Quote of the Day - An ostrich with its head in the sand is just as blind to opportunity as to disaster”
The Sixth Circuit decided a Kentucky case three days ago that is signifcant because some companies involved in Superfund cleanups have tried to dodge the "pay now" bullet in the past by sticking their heads in the sand.
These companies are known as Recalcitrant PRPs (potentially responsible parties). They reason that by hiding, they can avoid contributing toward cleanup costs.
There's a new sherrif in town. At least in the Sixth Circuit, that is.
Now, it's going to hurt a little more if you hide in Kentucky.
The decision endorses what appears to be a new factor in addition to the six existing "Gore factors" used to determine cleanup contribution.
These factors are named for then-representative Albert Gore, Jr. (D-Tenn.), which were not included in the final version of the law. The (paraphrased) Gore factors include:
(1) distinguishable discharge;
(3) degree of toxicity;
(4) involvement in generation, treatment, transportation, storage or disposal;
(5) degree of care; and,
(6) The degree of cooperation by the parties with Federal, State or local officials to prevent any harm to the public health or the environment.
This last one is quoted in full because it's where the Sixth Circuit added a new factor to the analysis: "cooperation with the government." The law allows courts to consider "equitable factors," which the circuit judges opined was exactly what the trial judge did.
Neville Chemical, who on its website claims "A Tradition of Leadership and Quality" must have missed that line when responding to the USEPA and the lead PRPs. The Court's opinion notes that at least four times Neville was offered the opportunity to cooperate and work out payment for its contribution of 472,000 gallons of wastewater sludge.
And at least four times Neville declined the invitation.
The trial judge Karen Caldwell apparently had enough, and although the parties thought Neville had contributed 4.78% of the contamination by volume, Judge Caldwell slapped Neville with 6%.
Although the dollar amount of the cleanup involved is not in the opinion, Neville's share of the interest attributable on its portion of the cleanup costs (since 1986) was calculated at $298,000.