On August 18, a Tyco International Ltd. unit updated its RCRA claim in an environmental cleanup suit against Rowe Industries Inc., following a federal judge's ruling that Tyco may be able to seek prospective relief but not past damages under RCRA. The amended complaint filed in the U.S. District Court for the Northern District of California is the latest twist in protracted litigation over liability for the cost of cleaning polychlorinated biphenyls at a former electrical transformer manufacturing plant in Redwood City, Calif.
The case is being closely watched throughout the industry, including an August 19 Law360 article in which Mordecai Boone, counsel for Rowe Industries Inc., explained that the Court's selected "proportionate share method" as opposed to the "pro tanto" apportionment method means that Tyco bears the risk for any costs above those ultimately assigned to Rowe.
In considering Rowe's motion to dismiss Tyco's RCRA claim, the court ruled earlier in August that Tyco could not recover for any previously incurred investigative costs because they are considered damages and therefore barred under the RCRA. It also held that costs based on a remediation plan adopted prior to the instant action could not be recovered. However, it gave Tyco leave to amend its RCRA complaint, writing, "it is conceivable that plaintiff may be able to plead a claim for prospective relief recoverable under RCRA." The updated complaint seeks injunctive or other relief requiring Rowe to pay investigation and remediation costs, or an order requiring Rowe to take over the cleanup effort. It also sought declaratory relief. Tyco's CERCLA and state law claims against Rowe are also still pending in the related case.
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