Bancamerica Commercial Corp. v. Mosher Steel of Kansas, Inc.

Summary

The Tenth Circuit reviewed claims arising from the cleanup of an industrial site contaminated by lead and other hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), along with a state-law breach-of-contract claim. The court affirmed most of the district court’s rulings, including the allocation of cleanup responsibility and refusal to grant a contractual offset. It reversed and remanded the refusal to award prejudgment interest on the CERCLA contribution award, holding that interest may be awarded in Section 113(f) contribution actions in the same manner as in Section 107 actions.

Holdings

1. Response actions performed in compliance with EPA orders issued under CERCLA section 106 are deemed consistent with the National Contingency Plan under 40 C.F.R. § 300.700(c)(3)(ii); the orders' general applicable-law provisions did not independently require compliance with the plan's public-comment requirements.
2. The district court was not required to determine whether the response action was a removal action or a remedial action before deciding consistency with the National Contingency Plan.
3. The court would not consider Trinity's argument concerning the independent recoverability of Bancamerica's 1988 and 1989 costs because Trinity did not adequately raise that distinct argument in the district court.
4. Trinity was not entitled to an offset because it failed to establish that Bancamerica owed the alleged debt for the cranes.
5. Prejudgment interest must be awarded in CERCLA section 113(f) contribution actions in the same manner as in section 107 actions.
6. Bancamerica and ASARCO made sufficient written demands for specified amounts, satisfying section 107(a)'s demand requirement.
7. The district court did not abuse its discretion by considering only the approximate volume and toxicity of Trinity's lead contamination in allocating five percent of the lead-related response costs to Trinity.
8. The district court did not clearly err in finding no breach of the lease because Bancamerica failed to establish that Trinity improperly operated or maintained the tanks or that the contamination occurred during Trinity's tenancy.

Questions Presented

1. Whether EPA section 106 orders made the response actions consistent with the National Contingency Plan without requiring compliance with the plan's public-comment requirements.
2. Whether the district court had to determine whether the cleanup was a removal action or a remedial action.
3. Whether Trinity preserved and could assert a claim that Bancamerica's 1988 and 1989 response costs were independently unrecoverable.
4. Whether Trinity established entitlement to an offset against its unpaid-tax liability.
5. Whether prejudgment interest is available in a CERCLA section 113(f) contribution action and whether Bancamerica and ASARCO satisfied the statutory demand requirement.
6. Whether the district court abused its discretion by considering only toxicity and volume in allocating lead-contamination response costs.
7. Whether Trinity breached the lease by improperly operating or maintaining underground storage tanks.

Disposition

reversed_and_remanded