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SPS Ltd. Partnership, LLLP v. Severstal Sparrows Point, LLC

ELR Citation: 41 ELR 20233
Nos. JFM-10-2579, 41, (D. Md., 07/05/2011)

A district court granted in part and denied in part motions to dismiss a shipyard owner's CERCLA, RCRA, and tort law claims against the current owner of a steel mill. The court denied motions to dismiss the shipyard's CERCLA claims for contribution and response costs. The complaint contains factual allegations sufficient to demonstrate that some of their response costs substantially comply with the national contingency plan (NCP), and the state agency's involvement during the shipyard's remediation process satisfies the public participation and comment requirement under the NCP. But the court dismissed the shipyard's RCRA claims as they relate to releases resulting from operations at coke ovens that occurred before the mill owners acquired the mill site. Because RCRA requires "contribution" to "disposal" of hazardous waste, rather than simply "disposal" during "ownership," as required by CERCLA, the mill could not have "contributed" to the "disposal" of hazardous waste generated by the coke ovens. The court, however, dismissed the majority of the RCRA claims because EPA and the state agency are diligently prosecuting these claims under a 1997 consent decree. The consent decree does not cover the migration of hazardous substances that occurred after the shipyard site was removed from the consent decree in 2006, resulting from releases of hazardous substances that occurred after April 23, 2003. Therefore, with the exception of any narrow claims relating to post-2006 migration of hazardous substances released post-2003, the shipyard's RCRA claims are barred by diligent prosecution. And the shipyard's state-law claims are barred by Maryland’s statute of limitations.