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The Three R's Of Remediation: Read, Read, Read

We are getting taken to school by the Sixth Circuit Court of Appeals.

We are being taught the ABC's of CERCLA.

In two cases issued by the Sixth Circuit just before Thanksgiving, GenCorp v. Olin and Village of Milford v. K-H Holding Corp., we get back to the basics.

The two cases are great primers on the federal law of contamination, and are worthwhile reading for anyone involved in litigating CERCLA cases. The GenCorp action is now going on its twelfth year in litigation.

Yes, I said 12 years.

First lesson: these cases just keep going and going.

Second, the relationships that parties devise just defy the imagination. Just read the factual summary in the GenCorp case. If you can remember the twists and turns of that relationship, send me the flowchart you created. Next, what's really interesting about this case is the outcome. Look at it this way: the Court recites that Olin had incurred $65 million in remediation costs, apparently so far. It then finishes the factual summary with this little tidbit - in 1992, Olin began the remediation plan.

Presumably, the property is far from being clean.

The Sixth Circuit went out of its way to give us a short course in CERCLA law. But it sent the case back to the District Court to determine whether Olin will incur future costs, and thus be entitlted to a declaratory relief determination. It said it didn't have enough information in the record.

That may be, but if the Sixth Circuit knows so much about contamination, and the case (and cleanup) has already stretched into 12 years, why wouldn't the Court think that Olin will be spending more money to cleanup the property? Did I miss something in the opinion?

The next case, Village of Milford, is likewise a good primer on CERCLA. But the interesting aspect of this case is its determination that the money spent by attorneys performing non-attorney work, such as investigating the parties who may be PRPs, can be recovered as attorneys fees, an issue that was previously up in the air in the Sixth Circuit.

I know, you're riveted. But, if you practice in the area or work for someone with these problems, this is good stuff.

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Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, December 01, 2004 at 00:05 Comments Closed (0) |
 
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