Between the 1970s and 1980s, there was a growing concern over the hazardous waste at abandoned sites nationwide. In particular, the Love Canal Disaster stirred concern as toxic chemicals from a landfill contaminated soil, groundwater, and homes. In 1978, President Jimmy Carter ordered the relocation of families in the area with the help of the Federal Emergency Management Agency (“From Superfund”, 2020). The severity of the contamination from the Love Canal Disaster, both economically and environmentally, propelled Congress to pass CERCLA in 1980 to regulate the disposal of hazardous waste (“From Superfund”, 2020). As a way of strengthening the provision under CERCLA, the EPA was authorized to identify and clean up contaminated sites and granted the power to respond to potential health threats from the release of hazardous substances. 

Under CERCLA, there are four categories of individuals who are considered potentially responsible parties (PRPs). These include the current and past owners and operators of a vessel or facility where hazardous substances are released. As well as any entities that arranged waste disposal and transporters who selected disposal sites.

Furthermore, CERCLA provides two types of cleanup actions. The first one is short-term removals for immediate threats like chemical spills. The second type concerns long-term remedial actions for severe contamination at locations on the National Priorities List. All cleanup plans under CERCLA must follow the National Contingency Plan (NCP), the federal guidelines for preparedness, response, and removal actions.

Additionally, liability under CERCLA is: 1) strict; 2) retroactive; and 3) typically joint and several. Notably, CERCLA does not automatically mandate joint and several liability, however, the courts have traditionally imposed it (Kirsch, p.10). As a result, all potentially responsible parties bear the brunt of the cleanup costs when the harm cannot be divided accurately. When harm is divisible, the court may allow apportionment, but this is rare. Joint and several liability is particularly useful for the government as it allows it to recover costs even if some PRPs cannot be found. 

In regard to funding these cleanup costs, CERCLA would tax the chemical and petroleum industries. This tax ended in 1995, and since then, the funds have been used to cover cleanup costs when PRPs cannot be found. Congress later passed the 1986 Superfund Amendments and Reauthorization Act (SARA) to mandate the EPA to inform communities about cleanup plans and receive feedback (“From Superfund”, 2020). 

Works Cited

Kirsch, Laurence, and John Raffetto. Federal Environmental Liability under CERCLA and RCRA, www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/408778006/chap1-5350266.pdf. Accessed 5 May 2025.

(May 2, 2020 Saturday). From Superfund to Brownfields: An Environmental Success Story, 40 Years in the Making. Impact News Service. https://advance.lexis.com/api/document?collection=news&id=urn%3acontentItem%3a5YTR-11F1-JDG9-Y238-00000-00&context=1519360&identityprofileid=GZVX8R51690.

Link to the case: https://scholar.google.com/scholar_case?case=11061588206830814355&q=APL+Co.+Pte.+Ltd.+v.+Kemira+Water+Solutions,+Inc.,+999+F.+Supp.+2d+590&hl=en&as_sdt=2006&as_vis=1

Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap103-subchapI-sec9607&collectionCode=USCODE

Please note that the following brief was prepared by a student.

Heading: APL Co. Pte. Ltd. v. Kemira Water Solutions, Inc., 999 F. Supp. 2d 590

Parties: The plaintiffs are APL Co. Pte. Ltd. ("APL") and its insurers. APL is a global transportation and logistics company that is the carrier of hazardous cargo. The defendant is Kemira Water Solutions, Inc. ("Kemira"), the end purchaser and consignee of the ferrous chloride. Fairyland Envitech Co. Ltd. ("Fairyland"), a Taiwanese company, was the supplier of the ferrous chloride. Fairyland could not be located and thus is not a party to the judgment in this case.

Facts: On August 3, 2006, Kemira and Fairyland entered into a purchase agreement under which Kemira agreed to purchase ferrous chloride crystal from Fairyland, and Fairyland agreed to ship the chemical from Taiwan to California. Kemira had contracted Fairyland to purchase the ferrous chloride and directed Fairyland to use bottom-unloading bulk bags to transport the ferrous chloride crystals in the purchase agreement. The purchase agreement directed Fairyland on how to package and ship the ferrous chloride crystal. APL was the carrier of the two ferrous chloride crystal shipments aboard the Hyundai Independence and the APL Singapore. In the fall of 2006, the bags leaked while being transported aboard. The Hyundai Independence was carrying 22 containers of ferrous chloride crystal, shipped in 412 separate bags. Whereas, the APL Singapore was carrying 29 containers of ferrous chloride crystal, shipped in 530 separate bags. The leakage of ferrous chloride crystals from the bulk bags had contaminated the containers, ships, and ports where they were discharged. Ferrous chloride crystal is a hazardous chemical classified as "Class 8: Corrosive" under the International Maritime Dangerous Goods ("IMDG") Code. Cleanup and response efforts lasted more than seven months, and APL incurred $5,020,169.88 in cleanup and response costs over the leakage.

Procedural History: On August 27, 2009, APL and its insurers filed an admiralty and maritime action in the Northern District of California against Kemira and Fairyland for breach of contract, negligence, and recovery under CERCLA. APL and its insurers filed against Kemira because they incurred cleanup and response costs as a result of ferrous chloride crystal leakage from the two shipments. The case was then transferred to the Southern District of New York in 2011 and then transferred to the undersigned on November 8, 2011. On August 22, 2012, this Court granted Kemira summary judgment on APL's breach of contract and negligence claims but not on APL's CERCLA claim.  

Legal Issue: Is Kemira Water Solutions liable under 42 U.S.C. § 9607, a provision of CERCLA, for reimbursing APL for response costs over the leakage of the ferrous chloride crystals?

Holding: Yes, Kemira Water Solutions is liable under 42 U.S.C. §9607 for reimbursing APL for response costs over the leakage of the ferrous chloride crystals as the following criteria is true: 1) there was a threatened release of hazardous materials at a facility; 2) APL incurred response costs; 3) the response costs were necessary and consistent with the NCP; 4) Kemira fits the the criteria of a potentially responsible party.

Reasoning: In the August 22, 2012, summary judgment decision, the court found criteria one and four to be true. To reiterate, the court found that the bulk bags being used to package and ship the ferrous chloride crystals were the site and thus “facility” of the release or threatened release of hazardous materials (p. 618). In that summary judgment, the court also found that Kemira fit the definition of an operator, an entity at least directing or influencing how waste is disposed of or handled, under 42 U.S.C. § 9607(a)(3). The court referenced how Kemira outlined the shipping and packaging instructions for the ferrous chloride crystals in Schedule A of the Purchase Agreement (p. 598). The court then used this Schedule A to establish that Kemira had “by contract” arranged for the “transport for treatment of hazardous materials” and therefore had influence, albeit not physical control, over the transport of the ferrous chloride crystals. With the operator definition being fulfilled, the court established that Kemira was a potentially responsible party under the provision 42 U.S.C. § 9607 of CERCLA.

Concerning the second criterion, the court held, without any dispute, that there were response costs as the facts of the case indicate that APL spent over 5 million dollars responding to the toxic leakage. To reason the third criterion, the court explained how “necessary” response costs are not just those that “contain” and “clean up” hazardous releases but also any costs associated with “investigation, planning, and remedial design” (p. 619). The court initially found that since APL's decisions over cleanup and response operations descended from a thoughtful analysis and consensus among a diverse group of experienced professionals, the costs were not wasteful and cost-effective. Furthermore, the court noted that the APL and its contractors had focused on mitigating the threat to human health, and thus made necessary expenses by: 1) taking action in a reasonable, timely manner when the ferrous chloride leaked on the vessel, the ports, and then the containment; 2) repacking the ferrous chloride and attempting to deliver it to Kemira to get rid of chemicals from the terminal and reduce harm for people (p. 620). It is to be noted that the defendant summoned, Dr. Dagdigian, an expert as to the adequacy and reasonableness of the cleanup and response efforts for both shipments of ferrous chloride under CERCLA. However, his testimony lacked experience relevant to the facts, had an incomplete understanding of the factual record, and provided alternative cleanup approaches that were speculative (p.622). As a result of the cost-effective, caring, and meticulous response undertaken by APL, as well as the insufficient evidence from the defendant, the court deemed APL’s response costs necessary and consistent with the NCP.

Ultimately, the court succinctly references 42 U.S.C. § 9607(a)(4)(b), which states that PRPs shall be held liable for “necessary costs of response incurred by any other person consistent with the national contingency plan”. Using this provision, and having proven all the four aforementioned criteria, the court held that the APL, even as a PRP, can seek reimbursement from Kemira, a proven PRP, over the response costs incurred over the threatened release of ferrous chloride crystals at a facility as these costs abide by the National Contingency Plan.

Dissenting Opinion: None

Link to the case: https://law.justia.com/cases/federal/district-courts/FSupp/856/153/1681573/

Link to the United States Code (2024 edition):

https://www.govinfo.gov/app/details/USCODE-2024-title42/USCODE-2024-title42-chap103-subchapI-sec9607

Please note that the following brief was prepared by a student.

Heading:

1.  Plaintiffs

The plaintiffs were the State of New York and Thomas C. Jorling, as trustee of New York’s natural resources. 

2. Defendants 

The principal defendants relevant here were Lashins Arcade Company and Lashins Arcade Corporation, the current owners of the Bedford Village Shopping Arcade property. 

3.  Court 

United States Court of Appeals for the Second Circuit. 

Facts 

The Bedford Village Shopping Arcade in Westchester County in State of New York, housed dry-cleaning businesses from the 1950s through 1971. During that period, dry-cleaning wastes containing PCE and related chemicals were dumped outside the Arcade, which contaminated groundwater. Lashins purchased the property in 1987, long after the dry cleaners had ceased operating. Before the purchase, Lashins learned that the property had a water filter and that chemicals were present in the ground, but was told that the problem was part of a broader groundwater issue and that a nearby gas station was the suspected source. After acquisition, Lashins maintained the filter, monitored water quality, instructed tenants not to discharge hazardous substances, included that restriction in leases, and inspected tenant spaces for compliance. 

Procedural History 

New York sued Lashins under CERCLA § 107(a), state nuisance law, and related theories to recover investigation and cleanup costs. The district court found that New York had established a prima facie CERCLA case against Lashins as a current owner, but granted summary judgment for Lashins under the third-party defense in 42 U.S.C. § 9607(b)(3). New York appealed. The Second Circuit affirmed.

Legal Issue 

Under 42 U.S.C. § 9607(b)(3), can a current landowner who is otherwise liable under CERCLA § 107(a) establish the third-party defense when the contamination was caused by prior dry-cleaning operators?

Holding 

Yes, Lashins could invoke the third-party defense under 42 U.S.C. § 9607(b)(3).

Reasoning 

The court interpreted 42 U.S.C. § 9607(b)(3) as requiring more than the mere existence of a contractual relationship to defeat the third-party defense. Relying on Westwood PharmaceuticalsThe court reasoned that a contractual relationship bars the defense only when the contract is connected to the handling of hazardous substances or gives the defendant control over the third party’s polluting activities. Lashins’ ordinary purchase contract with Baygell did neither, so the contractual-relationship bar did not apply.

The court then interpreted the statute’s due-care requirement in light of “all relevant facts and circumstances.” Because the dry-cleaning releases occurred more than 15  years before Lashins bought the Arcade, Lashins could not have prevented the original disposal. The court has also rejected New York’s argument that Lashins had to duplicate or pay for the government’s ongoing investigation in order to show due care. The court instead concluded that Lashins had done enough. By installing and maintaining a water filter, keeping an eye on water quality, limiting what tenants could discharge, and regularly inspecting tenant spaces, Lashins acted reasonably given the circumstances.

 Thus, the court treated 42 U.S.C. § 9607(b)(3) as a narrow but available defense for a landowner who did not cause or control the contamination and who took reasonable steps after learning of the problem.

Dissent 

There was no dissenting opinion.