Lyondell Chemical Co. & ARCO v. Albemarle Corp., et al.; In the U.S.D.C. Eastern District of Texas; Beaumont Division

Outcome: December 3, 2007 Judgement of $4,702,852.00.

Description: Retained by plaintiffs Lyondell Chemical Co & Atlantic Richfield Co (ARCO), filed suit against Defendant Lubrizol Corp & other Defendants under the COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, & LIABILITY ACT OF 1980 (CERCLA), 42 U.S.C. § 9601-9675. The facts of this case are straight forward: plaintiffs entered into a Consent Decree with the U S of America to clean up a superfund site in Liberty County known as the Turtle Bayou (TB) Superfund Site, but the procedural & evidentiary process has been very complex. Plaintiffs spent well over $29 million to date in response costs for remediation at the TB Site & brought suit in Dec of 2002 against Lubrizol, ExxonMobil & U. S. Steel & other Defendants pursuant to 42 U.S.C. § 9607 & 9613. The case was originally filed before U.S. District Judge Howell Cobb, who bifurcated the trial into 2 phases, i.e. Phase I Liability & Phase II Allocation. Judge Cobb heard the evidence on the Phase I Liability portion of the case between 3/21 & 4/ 21, 2005. Unfortunately, before Judge Cobb could complete his FOF&C of Law, he passed away suddenly. The case was reassigned in Oct of 2005 to U.S. District Judge Marcia Crone. Judge Crone heard some of the witnesses who had previously testified in the liability trial before Judge Cobb during a RULE 63 Hearing held from 2/13 - 02/21/06, & then the Court rendered its Findings of Fact & Conclusions of Law for the liability phase of the trial on 04/17/06. The Court found Lubrizol wastes were dumped at the TB Site in its Findings of Fact & also found that Lubrizol's hazardous substances were released at the site. The Court held in its Conclusions of Law that the Plaintiffs had established by a preponderance of the evidence that Lubrizol arranged for the disposal of hazardous waste at the site, that Plaintiffs have proven all the elements of their prima faca case against Lubrizol, & therefore Lubrizol was a covered person & liable to Plaintiffs under § 9613 of CERCLA. Prior to the start of the Allocation portion of the trial (Phase II) which was conducted between 3/21 & 4/18 & 5/1/ - 6/8/07, the Court pursuant to FED. R. CIV. P. 706 retained Dr. Charles J. Newell, Ph.D, P.E., .DEE, Vice President of Groundwater Services, Inc., 2211 Norfolk, #1000, Houston, Tx to assist the Court in understanding some of the highly technical issues involved in the waste chemistry & remediation process. Dr. Newell rendered 5 reports, was deposed for a week & testified at the Phase II trial for 4 days. On 12/03/07 the Court issued its Amended FOF&C of Law & simultaneously filed a Final Judgment. Mr. Maierson was able to obtain a judgment against the Lubrizol Corp under 42 U.S.C. § 9613 in the amount of $4,702,852.00. The Court further held that Lubrizol was 15.96% responsible for the cleanup costs. With the pre-judgment interest it is estimated that the judgment will be approximately $5,512,000.00. In addition to the stated amounts, the Plaintiffs were granted a Declaratory Judgment pursuant to 42 U.S.C. § 9613(f)(1) for further response costs & damages, which are estimated to be approximately $3,000,000.00. The Court also allowed post-judgment interest at the rate of 3.25% from 10/3/07 until paid. Prior to the Rule 63 Hearing in Feb of 2006 Mr. Maierson obtained a settlement against another responsible party, U S Steel Corp, in the amount of $900,000.00 for Plaintiffs Lyondell & ARCO. In January of 2008 the case was appealed by Lubrizol to the 5th Circuit Court of Appeals in New Orleans. Mr. Maierson & the firm fully participated in the appellant process & was co-counsel with another firm on all briefs that went to the 5th Circuit. In June of 2009 the case was settled after mediation & prior to oral arguments before the 5th Circuit. The amount of the settlement was approximately 90% of the Judgment including the pre and post trial interest & additional post remediation costs that Plaintiffs will incur in the future.