March 30, 2020 Practice Points

Court Grants Summary Judgment in Favor of Two CERCLA Contribution Defendants

The Lammers Barrel decision provides an interesting analysis of areas that one might normally consider prone to factual disputes.

By James P. Ray

The District Court for the Southern District of Ohio granted summary judgment to two defendants facing Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution claims from the PRP Group at the Lammers Barrel Factory Superfund Site in Beavercreek, Ohio. Lammers Barrel PRP Group v. Carboline Co., Case No. 3-17-cv-00135 (S.D. Ohio Mar. 27, 2020).

The Lammers Barrel site is a former solvent reclamation and barrel reconditioning site now listed on the National Priorities List. Since about 2002, the plaintiff Lammers Barrel PRP Group had been performing the Remedial Investigation (RI) at the site. The U.S. Environmental Protection Agency (EPA) approved the RI in 2008. In 2011 the EPA approved the Feasibility Study (FS) for Operable Unit (OU) 1, defined as on-site soil and groundwater contamination. The EPA selected a remedy for OU-1 in its record of decision issued later in 2011. The PRP Group signed a consent decree in 2014 to conduct the remedial design (RD) and perform the remedial action (RA) for the OU-1 remedy. The PRP Group also continues to work on the FS for Operable Unit 2, defined as off-site groundwater contamination.

In 2017, the PRP Group filed a CERCLA contribution action against several defendants, including Dayton Industrial Drum, Inc. (DID) and Worthington Industries, Inc., the two defendants whose motions were the subject of this decision. In 2019, DID signed a consent decree with the EPA, agreeing to pay the EPA $825,000, which was placed in two Lammers Barrel Special Accounts, one for the site in general ($762,000) and one specifically for OU-2 ($63,000). In exchange, DID received contribution protection for “matters addressed,” defined as “the OU2 RD/RA costs.” DID was not protected from claims for past costs associated with the PRP Group’s RI/FS work or the OU-1 RD/RA.

Following entry of the DID consent decree, DID moved for summary judgment, claiming that it had paid “well beyond” its fair share of response costs at the site. DID claimed, and the plaintiff did not dispute, that the total amount of common liability for past costs and future OU-1 RD/RA costs was about $10.4 million. DID also pointed out that the plaintiff’s allocation expert had assigned DID a share of 2.05 percent. DID argued that it had therefore paid more than its fair share, given that its settlement payment to the EPA placed in the general site special account ($762,000) was 7.3 percent of the undisputed total common response costs at issue, substantially more than the plaintiff’s proposed 2.05 percent share.

The court agreed with DID, first finding that the plaintiff could not establish that DID had not paid its fair and equitable share of response costs. The court was persuaded by the fact that DID, in arguing that it had paid more than its fair share, adopted the plaintiff’s proposed allocation. The court also rejected the plaintiff’s argument that DID’s share should be increased because of “recalcitrance,” finding no evidence of “evasive or untruthful conduct.”

The court also granted summary judgment in favor of Worthington Industries, finding that the plaintiff had failed to present a prima facie case given that lack of evidence that Worthington sent hazardous substances to the site. There was undisputed evidence that Worthington shipped drums to the site, but the only evidence about the contents of the drums was testimony that they contained “dirty solvents.” The court held that “because Plaintiff has presented no expert testimony identifying whether the ‘dirty solvents’ were, in fact, ‘hazardous substances,’ it has failed to establish that Defendant is liable as an arranger.”

The Lammers Barrel decision provides an interesting analysis of areas (allocation, contents of drums) that one might normally consider prone to factual disputes.

James P. Ray is a partner with Robinson & Cole LLP in Hartford, Connecticut.


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