Second Circuit applies a low standard of liability in defense motion for summary judgment under CERCLA.

The February 24, 2010 decision by the Second Circuit Court of Appeals in Niargra Mohawk Power Corp. v. Chevron USA, Inc., made it more difficult for defendants in a private contribution action to obtain summary judgment. The court held that the plaintiff did not need to demonstrate the “precise amount of hazardous material” that was discharged by any defendant, nor did it need to prove with certainly that a defendant had actually discharged the hazardous materials, to be able to defeat a motion for summary judgment. Certain defendants had been granted summary judgment by the trial court for a variety of reasons related to plaintiff’s inability to present sufficient evidence. The trial court dismissed clams for NiMo’s failure to demonstrate that the current owner had not engaged in appropriate inquiry when it purchased the property, finding an expert report supporting the contention that another defendant had released hazardous materials at the site was considered “speculative”, insufficient evidence that another had disposed of waste at the site, and lack of evidence of causation as to yet another defendant. The Second Circuit, however, explained that in considering the equitable factors required under Section 113 of CERCLA, the standard of proof required to defeat a motion for summary judgment is low and that “caution is appropriate” when considering a motion to dismiss a PRP from a CERCLA case. The court considered this low standard to be particularly important when dealing with cases that so often involve such a long passage of time. (The plaintiff had owned and operated portions of the property from 1922 to 1951.) The court pointed out, however, that although the dearth of evidence was not sufficient to support summary judgment, many of the factors would be considered in the apportionment phase of the case. This ruling will likely make it more difficult for defendants in the Second Circuit to avoid liability in a CERCLA private contribution case. Since most of these cases are resolved in a complex ADR process, the decision will enhance the potential for parties to resolve matters through ADR or some other form of settlement allocation, as even parties with insignificant exposure will contribute to a settlement to avoid the significant expense of defending a CERCLA case. DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

CATEGORIES: Environmental Law

DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) 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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