MD Client Prevails in CERCLA Ruling

 

In the case Ashtabula River Cooperating Group II (ARCG II) v. Conrail, et al., 549 F. Supp. 2d 981 (N.D.Oh. 2008) McMahon DeGulis represented several railroad entities, including Norfolk Southern, Conrail and CSX in a CERCLA cost recovery action.  The ARCG II v. Conrail matter concerned the costs of dredging of the Ashtabula River pursuant to the Great Lakes Legacy Act and Water Resources Development Act. 

 

The Great Lakes Legacy Act provides for mixed private/public funding for contaminated sediment dredging. The Water Resources Development Act is the statutory basis for Army Corps of Engineers dredging.

 

On April 14, 2008, Judge Gaughan of the Northern District of Ohio granted a Motion to Dismiss several causes of action under Ohio Common Law and CERCLA Section 114(b) in the ARCG II v. Conrail case.  This Motion was favorable to the Railroad Defendants.

 

To provide background, the Ashtabula River has been contaminated for decades because of historical industrial operations.

 

In 2007, several PRPs which funded the private portion of the Great Lakes Legacy Act dredging filed a CERCLA 107(a) and Ohio Common Law action against several railroads including Conrail, which had operations along the Ashtabula River.

 

In its complaint, the ARCG II, which is comprised of 14 individual companies, sought recovery of response costs under Section 107 and also sought damages under a public nuisance theory.

 

In response, Conrail filed a Motion to Dismiss by asserting that CERCLA 114(b) preempted an identically worded cause of action under Ohio Common Law.  In addition, Conrail argued that the "public nuisance" cause of action failed because of the four year statute of limitations under ORC 2305.09(D) and the statutory prerequisites were not met.

 

In her decision, Judge Gaughan determined that the four year statute of limitations barred the nuisance claims alleged by ARCG II because the complaint did not specifically plead that a "continuing" nuisance had occurred.  As highlighted by the Judge, the complaint's last alleged polluting event was 1994-- 13 years before the complaint was filed in 2007.

 

Regarding Section 114 of CERCLA, Judge Gaughan ruled that the complaint sought the exact same damages under Ohio common law causes of action, so Section 114(b) preempted Ohio common law.  As highlighted by Judge Gaughan, where a plaintiffs' CERCLA claim seeks recovery of the same response costs, courts have found that CERCLA preempts the plaintiffs right to recover under the state law. 

 

The court also barred public nuisance causes of action under Ohio nuisance statutes because ARCG II lacks standing under Ohio law.  The court also held that the public nuisance allegations pursuant to Ohio's version of the Clean Water Act (ORC 6111) lacked standing as only governmental entities have standing to bring such claims.

 

The case has been cited in several other jurisdictions which have analyzed CERCLA pre-emption under Section 114(b).

 

549 F. Supp. 2d 981 (N.D.Oh. 2008)

 

For additional information, please contact Greg DeGulis.

 

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