Remaining defendant is liable for past costs not covered by CERCLA consent decree.

In U.S. v. Iron Mountain Mines, the U.S. District Court for the Eastern District of California granted summary judgment to the plaintiffs against Iron Mountain Mines and T.W. Arman for past costs which had not been resolved in a consent decree in which claims against other PRPs at the Iron Mountain Mines Superfund Site were settled. The plaintiffs had previously settled with the other PRPs for approximately $154 million of insurance to cover future cleanup costs over 30 years, $10 million for natural resource damages, and an additional $7 million for future clean up not covered by the insurance. The defendants argued that the settlement amounts well exceeded the $26 million in past costs that had been incurred prior to February 29, 1996 which were being sought from them, therefore providing plaintiffs complete recovery. Defendants argued, further, that it would not be known until after the 30 year period for payment of cleanup under the insurance policy whether the plaintiffs would not be made whole. The plaintiffs argued that no money had been received for the past costs. The Court agreed with the plaintiffs, finding that the consent decree did not address past costs, but only future remedial costs and NRD. Since Section 113(f)(3) of CERCLA permits suit against non-settling responsible parties if the relief obtained in a settlement was not complete, the Court held for the plaintiffs. This decision points to the essential need for a party to be informed in every step in the negotiation of a settlement, particularly if they are not a party to the settlement. As in the recent decisions of the 9t Circuit, U.S. v Aerojet, and the 10th Circuit, U.S. v Albert Investment Co., it s important to take an active position, and where appropriate move to intervene, on a motion or action to approve a CERCLA consent decree. Indeed, it has been acknowledged that CERCLA can impose harsh results on non-settling PRPs. See, United States v. Davis, 261 F. 3d. 1, 28 (1st Cir. 2001). DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum PC ( is a full service law firm in New Jersey which provides a broad range of legal services. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

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