On September 11, 2014, the Second Circuit issued its decision in New York State Electric & Gas Corp. v. FirstEnergy Corp., No. 11-4143, a CERCLA cost recovery and contribution case arising from the cleanup of coal tar contamination at sixteen manufactured gas plants in New York.  New York State Electric & Gas Corp (“NYSEG”) filed a section 107(a) cost recovery action against FirstEnergy Corporation, alleging FirstEnergy bore liability as a successor to NYSEG’s former parent company.  FirstEnergy brought section 113(f) contribution counterclaims against NYSEG and I.D. Booth, Inc., a current owner of one of the sixteen sites.  The district court found NYSEG could recover under its section 107(a) claims, while FirstEnergy could recover contribution from I.D. Booth.

On appeal, the Second Circuit decided a number of issues.  Among them was whether NYSEG’s award against FirstEnergy could be reduced by a portion of the $20 million NYSEG had received in a prior insurance recovery.  The district court and Second Circuit both found that the “collateral source rule” does not apply in the CERCLA context.  The collateral source rule prevents payments from a collateral source from reducing an otherwise recoverable award.  The district court had held that the collateral source rule was barred by Section 114(b) of CERCLA, 42 U.S.C. § 9614(b).  The $20 million award had been allocated among 38 sites, so the district court reduced NYSEG’s contribution recovery here by 42.1 percent (16/38) of the $20 million award, or $8,421,052.  The Second Circuit affirmed.

If you’ll recall, David Mandelbaum previously discussed the collateral source rule on this blog.  That examination of cases found that courts have generally held that the collateral source rule does not apply in the CERCLA context, but that courts will often apply an equitable analysis to avoid an unfair double recovery.  Here, the Second Circuit found that, although there was no risk of NYSEG obtaining a double recovery, it was within the district court’s “broad discretion” to equitably reduce NYSEG’s recovery based on the insurance recovery.  Accordingly, the Second Circuit seems to endorse an equitable analysis, rather than some mechanical rule, when addressing prior insurance recoveries in CERCLA contribution cases.

In addition, the Court of Appeals held (1) a covenant not to sue did not preclude NYSEG’s cost recovery claims; (2) that there could be no direct liability for a parent that did not sufficiently participate in the activities of the plant during its ownership of the plant; (3) FirstEnergy was liable on a veil piercing theory; (4) NYSEG’s claims were barred as to certain sites by CERCLA’s statute of limitations provision; (5) the district court’s allocation of liability based on total gas production was not in error; (6) the district court did not err by not reducing recovery based on economic benefit of the cleanup or based on delay in cleaning up; and (7) I.D. Booth was not entitled to a third-party defense under section 107(b)(3) because it did not exercise due care with respect to the cleanup, as I.D. Booth caused delays in negotiations and, in turn, the cleanup.

 

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Photo of Caleb Holmes Caleb Holmes

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Caleb has litigated such matters through trial and has also helped clients negotiate and settle matters. He has worked with clients on cases involving a wide variety of contaminants, including but not limited to PCBs, PFAS, and dioxins. Caleb also has broad experience litigating complex commercial litigation, including products liability and mass tort/toxic tort matters. He has a depth of experience with all aspects of discovery, including work with experts, taking and defending depositions, motion practice, trial preparation and settlement negotiation.

Caleb provides practical advice to clients in the acquisition and disposition of businesses and assets and the re-development of brownfield sites. He works with clients to achieve compliance with state-specific voluntary cleanup programs, including Pennsylvania’s Land Recycling Program (Act 2).

Caleb counsels clients on compliance with a broad range of federal and state environmental laws, including RCRA, the Clean Air Act, the Clean Water Act, and a host of other federal and state environmental laws.

In addition to his legal work, Caleb is active in various professional and civic organizations. He is currently serving as the Council’s Secretary for the Pennsylvania Bar Association’s Environmental and Energy Law Section.