A recent decision from the Second Circuit Court of Appeals, Niagara Mohawk Power Corporation v. Chevron U.S.A., Inc., ____ F.3d ____, 2010 WL 626064 (2d Cir., Feb. 24, 2010) has made it easier for private plaintiffs seeking contribution from other potentially responsible parties ("PRPs") under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq. to survive a motion for summary judgment.  In particular, the Niagara Mohawk decision rejected arguments that the evidence linking PRPs to a hazardous waste site were too speculative or tenuous to survive summary judgment.  In fact, the Niagara Mohawk decision went so far as to advise that "[d]efenses of minimal involvement or limited proof of responsibility" were considerations for the damages, rather than the liability, phase of a contribution action.  As such, the Second Circuit's lowering of the proof bar may have the practical effect of encouraging more settlements of CERCLA contribution actions.

In Niagara Mohawk, Niagara Mohawk Power Corporation ("NiMo") incurred costs to investigate and remediate a contaminated site in Troy, New York; NiMo owned portions of the Site, either directly or through a predecessor, from 1922 through 1951, during which time it operated a manufactured gas plant.  In 1992, NiMo entered into a Consent Order with New York's Department of Environmental Conservation ("DEC") that required NiMo to investigate the Site to determine the nature and extent of the hazardous materials present.  In 2003, NiMo and the DEC entered into a second Consent Order, under which NiMo incurred additional costs while obtaining a specific release of CERCLA liability upon meeting certain conditions.  NiMo in turn sought contribution from other PRPs on various theories, including pursuant to Section 113(f)(3)(B) of CERCLA, which provides for contribution for "some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement."

The federal district court granted summary judgment in favor of multiple PRPs, including U.S. Steel Corporation ("U.S. Steel"), Chevron U.S.A., Inc. ("Chevron"), and Portec, Inc. ("Portec").  In each instance, the district court generally concluded that NiMo failed to present evidence sufficient to establish liability.
    
The Second Circuit reversed, and in doing so, dialed back the evidentiary showing a PRP seeking contribution under § 113 must make to defeat summary judgment.  Specifically, the Second Circuit noted that "there is nothing objectionable in basing findings solely on circumstantial evidence, especially where the passage of time has made direct evidence difficult or impossible to obtain."  Indeed, the salutary purpose of CERCLA — the remediation of sites containing hazardous materials, and the identification of the sources of those hazardous materials — leaves little or no room for traditional concepts of tort causation in the liability analysis.  Issues of causation should be considered in the apportionment stage of the proceeding, together with other equitable factors (i.e., "District Courts are authorized to use their broad discretion under CERCLA to employ the equitable factors, including consideration of the quality of the evidence that lead to liability").  As such, the Second Circuit concluded that summary judgment should be granted to a defendant only in the most undisputed circumstances:  

The party seeking contribution must, of course, establish that the defendants qualify as PRPs under the statute and must demonstrate that it is probable that defendants discharged hazardous material.  But the party seeking contribution need not establish the precise amount of hazardous material discharged or prove with certainty that a PRP defendant discharged the hazardous material to get their CERCLA claims past the summary judgment stage.  By referencing "equitable factors," the statute requires district courts to consider the practical difficulties in these cases.  Summary judgment is only proper when a defendant establishes it is not liable at all under CERCLA... .
 
Applying this relaxed standard, the Second Circuit held that NiMo had in fact submitted evidence sufficient to demonstrate genuine issues of material fact with respect to all but one portion of NiMo's contribution claims against Chevron, U.S. Steel, and Portec, and reversed the district court's grant of summary judgment to each PRP.