On March 1, 2021 Chief Judge Marbley of the SD of Ohio issued an opinion in FIP Realty v. Ingersoll-Rand, et.al., a case of first impression concerning CERCLA Section 113(f)(3)(B) and the Ohio Voluntary Action Program, ORC Section 3746.23. The FIP case concerns an industrial warehouse in Columbus, which was the subject of an Ohio EPA VAP No Further Action Letter (NFA) and Covenant Not to Sue (CNS). In this case, FIP alleged that Ingersoll-Rand and predecessor companies released TCE at the FIP site, which caused FIP to incur CERCLA response costs and VAP costs of conducting a voluntary action.
In response, Ingersoll-Rand filed a Motion for Summary Judgment, which requested that the Court dismiss the case because the Ohio EPA CNS was not an “administrative settlement” and that the three year VAP statute of limitations had expired prior to the filing of the Complaint on July 30, 2019.
In his opinion, Judge Marbley ruled, in a case of first impression in the Sixth Circuit, that the Ohio EPA CNS did meet the criteria for an “administrative settlement” under Section 113(f)(3)(B). This ruling is significant because there are few CERCLA opinions concerning contribution actions which analyze the orders issued under state voluntary clean-up programs, such as the Ohio VAP. In addition, Judge Marbley ruled that the VAP statute of limitations had not run prior to the filing of the Complaint. This is the first decision on VAP statute of limitations since the statute became effective in 1994.
McMahon DeGulis, LLP represents FIP in this case. Learn more about our CERCLA work here.