Texas Federal Court Dismisses Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Contribution Claimed Based on Alleged “Re-Contamination” of Former Superfund Site
On March 28, a Texas federal court granted summary judgment to the purchasers of part of a former Superfund site in Port Arthur, Texas, on a contribution claim brought by the sellers under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
The former owners of the State Marine Superfund site, Chester L. Slay and several affiliated trusts (the "Slay Parties"), had been sued by the United States in an action seeking environmental cleanup costs under CERCLA § 107. The Slay Parties in turn sued the purchasers (various affiliates of New Birmingham Resources, Inc., or "NBR"), claiming that although the site had been remediated prior to the sale, NBR had "re-contaminated" it by dredging contaminated soil in front of the property, thus exposing the Slay Parties to potential additional CERCLA cleanup costs.
The court dismissed the Slay Parties’ claim, holding that they had failed to establish that NBR was liable or potentially liable under CERCLA § 107(a), a prerequisite for establishing a contribution claim under CERCLA § 113(f)(1). Of the four elements required to establish a prima facie claim under § 107(a), the Slay Parties could not establish three. First, NBR was not a "potentially responsible party" under CERCLA because, among other things, it acquired the property after completion of cleanup activities by the U.S. Environmental Protection Agency and the Texas Commission on Environmental Quality. Second, there was no evidence of a release or threatened release of a hazardous substance at the site after NBR’s acquisition. Finally, because there had been no release or threatened release, the Slay Parties could not have incurred any cleanup costs as a result.
The case is United States v. Slay, No. 1:11-cv-263 (E.D. Tex.).