Important Information:  There are multiple questions regarding CERCLA.  In answer to all of them, the last paragraph in Section III of the lower court’s opinion is modified as follows:

1. The fourth sentence reads "While Plaintiff and Intervenor both make claims under §§ 107 and 113(f), they do not allege there has been a previous CERCLA §§ 106 or 107 action here, making CERCLA § 113(f) unavailable to them."
2. The sixth sentence is amended by adding at the end "as the owner of the contaminated beach."
3. Add a sentence at the end of the paragraph. "BRK’s claim for recovery under §107 is denied because it is inconsistent with the National Contingency Plan."

In addition, instruction 6 of the Twelfth Circuit’s Order is modified to read:

"Whether Appellant-BRK and Appellant-Noblesville have claims for reimbursement and summary judgment against Appellee under CERCLA § 113(f), 42 U.S.C. § 9613(f), in the absence of a pending or previous action under CERCLA §§ 106 or 107, 42 U.S.C. §§ 9606 or 9607; whether Appellant-Noblesville has a claim under CERCLA § 107, 42 U.S.C. § 9607, where it is also a liable party under that section; and whether the Appellant-BRK’s claim under § 107, 42 U.S.C. § 9607, can be denied as inconsistent with the National Contingency Plan without an explanation of how it differs from the Plan."    

Note:  If you want to cite to information provided in the Problem Q&A, simply cite it as Record Supplement, Answer to Questions.

Q1:  On p. 2 in its explanation of issue 6 (CERCLA), the Appellate Court cites Section 107 twice. We are assuming it means to cite Sections 106 & 107 (see p. 9).

A1:  The observation is correct. The first reference to Section 107 should be to Section 106 (CERCLA § 106, 42 U.S.C. § 9606).

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Q2:  We want to be sure that the fact that Noblesville failed to argue Issue 1 (point source) in the District Court, it won't be precluded from raising the issue on appeal because the parties are not limited to the issues below. 

A2:  Correct. 

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Q3:  Appellant BRK and Appellant Noblesville are arguing that they have claims under CERCLA on issue 6, correct?

A3:  Issue 6 speaks for itself.  

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Q4:  Page 5 of the Problem states that 20% of New Union's residents are of Proto-Litigian descent. It is our understanding that Proto-Litigian is a fanciful term. Is that the proper interpretation?

A4:  Your observation is correct, the term is fanciful.

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Q5:  The opinion (p.6) cites to 43 N.U.R.A.C. § 78.04, our team is unable locate such a regulation and assuming it is a made-up regulation, there is no related appendix. Can you please clarify the nature of the regulation?

A5:  The New Union Revised Administrative Code is not online and probably is not in your library.

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Q6:  On the bottom of page 3, last line, the parenthetical following the CERCLA statute "42 U.S.C. 9607" reads "(COUNT IV)." Is it supposed to read "(COUNT VI)?"

A6:  It should read "(COUNT IV)" rather than "(COUNT VI)." The confusion may arise from the fact that the CERCLA claim in COUNT IV before the trial court raises question 6 posed by the appeals court.

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Q7:  Who was the issuing authority for the Corporation's NPDES permit? 

A7:  The State of Progress issued the Corporation's NPDES permit.

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Q8:  Does the Corporation’s NPDES permit contain any conditions for compliance with water quality standards?  If so, for what state(s)? 

A8:  No, the Corporation’s NPDES permit does not contain any conditions for compliance with water quality standards.  

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Q9:  In Issue (6) the court below instructs each party to brief whether BRK and Noblesville have claims under CERCLA 107 where Noblesville is also a liable party under that section.  Furthermore we are asked to limit the brief to the above issues.  May we brief the issue of liability under 107 or are we to assume that Noblesville is a PRP?

A9:  You may do whatever you believe is appropriate under the circumstances.  

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Q10:  Should we assume the State of New Union and the State of Progress are not diligently prosecuting the case, and that EPA has taken no action?

A10:  Neither EPA nor the states have taken an enforcement action against Major Electronics.  

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Q11:  Is there a ‘date’ for when the District Court opinion (granting summary judgment) was handed down?
Q12:  Should we assume the lower court decision is unreported or reported?

A11&12:  The opinion is undated.  An appeal was timely filed.  The lower court opinion is not published.

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Q13:  How should we ‘cite’ to it for our brief?
 
A13:  If you want to cite to information provided in the Problem Q&A, simply cite it as Record Supplement, Answer to Questions.

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Q14:  Does the ‘order granting the appeal’ need to be mentioned opinions below?

A14:  This is your call.

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Q15:  Can we use administrative court decisions as persuasive authority?

A15:  This is your call.

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Q16:  The District Court's discussion of Count IV (CERCLA claims), the Court neglected to provide reasoning for its denial of BRK 's action under Section 107, and seems to have summarily dismissed that claim along with Noblesville's claim under that section.  It appears that the reasoning which was included in the Count IV discussion, concerning the denial of Noblesville's claim, does not apply to the denial of BRK 's claim.  Did the authors intend to leave the District Court's reasoning concerning the denial of BRK 's claim unclear?  If not, what reasoning was to be inferred from the discussion included for Count IV?

A16:  The opinion says what it says.

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Compilation of questions with the same response

Q17:   If we wanted to cite to information previously provided in the Q&A from the record, what page should we give?  On page 6 the court implies there is no water quality standard in the Corporation's permit, so if we should cite to that page let me know.
Q18:  The facts state that the State of New Union's WQS have been EPA approved, but there is no indication as to whether Progress' WQS or permitting program have  been EPA approved. Are the State of Progress ' WQS and NPDES program approved by the EPA?
Q19:  Have the State of Progress ' water quality standards and NPDES program been approved by the EPA? 
Q20:  Has EPA approved both of the Water Quality Standards and State Management Plans?
Q21:  Does the State of Progress have a Class B category of waters that is equivalent to New Union’s Class B category? 
Q22:  When did Major Electronics apply for its NPDES permit?  When was it approved?
Q23:  When did each state adopt their Water Quality Standards?  Have they been revised at any time? 
Q24:  What was the best use on the water in both States that existed on or after November 28, 1975 ?

A17-24:  EPA has approved the water quality standards and associated planning programs of both Progress and New Union.  EPA has not approved Progress’ water pollution permitting program.  EPA, therefore, issued the permit.  The record is silent on when each state adopted and/or revised its water quality standards, the nature of the standards in 1975, or the extent to which the uses and criteria for Class B waters are equivalent in each state.  Major Electronics applied for its permit and permit re-issuance in a timely fashion and a permit has been in effect at all times relevant to the case.

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Q25:  We have referenced both the Fed. R. of App.Pro. as well as the NELMCC rules and we are still unsure of one thing.  Regarding Issue 1, since Intervenor did not argue the point source issue at all in the lower court, are they now forced to argue it on appeal since the question presented on page 1 specifically states that Appellant-Noblesville argues that the PCB-impregnanted soil is NOT a point source?  In other words, is the Intervenor required to argue Issue 1 on appeal, or can the Intervenor remain silent on the issue (as it was in District Court)?  

A25:  The order speaks for itself.

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Q26:  Is Proto-litigian assumed to be minority group referenced in the sentence, “Eighty percent of Noblesville’s population is a racial minority?”

A26:  The racial minority comprising 80% of Noblesville’s population is Proto-litigian. 

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Note:  There are inconsistent answers to Questions 7 & 18 on this web page.  The correct answer to both is that EPA has not approved Progress’ permitting program.  EPA, therefore, issued the permit.