The 2nd Circuit U.S. Court of Appeals ruled that the landowner had fulfilled all its responsibilities under the Superfund law — officially called the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA.
The decision apparently leaves the subcontractor that hauled away the contaminated soil out of luck.
Here’s what happened, according to legal documents:
Norampac Industries Inc. discovered that property it owned in Cheektowaga, near Buffalo, was polluted with lead and other contaminants. It negotiated a brownfield cleanup agreement with the New York Department of Environmental Conservation in 2006.
Company lawyer John Horn of Buffalo said the property known as the N.L. Industries site had been used for brass foundry and smelting operations and for processing an alloy of tin, copper and antimony from 1892 until 1972.
“These activities caused the contamination long before Norampac purchased the property,” Horn said.
Norampac hired AAA Environmental Inc. to do the remedial work, including excavation and removal of contaminated soil. AAA subcontracted with Price Trucking Corp. to transport the soil to licensed disposal facilities.
Work began in October 2007 and ended in September 2008 The state agency approved completion of the cleanup in 2009.
Norampac paid AAA between $3 and $4 million, as well as making some payments directly to Price to ensure that the project was completed, according to court documents.
However, when AAA — which is now defunct — failed to pay Price what it owed, the trucking company sued, claiming Norampac should pay it $631,000 plus interest.
A lower court judge sided with Price, but the appeals court disagreed.
“Norampac has undisputedly accepted responsibility for the cleanup, has seen that the operation is completed and has shouldered the costs of removing contaminated soil through its payments to AAA Environmental and direct payments to Price Trucking,” appeals Judge Robert Sack wrote in the court’s unanimous opinion. “In other words, Norampac has already borne the cost of its actions.
“CERCLA’s purposes are served when landowners and others who profit from hazardous activities are made to bear the costs of accidents on their land,” the court said. And making Norampac pay twice would “push the terms of CERCLA beyond their intended assignment of responsibilities.”
As for the hole in the trucking company’s wallet, the court said although that Price can use — and has used — New York law state laws meant to protect subcontractors to try to recover what it’s owed.
However, it said, the situation “falls outside the scope of Congress’s concern” in passing the Superfund law.
Horn, the Norampac lawyer, said, “The decision is important because it provides responsible parties greater certainty and predictability around their cleanup costs. In so doing, it advances the primary objective of CERCLA: early and complete cleanup by the parties responsible for performing it.”
He said Norampac still owns the site that is operated by its affiliate, Cascades Recovery. Cascades specializes in waste management, especially recyclable materials.
Price’s lawyer, Kevin Hogan of Buffalo, said he’s not authorized to discuss the case.