United States Second Circuit

In an action to recover costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), summary judgment for defendants is affirmed in part where: 1) allowing plaintiff to proceed under 42 U.S.C. section 107(a) would in effect nullify the Superfund Amendments and Reauthorization Act amendment and abrogate the requirements Congress placed on contribution claims under section 113; and 2) plaintiff did not offer evidence that it incurred costs as to certain disputed areas. However, the judgment is reversed in part where: 1) the 2003 Consent Order between plaintiff and the New York State Department of Environmental Conservation qualified as "an administrative or judicially approved settlement" under section 113(f) (3)(B), and thus plaintiff was entitled to seek contribution under CERCLA; and 2) plaintiff introduced evidence that defendant's asphalt facility produced or used hazardous materials that may have been released with the asphalt at issue.

Appellate Information

• Argued 06/09/2009
• Decided 02/24/2010
• Published 02/24/2010

Judges

• WESLEY, Circuit Judge:, Before CALABRESI, WESLEY, Circuit Judges, and VITALIANO,District Judge.

Court

• United States Second Circuit

Counsel

• For Appellees:
  
• John T. Parkinson, Syracuse, N.Y. (Thomas R. Lotterman, Robert V. Zener, Milissa A. Murray, Sandra P. Franco, Bingham McCutchen LLP, Washington, DC, on the brief), for Plaintiff-Appellant-Cross-Appellee Niagara Mohawk Power Corporation., Patrick J. Higgins, Powers & Santola, LLP, Albany, NY, for Defendant-Appellee-Cross-Appellant Chevron U.S.A., Inc., Kevin C. Murphy, The Wladis Law Firm, Syracuse, N.Y. (David L. Smiga, on the brief, Pittsburgh, PA), for Defendant-Appellee-Cross-Appellee United States Steel Corporation., Kimberlee S. Parker, Bond, Schoeneck & King, PLLC, Albany, NY, for Defendant-Appellee-Cross-Appellee Portec, Inc.