators of a facility, past owners at the time of disposal, waste generators, and transporters of hazardous substances.
3. National Priorities List (NPL): Sites deemed the most hazardous are placed on the NPL, a roster of locations that require long-term remedial action.
4. Natural Resource Damages (NRD): CERCLA allows for claims to restore or compensate for injury to natural resources, such as land, water, or wildlife, that has been harmed by hazardous substances.
5. Cost Recovery and Contribution: The statute gives the EPA and private parties the right to recover cleanup costs from responsible parties. It also provides a mechanism for parties to seek contribution from other responsible entities, encouraging a shared financial burden for cleanup costs.

Recent Case Law: Trends and Developments

Over the years, CERCLA has been the subject of extensive litigation, with courts interpreting various aspects of the law, particularly concerning liability and contribution. Recent decisions continue to shape the landscape of Superfund litigation. Here are a few notable cases from recent years:

1. Territory of Guam v. United States (2021): In this significant Supreme Court case, the island of Guam sued the U.S. government for contribution under CERCLA to cover the costs of cleaning up the Ordot Dump, a contaminated site used by the U.S. Navy. The U.S. Supreme Court held that a settlement of environmental liabilities must resolve a CERCLA-specific liability to give rise to a CERCLA contribution action. Territory of Guam v. United States, 593 U.S. 310 (2021).
2. Atlantic Richfield Co. v. Christian (2020): The U.S. Supreme Court considered whether landowners within a Superfund site could seek restoration damages under state law that went beyond the EPA-ordered cleanup plan. The U.S. Supreme Court held that CERCLA did not strip Montana courts of jurisdiction over landowners’ action against the owner of the site of a former copper smelter, in which the landowners asserted claims for trespass, nuisance, and strict liability and sought, among other things, restoration damages, notwithstanding CERCLA’s channeling of Superfund claims to federal courts. The Court noted that while CERCLA deprives state courts of jurisdiction over claims brought under the statute, it does not displace state-court jurisdiction over claims brought under other sources of law, and the landowners’ common law claims did not “arise under” CERCLA, but under Montana law, and the CERCLA provision depriving federal courts of jurisdiction over certain challenges to Superfund remedial actions does not, by its own terms, apply to state courts. Atl. Richfield Co. v. Christian, 590 U.S. 1 (2020).
3. Gadsden Indus. Park LLC v. United States (11th Circuit. 2018). The Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act’s (FTCA) waiver of sovereign immunity applied to the FTCA claims of a purchaser of the site of a former steel manufacturing facility that was subject to an environment clean-up project under CERCLA, alleging that United States was liable for conversion of the purchaser’s kish and slag and acted negligently by removing, destroying, discarding or selling the kish and slag. The court reasoned that the EPA has broad discretionary authority under CERCLA to determine the appropriate procedures and means by which to address the release of hazardous substances into the environment, EPA’s discretion is grounded in public policy, there were hazardous substances at the site, and the kish and slag were potential sources of the release or threatened release of hazardous substances. Gadsden Indus. Park LLC v. United States, 756 Fed. Appx. 945 (11th Cir. 2018).

Practical Realities for Law Firms Counseling and Representing Companies Affected by CERCLA

Navigating CERCLA can be a daunting task for law firms representing companies impacted by hazardous waste issues. The complexities of the law, combined with the potential for significant legal and financial consequences, require a thoughtful and strategic approach. Here are several practical considerations when advising companies facing CERCLA issues:

1. Managing Liability and Cost Allocation

One of the first tasks for legal counsel is assessing the scope of the company’s potential liability. CERCLA imposes strict, joint, and several liability, meaning a company could be held responsible for the entire cost of cleanup even if its contribution to the contamination was minimal. This involves investigating the site’s history and determining whether the company falls under one of the PRP categories.

2. Interaction with Regulatory Authorities

Law firms must navigate the complex interactions between companies and regulatory authorities, particularly the EPA. Ensuring compliance with EPA cleanup orders and seeking approval for any additional remedial actions is essential. Attorneys must negotiate consent decrees and understand the intricacies of EPA decision-making.

3. Strategic Planning for Long-Term Liability

Once a company is identified as a PRP, CERCLA obligations can extend over decades, requiring legal counsel to help clients establish reserves or insurance mechanisms to address ongoing liabilities. This also involves considering implications during mergers or acquisitions.

4. Balancing Business Interests with Litigation Risks

CERCLA litigation can be costly and protracted. Law firms must balance the need to protect their client’s legal rights with the potential business impact of litigation. Exploring settlement options early can mitigate risks.

5. Public Relations and Reputation Management

Companies involved in CERCLA cleanups often face public scrutiny. Law firms should work closely with public relations teams to manage public perception and maintain transparency while safeguarding the client’s legal position.

Deep Dive Into Some Case Law

In Territory of Guam v. United States, 593 U.S. 310, 313 (2021), the U.S. Supreme Court considered section 113(f)(3)(B) of the Act, which allows “[a] person who has resolved its liability to the United States or a State” in a settlement to seek “contribution”—that is, money from another responsible individual. The question decided by the Court was whether a party must resolve a CERCLA-specific liability in order to trigger this right, or whether a broader array of settlements involving environmental liability will do. The Court held that CERCLA contribution requires resolution of a CERCLA-specific liability.

Justice Thomas set forth the facts of the case:

Guam and the United States are engaged in a long-running dispute over the Ordot Dump, a “ ‘280-foot mountain of trash’ ” near the center of the island. 950 F.3d 104, 109 (CADC 2020). The Navy constructed the dump in the 1940s, and then allegedly deposited toxic military waste there for several decades. The United States later ceded control of the site to Guam, which itself used the dump as a public landfill. But that did not end the Federal Government’s involvement. In the late 20th century, the Environmental Protection Agency (EPA) determined that the dump posed an ecological hazard. After Guam allegedly failed to comply with agency directives to remediate the site, the EPA sued under the Clean Water Act, asserting that Guam was “ ‘discharging pollutants … into waters of the United States without obtaining a permit.’ ” Ibid.

That litigation ended in 2004, when Guam and the EPA entered into a consent decree. The decree required Guam, among other things, to pay a civil penalty and to close and cover the dump. Guam’s compliance would, in turn, be “in full settlement and satisfaction of the civil judicial claims of the United States … as alleged in the Complaint”—that is, claims under the Clean Water Act. Id., at 116. But Guam was not completely free. As the agreement explained, “the United States d[id] not waive any rights or remedies available to it for any violation by the Government of Guam of federal and territorial laws and regulations,” “[e]xcept as specifically provided [i]n [the decree].” App. to Pet. for Cert. 166a.

Thirteen years later, it was Guam’s turn to sue—this time under CERCLA. According to Guam’s complaint, the United States’ earlier use of the dump exposed it to liability on two fronts. The first was a cost-recovery action under § 107(a), which allows a State (or here, a Territory), to recover “all costs of [a] removal or remedial action” from “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” See also § 101(27). The second was a § 113(f) “contribution” action. Under that provision, a “person who has resolved its liability to the United States … for some or all of a response action or for some or all of the costs of such action in [a] settlement may seek contribution from any person who is not [already] party to a [qualifying] settlement.” § 113(f)(3)(B).

Rather than increase Guam’s odds of recovery, however, the second legal theory led to the dismissal of its complaint. According to the D.C. Circuit, if a party can assert a contribution claim under § 113(f), it cannot assert a cost-recovery claim under § 107(a). See 950 F.3d at 111. The court then determined that Guam possessed a contribution claim—at least at one point—because the remedial measures and conditional release in the Clean Water Act decree sufficiently “ ‘resolved Guam’s liability’ ” for the dump. Id., at 114–117 (brackets omitted). But because the 2004 decree had triggered the since-expired 3-year statute of limitations for contribution actions, Guam had no remedy at all. Id., at 107, 117; see also § 113(g)(3). We granted certiorari. 592 U. S. ––––, 141 S.Ct. 976, 208 L.Ed.2d 510 (2021).

Territory of Guam v. United States, 593 U.S. 310, 313–14 (2021).

The Court held that a settlement must resolve a CERCLA liability to trigger a contribution action under § 113(f)(3)(B). Justice Thomas explained the Court’s reasoning:

Our analysis focuses on the totality of subsection 113(f), which governs the scope of a “contribution” claim under CERCLA. This subsection begins with an anchor provision—entitled “contribution”—that allows “[a]ny person [to] seek contribution from any other person who is liable or potentially liable under section [1]07(a) of [CERCLA], during or following any civil action under section [1]06 of [CERCLA] or under section [1]07(a) of [CERCLA].” § 113(f)(1). It next describes how parties can insulate themselves from contribution, explaining that “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” § 113(f)(2). And finally, it discusses the treatment of “[p]ersons not party to [a] settlement.” § 113(f)(3). Most relevant here, “[a] person who has resolved its liability to the United States … for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in [§ 113(f)(2)].” § 113(f)(3)(B).

Id. at 317. Further:

That this subsection centers on and is entitled “contribution” is the first clue that it is concerned only with the distribution of CERCLA liability. A contribution suit does not exist in a vacuum, but rather is a tool for apportioning the burdens of a predicate “common liability” among the responsible parties. United States v. Atlantic Research Corp., 551 U.S. 128, 138–139, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007); see also Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 86–87, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). The most obvious place to look for that threshold liability is CERCLA’s reticulated statutory matrix of environmental duties and liabilities. Cf. Burlington N. & S. F. R. Co. v. United States, 556 U.S. 599, 610, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (“[Section 107(a)(3)] liability may not extend beyond the limits of the statute itself ”). After all, “[s]tatutes must ‘be read as a whole,’ ” Atlantic Research, 551 U.S. at 135, 127 S.Ct. 2331—an especially salient approach in this case given that CERCLA’s very title reinforces that it is a “Comprehensive” Act.

Remaining within the bounds of CERCLA, said the Court, “is also consistent with the familiar principle that a federal contribution action is virtually always a creature of a specific statutory regime.” Id.; Cf. Northwest Airlines, 451 U.S. at 90–91, 95–97, 101 S.Ct. 1571 (noting a “narrow exception” for admiralty cases). In fact, said the Court, there is no “general federal right to contribution” whatsoever. Id., at 96, 101 S.Ct. 1571; Cf. Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 13–15, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (refusing to “assum[e] that Congress intended to authorize by implication additional judicial remedies for private citizens suing under [two environmental statutes]”). That modest understanding, said the Court, is difficult to reconcile with the United States’ invitation to treat § 113(f)(3)(B) as a free-roving contribution right for a host of environmental liabilities arising under other laws.

Justice Thomas explained:

The interlocking language and structure of the relevant text confirm this understanding. The provision at issue here—§ 113(f)(3)(B)—recognizes a statutory right to contribution in the specific circumstance where a person “has resolved its liability” via “settlement.” But as explained above, this entitlement to postsettlement contribution does not stand alone. On the contrary, § 113(f)(3)(B) exists within “ ‘the specific context’ ” of subsection (f), which outlines the broader workings of CERCLA contribution. Merit Management Group, LP v. FTI Consulting, Inc., 583 U. S. ––––, ––––, 138 S.Ct. 883, 893, 200 L.Ed.2d 183 (2018).

Id. This § 113(f) family of contribution provisions, said the Court, anticipates a predicate CERCLA liability, especially when properly read in “sequenc[e]” as “ ‘integral parts of a whole.’ ” Id.; New Prime Inc. v. Oliveira, 586 U. S. ––––, ––––, 139 S.Ct. 532, 538, 202 L.Ed.2d 536 (2019); see also Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 167, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004) (looking to “the whole of § 113”). The § 113(f)(1) anchor provision, said the Court, is especially clear on this point, allowing contribution “during or following any civil action under §[1]06 of this title or under §[1]07 of this title.” Id.

The Court rejected the government’s other arguments:

Perhaps more important, the Government’s interpretation would place undue stress on the word “resolve.” This term conveys certainty and finality. See Webster’s Third New International Dictionary 1933 (1986) (“make clear or certain”); American Heritage Dictionary 1107 (1981) (“remove or dispel (doubts); … bring to a conclusion”). It would be rather odd to say that a party has “resolved its liability” if that party remains vulnerable to a CERCLA suit. All the more so given that it will not always be clear whether the substance of a prior environmental settlement was sufficiently similar to a quasi-CERCLA “response action.” As even the Government admits, “ ‘response action’ is, indeed, a broad term, [but] it is not an unlimited term [that covers] everything under the sun.” Tr. of Oral Arg. 39–40; cf. 950 F.3d at 116 (comparing Guam’s obligations under the Clean Water Act decree to CERCLA’s “definition of a ‘remedial action’ ”). Rather than requiring parties and courts to estimate whether a prior settlement was close enough to CERCLA, the far simpler approach is to ask whether a settlement expressly discharged a CERCLA liability.

No more persuasive are the United States’ efforts to emphasize the differences among § 113(f)’s provisions. The Government observes that § 113(f)(3)(B)—unlike the § 113(f)(1) anchor provision—does not expressly demand a predicate CERCLA action. That distinction, so the argument goes, implies that a broader range of environmental liabilities can trigger § 113(f)(3)(B). See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ”). But this effort to tear § 113(f)(3)(B) away from its companions based on a negative implication falters in light of the other strong textual links among them. See Marx v. General Revenue Corp., 568 U.S. 371, 381, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009). Section 113(f)(3)(B)’s use of the familiar phrase “response action,” express cross-reference to another CERCLA provision, and placement in the statutory scheme prevent us from so easily severing it from the larger Act.

Similarly unavailing is the Government’s theory that a tightly unified interpretation of these provisions would create surplusage problems. The United States argues, for example, that a reading of § 113(f)(3)(B) that does nothing more than allow a party to seek contribution after settling a CERCLA liability would be redundant with § 113(f)(1), which already permits contribution “during or following any civil action under [§§ 106 and 107].” But there is legitimate reason for separate provisions, even if both allow contribution only for a CERCLA liability. For example, § 113(f)(3)(B) specifies the consequences of a particular type of resolution (i.e., settlement), explaining that an “administrative or judicially approved settlement” is sufficient and reinforcing that a contribution claim will not extend to parties who have already settled. This sort of belt-and-suspenders approach hardly compels an all-encompassing reading of § 113(f)(3)(B). Cf. Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. ––––, ––––, 139 S.Ct. 873, 881, 203 L.Ed.2d 180 (2019) (“We have recognized that some redundancy is hardly unusual in statutes addressing costs” (internal quotation marks omitted)). Rather than try “to avoid surplusage at all costs,” Atlantic Research, 551 U.S. at 137, 127 S.Ct. 2331, we interpret § 113(f)(3)(B) in light of its text and place within a comprehensive statutory scheme.

Territory of Guam v. United States, 593 U.S. 310, 318–20 (2021).

In short, concluded the Court:

The most natural reading of § 113(f)(3)(B) is that a party may seek contribution under CERCLA only after settling a CERCLA-specific liability. We thus reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion

Territory of Guam v. United States, 593 U.S. 310, 320 (2021).

Florida Superfund Status

Florida currently has 52 sites on the National Priorities List. Florida has four sites with Superfund Alternative Approach Agreements.

Over 100 reported decisions have involved CERCLA in Florida. Most recently, in City of Jacksonville, Neighborhood Code Enf’t Div. v. Jacksonville Hosp. Holdings L.P., 24-10145, 2024 WL 2186089 (11th Cir. May 15, 2024), the Eleventh Circuit confronted a case with the following facts:

This case concerns liability for environmental contamination near a gas plant in the City of Jacksonville (the City). The City filed suit against several parties, including Continental, under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9607(a), 9613(g)(2), and Florida Statute § 376.313. Relevant here, there were questions surrounding the gas plant’s successorship. The City’s suit alleged the following: the gas plant’s ownership and operations originated with Jacksonville Gas Company in the early twentieth century; after various mergers and a name change, Jacksonville Gas Company became the Florida Gas Company (FGC); Continental is the successor of FGC; therefore, Continental is liable for the contamination.

In April 2015, Continental filed an amended third-party complaint against numerous third-party defendants, including Houston. Continental alleged that Houston was the true successor to FGC and liable for any contamination. In June, Houston answered and brought counterclaims in return. Then, that November, Continental moved to voluntarily dismiss its third-party complaint against Houston without prejudice pursuant to Rule 41(a)(2). Houston opposed, and a hearing was held on the matter.

The parties disputed the propriety of dismissal. Continental argued, among other things, that it reasonably relied on corporate history documents in bringing its third-party complaint; yet, at that point in litigation, Continental lacked the requisite evidence to satisfy its burden; and Houston incurred minimal costs over the preceding months. Accordingly, Continental claimed it wanted to focus on its case with the City and needed more time to collect evidence against Houston. Houston countered that its dismissal would substantially prejudice its legal interests. Houston further alleged that Continental unreasonably delayed its discovery responses and merely sought to avoid an adverse ruling. Ultimately, the district court denied Continental’s motion:

As to Continental’s Motion to Dismiss the claims against [Houston], Houston objects based upon its position that it would be prejudiced if a successor liability determination was made during the pendency of this litigation without its active participation. The Court agrees that Houston has important interests at stake and will not dismiss the claims against it at this time.

Doc. 204 at 2–3.

In early September 2016, Houston moved for summary judgment against Continental and served it with a motion for sanctions, demanding Continental dismiss it from suit with prejudice. Houston based its motion on discovery evidence that Continental historically represented itself as a successor to FGC and collected millions of dollars in insurance payments. According to Houston, the evidence proved the suit’s frivolity, which Continental attempted to conceal via bad faith motions practice. Later that month, Continental again moved to dismiss Houston without prejudice. Houston objected again, and filed its sanctions motion with the court under 28 U.S.C. § 1927 and the court’s inherent authority.

The following year, the court denied Continental’s second motion to dismiss and granted Houston’s motion for sanctions. Approximately four years later and after a hearing on the sanctions motion, the court entered an order granting Houston approximately $1.5 million in attorneys’ fees and costs. The court found that “not [only] was [Continental’s complaint] frivolous, this was indeed an exceptional case.” Doc. 401 at 11. Pointing to the original sanctions order, the court reiterated that Continental had not only “engaged in some bad faith conduct while prosecuting a legitimate complaint,” but that the “complaint … was brought in bad faith.” Id. at 10. Finally, the court awarded fees under Florida Statute § 376.313(6) in the public interest.

City of Jacksonville, Neighborhood Code Enf’t Div. v. Jacksonville Hosp. Holdings L.P., 24-10145, 2024 WL 2186089, at *1–2 (11th Cir. May 15, 2024).

In City of Jacksonville v. Jacksonville Hosp. Holdings, L.P., 82 F.4th 1031, 1034–35 (11th Cir. 2023), decided a year earlier, the Eleventh Circuit held that it did not have jurisdiction over an appeal by a purported successor-in-interest to the owner and operator of a gas plant from the district court’s denial of its motion to voluntarily dismiss third-party claims against a second purported successor-in-interest in the City of Jacksonville’s action under CERCLA against a purported successor-in-interest and current owners of a property where the gas plant was located. The court reasoned that many parties had purported to voluntarily dismiss their various claims through joint stipulations, but such dismissals were ineffective, because the stipulations did not contain the signatures of all parties who had appeared. The claims, therefore, remained pending before the district court and there was no final judgment on all claims. 

The facts of the case were these:

A truncated history of this litigation may be useful here. This saga began in March 2015, when the City of Jacksonville (the City) filed a second amended complaint to recover costs and damages related to the contamination of soil and groundwater near a gas plant located within its borders. In its complaint, the City alleged that three parties were liable to it under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9607(a), 9613(g)(2), and Florida Statute § 376.313. The three named defendants were Jacksonville Hospitality Holdings L.P. (JHH); Shoppes of Lakeside, Inc. (Shoppes); and Continental.

The parties filed answers and counterclaims. Then, in April 2015, Continental filed an amended third-party complaint against six third-party defendants, including Houston (both Houston Pipe Line Company, L.P. and HPL GP, LLC); Greif, Inc. (Greif); Claude Nolan Cadillac, Inc. (Claude Nolan); JEA f/k/a/ Jacksonville Electric Authority (JEA); and Texaco, Inc. (Texaco). Continental alleged that these third-party defendants were liable for the release of pollutants at the gas plant. Houston lodged counterclaims in return. Then, in May 2015, Continental filed an amended, four-count counterclaim against the City, contending that the City was also liable for the pollution.

Bit by bit, whether through amended complaints, summary judgments, or voluntary dismissals, the claims dropped off. Important for this case, numerous claims were “dismissed” using stipulations of voluntary dismissal under Rule 41(a)(1)(A)(ii). By our tally, the following combinations of parties filed such stipulations: 1) Continental and Texaco (purporting to dismiss Texaco from the action); 2) Continental and Greif (purporting to dismiss Greif from the action); 3) Continental and Claude Nolan (purporting to dismiss Claude Nolan from the action); 4) the City and Shoppes (purporting to dismiss “all remaining claims and defenses against each other in this action”); 5) the City and JHH (purporting to dismiss “all remaining claims and defenses asserted against each other in this action”); 6) the City, Continental, and JEA (purporting to dismiss “all claims, defenses counterclaims, and/or third party complaints against one another”); and 7) Continental and Houston (purporting to dismiss “the Counterclaims filed by [Houston]”). For each of these, fewer than all parties involved in the litigation signed the stipulation. As an example, the stipulation between Continental and Texaco that purported to dismiss Texaco from the case was only signed by those two parties—no other parties added their signatures.¹

City of Jacksonville v. Jacksonville Hosp. Holdings, L.P., 82 F.4th 1031, 1034–35 (11th Cir. 2023).

In City of Jacksonville v. Shoppes of Lakeside, Inc., 3:12-CV-850-HES-MCR, 2021 WL 3932630, at *1–2 (M.D. Fla. Feb. 16, 2021), a federal trial court in the Middle District of Florida considered a case with the following facts:

This case involves contaminated property owned by the City near the former Main Street Manufactured Gas Plant (Gas Plant) which operated from approximately 1874 to approximately 1912 at the southwest corner of Main Street and Orange Street. The relevant site (Site) includes Springfield Park (formerly Confederate Park) and certain right-of-way properties in downtown Jacksonville. The Site is contaminated with Gas Plant waste.

On March 22, 2002, the Florida Department of Environmental Protection (FDEP) and the City entered into a Consent Order, pursuant to which the City agreed to, inter alia, perform a contamination assessment of the Site and prepare a Feasibility Study of potential remediation options. (Doc. 338-2; Tab B). In the Consent Order, FDEP expressly reserved any claims that it may have against the City “criminally or civilly under federal law.” Id. at page 11, paragraph 26. The City submitted a Site Assessment Report to FDEP in May of 2011.

On February 1, 2013, the City, Continental and others entered into a Feasibility Study Participation Agreement (Participation Agreement) regarding potential remediation options. On September 18, 2018, FDEP and the City entered into the Brownfield Rehabilitation Agreement (Rehabilitation Agreement or Agreement), pursuant to Section 376.80(5), Florida Statutes (F.S.)(Doc. 338-10; Tab J, page 3). Under the terms of this Agreement, FDEP and the City agreed the City would conduct “site rehabilitation” of the Springfield Park area. (Doc. 338-10; Tab J, page 3).

The City’s Second Amended Complaint (Complaint) (Doc. 87) seeks cost recovery and declaratory relief against Continental pursuant to CERCLA Sections 107 and 113(g)(2)(42 U.S.C. §§ 9607 and 9613(g)(2)), respectively, as well as Section 376.313, F.S.

Continental’s Amended Counterclaim (Counterclaim)(Doc.125) against the City asserts claims for: (a) cost recovery pursuant to Sections 107 and 113(g)(2) of CERCLA, (b) contribution pursuant to Section 113(f)(1) of CERCLA, and (c) damages as well as contribution pursuant to Section 376.313, F.S.

The Court’s phase one summary judgment Order (Doc. 315) addressed corporate successorship; it found there is no genuine issue of material fact regarding whether Continental is the successor in interest to Jacksonville Gas Company, the entity that owned and operated the Gas Plant.

The Court has also entered summary judgment on a portion of Continental’s Third Party Complaint, which seeks contribution from JEA for remediation costs that the City seeks to recover from Continental. That Order addressed only Continental’s claims against JEA based upon its contention that, inter alia, the City knew Gas Plant waste was deposited from a City owned sewer into Hogan’s Creek in the 1800s. (Doc. 354).

City of Jacksonville v. Shoppes of Lakeside, Inc., 3:12-CV-850-HES-MCR, 2021 WL 3932630, at *1–2 (M.D. Fla. Feb. 16, 2021). Considering cross-motions for summary judgment, the court noted:

“An essential purpose of CERCLA is to place the ultimate responsibility for the clean up of hazardous waste on those responsible for problems caused by the disposal of chemical poison.” Redwing Carriers, Inc. v. Saraland Ants., 94 F.3d 1489, 1501-2 (11th Cir.1996).

To further this purpose, “a bifurcated mechanism was created to promote the cleanup of waste sites, spills and hazardous substances released into the environment…” Bunger v. Hartman, 797 F.Supp. 968, 970 (S.D.Fla.1992). Namely, “[t]he federal government was empowered to respond to environmental hazards through the creation of Superfund, 42 U.S.C. §§ 9604-05, 9611-12, while private parties were permitted to institute actions to recover ‘response costs’ for the cleanup of sites from those responsible for the hazard, 42 U.S.C. § 9607(a).” Id.

The costs of monitoring, assessing, and evaluating a site are recoverable as CERCLA response costs, as defined in 42 U.S.C. § 9601(23). Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209, 1218-19 (3d Cir.1993).

The United States Supreme Court has held that cost recovery under Section 107(a) and contribution under Section 113(f) are two “clearly distinct remedies.” United States v. Atlantic Research Corp., 551 U.S. 128,138–39 (2007).

City of Jacksonville v. Shoppes of Lakeside, Inc., 3:12-CV-850-HES-MCR, 2021 WL 3932630, at *3 (M.D. Fla. Feb. 16, 2021).

The court noted that because the court had previously determined that Continental was the successor in interest to Jacksonville Gas Company, the entity that owned and operated the Gas Plant during its entire operating history, the City maintained that Continental should be found liable for an equitable share of the City’s past response costs, which were deemed necessary by FDEP and related to the remedial investigation. See id.

The court set forth the law:

Under CERCLA’s Section 107, the City must show that: (1) the site in question is a facility as defined by CERCLA; (2) Continental is a potentially responsible party with regard to a release or threatened release; (3) a release or threatened release of a hazardous substance has, in fact, occurred; (4) the release or threatened release caused the City to incur necessary response costs; and (5) these response costs are consistent with the National Contingency Plan (NCP). CERCLA § 107(a); 42 U.S.C.A. § 9607(a).

City of Jacksonville v. Shoppes of Lakeside, Inc., 3:12-CV-850-HES-MCR, 2021 WL 3932630, at *4 (M.D. Fla. Feb. 16, 2021).

There was no dispute, concluded the court, regarding elements one through four; all had clearly been established. Regarding the fifth element, said the court, the City had cited on point case law that it was not required to establish that the site assessment costs it paid were compliant with the NCP. Marriott Corp. v. Simkins Industries, Inc., 825 F. Supp. 1575, 1583 (S.D. Fla. 1993)(“Courts that have addressed the issue of investigatory costs’ consistency with the NCP are in agreement that these costs are recoverable irrespective of their consistency with the NCP.”) Thus, the Court agreed the City had shown the required Section 107 elements. See id.

However, in its cross motion, Continental argued the City could not bring suit under Section 107(a) because it reached a settlement with the state. According to Continental, “[i]n Solutia, Inc. v. McWane, Inc., 672 F.3d 1230 (11th Cir. 2012), the Eleventh Circuit held that a responsible party who has entered into a settlement agreement with the United States or a state government to rehabilitate contaminated property may not sue other responsible parties under Section 107(a); rather, the settling party is limited to suing other potentially responsible parties for contribution under Section 113(f) of CERCLA…” (Doc. 346, p.4)(emphasis in original). Continental characterized the Rehabilitation Agreement as an administrative settlement.

The City acknowledged that the existence of an agreement or settlement which has resolved its CERCLA liability would preclude its right to assert a Section 107(a) claim. The City contended, however, that neither the Rehabilitation Agreement nor the Consent Order actually determined its final liability. The City argued:

In the present matter, the City entered into the Consent Order with FDEP requiring the City, as an owner of a portion of the Site, to investigate the nature and extent of environmental impacts on the City’s property and to prepare a feasibility study of potential cleanup actions for the environmental impacts. Complaint (Doc. No. 87, ¶ 25); Continental’s Answer to City’s Complaint (Doc. No. 91, ¶ 25).

FDEP’s jurisdiction in the Consent Order is limited to Florida law. The Consent Order expressly notes that FDEP “has jurisdiction over the matters addressed in this Consent Order” and references the FDEP’s administrative and enforcement powers regarding the provisions of Chapters 403 and 376, F.S. and the rules promulgated thereunder in the Florida Administrative Code. Consent Order, Paragraph 1. The Consent Order expressly states that the Consent Order does not address and FDEP reserves any claims that it may have against the City “criminally or civilly under federal law.” Consent Order, Paragraph 26.

Thus, the Consent Order could not and does not, “with certainty and finality,” resolve the City’s liability at the Site, as FDEP is free to pursue claims against the City under CERCLA or any other federal law for the matters addressed in the Consent Order. See, e.g., Asarco, 866 F.3d at 1125…

The Rehabilitation Agreement that the City has entered into with FDEP also addresses issues exclusively under Florida law, including Chapters 403 and 376, F.S., and the rules promulgated thereunder. See Rehabilitation Agreement, Second and Fourth Whereas Clauses. In the Rehabilitation Agreement, the City is obligated to conduct site rehabilitation on areas of the Site environmentally impacted from the release of hazardous substances from the [Gas Plant], except for impacts present on property currently owned by another party (JHH). Rehabilitation Agreement, Paragraph 3(b)…

Moreover, paragraph 11 of the Rehabilitation Agreement specifically provides that any party to the Rehabilitation Agreement “may terminate its obligations under the Rehabilitation Agreement at any time upon written notice to the Department and the other [parties]” and that if [other parties] terminate their obligations under it, “the Rehabilitation Agreement is entirely terminated automatically.” Id., Paragraph 11.

Thus, notwithstanding the City’s compliance with the agreement, the Rehabilitation Agreement may be terminated solely by the acts of third parties over whom the City has no control. The ability of any party to the Rehabilitation Agreement to terminate the Rehabilitation Agreement at any time for any reason does not support an interpretation that the Rehabilitation Agreement “decides with certainty and finality” the City’s obligations under…it.

Nor is there any provision in the Rehabilitation Agreement that indicates that the Rehabilitation Agreement relieves any party to the Rehabilitation Agreement of any obligations under any laws other than Chapters 403 and 376, F.S. and the rules promulgated by FDEP thereunder.

Accordingly, the Rehabilitation Agreement does not resolve any of the City’s CERCLA liability. The Rehabilitation Agreement, like the Consent Order, simply is not an agreement that fully resolves any CERCLA claims as to the City. Nor does the Rehabilitation Agreement in any way fully resolve the City’s liability for a response action or costs. As a result, the City’s entry into the Rehabilitation Agreement does not prevent the City from pursuing its CERCLA Section 107(a) claims against Continental.

(Doc. 343, pages 10-12); City of Jacksonville v. Shoppes of Lakeside, Inc., 3:12-CV-850-HES-MCR, 2021 WL 3932630, at *4–5 (M.D. Fla. Feb. 16, 2021).

To support its position that it was required to file a Section 107 case, noted the court, the City first cited Asarco LLC v. Atlantic Richfield Company, 866 F.3d 1108 (9th Cir. 2017). After discussing the approaches used by other Circuits, the Asarco court held that while a non-CERCLA settlement agreement “may form the necessary predicate for a § 113(f)(3)(B) contribution action[,]” a settlement agreement must determine “compliance obligations with certainty and finality” and that an agreement containing, inter alia, a reservation by the government of “any rights, remedies, powers and/or authorities, civil or criminal” does not qualify as an agreement resolving liability under CERCLA Section 113(f)(3)(B)). Id. at 1121-6. To support a contribution action, the agreement must resolve liability for “at least some response actions or costs.” Id. at 1127.

Further, the City pointed out the relevant CERCLA provision itself states that “[a] person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person” that has not otherwise similarly settled its liability. 42 U.S.C. § 9613(f)(3)(B)(emphasis added).

The court examined the text of the two documents and agreed that neither the Consent Order nor the Rehabilitation Agreement conclusively resolved the City’s liability under CERCLA or the City’s liability for a response action or costs at the Site. Further, said the court, the City had cited on point authority to support its position that neither document supports a contribution claim. Consequently, the Court found that there was no genuine issue of material fact regarding whether the City properly brought an action for response costs against Continental pursuant to CERCLA Section 107(a). The City’s motion, therefore, was granted and Continental’s motion was denied as to the Complaint’s Count One. 

Continental also sought summary judgment on Count Two of the Complaint, but its argument, concluded the court, was undeveloped. Continental simply declared that “[b]ecause “[Chapter] 376 of the Florida Statute is interpreted consistently with CERCLA,” the Court should also grant Continental a summary judgment on Count Two of the City’s Complaint. (Doc. 340, pages 9-10). This was the entirety of Continental’s argument and, complained the court, it cited only one case to support its position, Atlanta Gas Light Co. v. UGI Utilities, Inc., Case No. 3:03-cv-614-J-20MMH, 2005 WL 5660476, at *1, n.3 (M.D. Fla. Mar. 22, 2005)(Doc. 340, pages 9-10).

The City argued that the Florida Supreme Court has determined that Section 376.313 provides a private, strict liability cause of action for damages arising in connection with the discharge of pollutants or hazardous substances in violation of Chapter 376. Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So.2d 20 (Fla. 2004). The City asserted its claim in Count Two was, in fact, a claim for damages and attorneys’ fees, as provided in the statute. The City contended that “CERCLA caselaw provides no meaningful interpretation of Florida’s statutory claim for damages and attorney’s fees under Section 376.313, F.S.” (Doc. 343, page 13).

As noted, said the court, Continental’s argument was rudimentary, but to the extent the motion argued the Court should dismiss Count Two based upon Continental’s position that Count One was not legally cognizable, the relief was denied. City of Jacksonville v. Shoppes of Lakeside, Inc., 3:12-CV-850-HES-MCR, 2021 WL 3932630, at *5–6 (M.D. Fla. Feb. 16, 2021).

In Pinares v. United Techs. Corp., 973 F.3d 1254 (11th Cir. 2020), the Eleventh Circuit held that the provision CERCLA that authorizes the tolling of the limitations periods on claims brought under state law for personal injury from exposure to hazardous substances until the date that the plaintiff discovered her injury was caused or contributed to by hazardous substance, or, in the case of minor, on the date the minor reached the age of majority, did not apply to a public liability action brought under the federal Price-Anderson Act by the parents of a daughter who developed brain cancer allegedly due to exposure to radioactive materials in soil excavated from the defendant’s property that was later used as “filler” for the construction and development of the neighborhood where the plaintiffs and daughter resided. The court reasoned that an action brought under the Price-Anderson Act was not an action brought under state law.

Several Florida cases show the intersection between CERCLA and similar Florida state laws. For example, in Lee-Bolton v. Koppers Inc., 319 F.R.D. 346, 351–52 (N.D. Fla. 2017), the case was about the following:

Plaintiffs own residential property in Gainesville, Florida, located near a former wood-treatment facility operated by the Defendants and their predecessors. They filed this putative class action lawsuit claiming that their properties are contaminated as a result of chemical activities at the facility and requesting classwide damages for the cost of remediating the contamination and for the diminished value of their properties due to the stigma of contamination.

Pending before the Court is Plaintiffs’ Motion for Class Certification, ECF No. 778, pursuant to Rule 23 of the Federal Rules of Civil Procedure. Both the motion and the response in opposition are supported by expert testimony. Each side has moved to exclude the others’ experts pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and those motions are also pending. See ECF Nos. 716, 717, 719, 721, 723, 724, 725, 726, 727, 728, and 729. The Court held an eight-day evidentiary hearing on all motions. Now, having fully considered the law, the voluminous record, and the arguments of the parties, the Court rules as follows.

The facts of the case were these:

A. The Koppers Site

From 1916 through 2010, Koppers, Inc. and its predecessors operated a wood treatment facility on a 90–acre parcel of real property located at 200 NW 23rd Avenue in Gainesville, Florida, known as the Koppers Site, which is now owned by Beazer East. The western edge of the Site is adjacent to a residential neighborhood in Gainesville, known as the Stephen Foster neighborhood. At various times over the years, a number of different chemical preservatives were used to pressure treat wood on the Site, including creosote (1916 through 1991), chromate copper arsenate (1936 through 2009), and pentachlorophenal (“PCP”) (1969 through 1987). PCP is known to produce chlorinated dioxins, specifically, polychlorinated dibenzodioxin and polychlorinated dibenzofuran (“PCDD/F”), and is classified as a probable human carcinogen. Pla. Ex. 5 (Health Consultation Report July 2014); Def. Ex. 33.043 (EPA 2011 ROD). As owners and operators of the Koppers Site, Defendants have long known of PCP’s adverse effects. In 1970, Dow Chemical issued an internal report warning Koppers of PCP’s potential health and environmental hazards and of the consequent need to contain dust from its wood treating processes utilizing PCP. See Pla. Ex. 1. Despite the warning, it is undisputed that Koppers treated wood with PCP from 1969 through 1987, and it is also undisputed that soil and groundwater at and surrounding the Koppers Site were contaminated when PCP seeped into the soil and was deposited in unlined lagoons. Just how far off-Site the PCDD/F migrated is at the center of this case.

In 1983, the United States Environmental Protection Agency (“EPA”) designated the Koppers Site as a Superfund Site and placed it on the EPA’s National Priorities List. The EPA began investigating contamination at the Site in 1984 in collaboration with Beazer East, as well as the United States Department of Health and Human Services Agency for Toxic Substances and Disease Registry (“ATSDR”), the FloridaDepartment of Environmental Protection (“FDEP”), and the Florida Department of Health (“FDOH”). In 1990, after approximately six years of investigation, the EPA issued a Record of Decision (“ROD”), finding that chemicals used in the wood-treating activities had migrated into the soil and groundwater on the Site, causing contamination. The EPA required soil excavation at the Site, among other remedial measures. The ROD also recommended continued investigation to evaluate potential off-Site contamination. As a result, throughout the intervening years, various testing campaigns of off-Site soil and dust have been conducted by the EPA, Beazer East, and consultants of the Plaintiffs, as discussed in more detail below, and soil remediation has been completed in a portion of the Stephen Foster neighborhood that is adjacent to the western boundary of the Site.

Lee-Bolton v. Koppers Inc., 319 F.R.D. 346, 351–52 (N.D. Fla. 2017) (emphasis added).

The court noted that:

From 2008 through 2010, Beazer East, in coordination with the EPA, conducted independent off-Site soil testing through an environmental consultant company, Arcadis U.S., Inc. (“Arcadis”), which collected and analyzed the off-Site soil samples for the purpose of determining how far contamination from the Koppers Site may have migrated into the residential neighborhoods surrounding the Site. Arcadis analyzed the samples for TCDD–TEQ values using EPA Method 1613, GC/MS, and determined that within the first 100 feet of the western boundary of the Site, extending into a portion of the Stephen Foster neighborhood, approximately 73% of the residences sampled had TCDD–TEQ toxicity values in soil above Florida’s residential target cleanup level of 7 ppt (GC/MS), but not exceeding EPA limits. The toxicity values of PCDD/F decreased dramatically approximately 100 feet away from the Site, and beyond. Arsenic and creosote were also chemicals attributable to Koppers, but Arcadis’s testing showed that only chlorinated dioxin (PCDD/F) TCDD–TEQ values exceeded state regulatory levels. The Arcadis report included a “chemical fingerprinting” analysis, which showed that “other sources of PCDD/Fs exist in the vicinity of the Site and are influencing TCDD–TEQ concentrations in several off-Site samples.” Def. Ex. 89.010.

The EPA engaged the Gainesville community in its investigative and remedial efforts. The agency interviewed community members, kept them informed of findings through meetings and reports, and notified them of the availability of a technical assistance grant (TAG), which could be used to employ a consultant to educate the community about the issues and also to provide technical reports to the EPA. In 2009, Gainesville community members organized a nonprofit organization called Protect Gainesville’s Citizens, Inc., which obtained a TAG, and in August 2010, used the TAG funding to hire a technical advisor and principal investigator. The group hired Dr. Patricia Cline, an environmental chemist. Dr. Cline provided several independent technical assistance reports to the Gainesville community and to the EPA, explaining the various testing by the agencies and other consultants. In 2010, as discussed further below, representatives of some of the residents in the Stephen Foster neighborhood analyzed indoor dust samples using CALUX and reported TEQ values (CALUX–TEQs) much higher than had been measured in soil (GC/MS TCDD–TEQs). In response to citizen concerns over the possibility that reports of soil contamination were underestimating the potential impact from dust contamination inside homes near the Site, the FDOH formed an Indoor Dioxin Dust Work Group (“Dust Work Group”) to study the issue of dust contamination. The Dust Work Group consisted of various county, state, and federal agency representatives, including Dr. Cline.

Lee-Bolton v. Koppers Inc., 319 F.R.D. 346, 355–56 (N.D. Fla. 2017). Lee-Bolton is a very long opinion worthy of its own article, which I intend to write in the near future, but for now I will note that:

The EPA determined that the Cabot/Koppers Site (consisting of two adjacent companies, the Cabot Carbon Corp. and Koppers) met the criteria for Superfund designation in accordance with the provisions of the Comprehensive Environmental Response, Compensation, Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601–9657, as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”). See Def. Ex. 33 (EPA Record of Decision Summary of Remedial Alternative Selection Feb. 2011). The Superfund National Priorities’ List is a national list of facilities throughout the United States known to have released hazardous substances. Using established criteria, the EPA sets priorities for taking remedial response actions, including investigation and cleanup. See https://www.epa.gov/superfund/superfund-national-priorities-list-npl. Much of the Cabot Carbon/Koppers Site has now been remediated, with some continued groundwater remediation ongoing. The Cabot Carbon portion of the Site, located east of Koppers, was a pine tar and charcoal generation facility that produced liquid solvent products on property zoned for commercial use, and it is now a shopping mall and parking lot for a car dealership. The Koppers portion, zoned industrial, is now vacant.

Lee-Bolton v. Koppers Inc., 319 F.R.D. 346, 352 (N.D. Fla. 2017).

A full discussion of the scope of decisional law that has developed around CERCLA would fill a very long book, or several of them. I will conclude this blog article.

Conclusion

Counseling companies impacted by CERCLA requires not only a deep understanding of environmental law but also a practical approach to liability management, regulatory compliance, and litigation strategy. Law firms must navigate the intersection of legal, business, and public relations considerations to protect their clients’ interests while ensuring environmental obligations are met. Understanding the intricacies of CERCLA, from its history to recent case law and practical realities, is essential for law firms representing companies in this space. As environmental issues become more pressing, effective representation under CERCLA will remain crucial for companies managing hazardous waste liabilities and their long-term legal and financial futures.