January 29, 2022

Volume XII, Number 29

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January 28, 2022

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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.).

PDF of Order Adopting Report and Recommendation, March 28, 2013

PDF of Report and Recommendation, February 27, 2013

© 2022 Beveridge & Diamond PC National Law Review, Volume III, Number 124
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About this Author

Karen M. Hansen Water Regulation Attorney Beveridge & Diamond Austin, TX
Principal

Karen Hanson’s practice focuses on the Clean Water Act and state programs for regulating and permitting water discharges and water supply/use, and on environmental, health, and safety audit review and implementation. 

She has extensive experience assisting industrial and municipal clients in preparing strategies for and pursuing water permits for ongoing operations, expansions and new operations, including permit challenges. Karen also represents clients that must defend CWA and state water law enforcement actions, including claims pursued by governmental as well as third party...

512-391-8005
Madeleine Boyer Environmental Attorney Beveridge Diamond
Principal

Maddie brings 25 years of experience providing strategic and solutions-oriented counseling and representation on a broad range of US and Latin American environmental, health and safety standards.

Her portfolio includes environmental regulatory counseling; audit oversight and support; supply chain and product stewardship advocacy and compliance; and high-stakes enforcement matters. Her domestic caseload currently includes air and waste matters before the US Department of Justice, the Office of the Attorney General of the State of Texas, the US Environmental...

512-391-8010
Laura L. LaValle Clean Air Act Attorney Beveridge & Diamond Austin, TX
Office Managing Principal

Laura's practice has focused on Clean Air Act matters for over 20 years.

Laura's air quality experience includes advising and representing entities on a broad range of permitting, compliance, and policy issues. She has represented chemical manufacturing operations, electric utilities, petroleum refineries, oil and gas pipelines and terminal facilities, alternative/renewable energy operations including solar energy projects, landfills and waste combustors, steel manufacturing facilities, mining operations, and other facility types regarding federal and state permitting and compliance...

512-391-8020
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