CERCLA Ruling in Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc. - U.S. Second Circuit
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CERCLA Ruling in Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc.

Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc., No. 08-3843, involved an action to recover costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The district court granted summary judgment for defendant.

As the court of appeals wrote:  "At the center of this dispute is a contaminated site in Troy, New York -- known as the Water Street Site -- that over the last 100 years has played host to various industrial activities including a coke plant, a steel manufacturing facility, a manufactured gas plant, and a petroleum distribution facility. Each use led to the release or disposal of toxic substances, many subject to liability under CERCLA."

The Second Circuit affirmed in part on the grounds that: 1) allowing plaintiff to proceed under 42 U.S.C. section 107(a) would in effect nullify the Superfund Amendments and Reauthorization Act amendment and abrogate the requirements Congress placed on contribution claims under section 113; and 2) plaintiff did not offer evidence that it incurred costs as to certain disputed areas.  However, the court reversed the judgment in part where: 1) the 2003 Consent Order between plaintiff and the New York State Department of Environmental Conservation qualified as "an administrative or judicially approved settlement" under section 113(f) (3)(B), and thus plaintiff was entitled to seek contribution under CERCLA; and 2) plaintiff introduced evidence that defendant's asphalt facility produced or used hazardous materials that may have been released with the asphalt at issue.

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