Robert S. Sanoff

Robert S. Sanoff

Foley Hoag LLP

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CERCLA Principles in Child Pornography Cases

Although one might not ordinarily think to associate child pornography and pollution, the two were linked at an oral argument yesterday before the United States Supreme Court. Specifically, in a child pornography case, the...more

1/24/2014 - CERCLA Child Abuse Child Pornography

The Emerging Non-Expansive View of CERCLA Liability: The Decline of Tanglewood East

The specter of environmental harm used to frighten courts and spawned a generation of decisions extending Superfund liability to virtually any party with a nexus to a site that was contaminated. One case that signaled just...more

1/16/2014 - CERCLA Contaminated Properties Environmental Liability Environmental Policies Superfund

Enforcing CERCLA’s Three Year Statute of Limitations for Removal Actions

Although courts are sometimes reluctant to enforce them, there really are hard stops in CERCLA, particularly the three year statute of limitations for recovery of costs incurred in a removal action. ...more

1/7/2014 - CERCLA Removal Statute of Limitations Superfund

Environmental Liability of Dissolved Corporations in Delaware is Forever

Ever since the Supreme Court’s decision in Citizen’s United, an effort has been made to humanize corporations, culminating in Mitt Romney’s infamous pronouncement that “Corporations are people my friend.” Now it turns out...more

12/11/2013 - Environmental Claims Environmental Liability

Differentiating Between Junk Science and Admissible Expert Opinion in Pennsylvania

In environmental personal injury cases, proof of causation is key and that causation almost always hinges on expert opinion. A recent appellate decision in Pennsylvania in Snizavich v. Rohm and Haas Company provides useful...more

12/11/2013 - Causation Environmental Claims Expert Testimony Expert Witness

CERCLA’s Broad Sweep of Liability For Owners

Some decisions are valuable not because they make new law but because they reaffirm well known principles of law. City of Banning v. Dureau is one such decision. There, a federal district court in California ruled that an...more

11/22/2013 - CERCLA Contaminated Properties Due Diligence Hazardous Substances Strict Liability

Is the Absolute Pollution Exclusion Absolute? It Depends on Which State Answers the Question

The battle over the scope of the absolute pollution exclusion in general liability policies continues to be fought in the context of defective drywall manufactured in China. An earlier blog entry discussed a Virginia court...more

10/10/2013 - China Chinese Drywall Commercial General Liability Policies Pollution Exclusion

Sale of a Usable Waste Defense — Another Instance of the Unstated Rule of CERCLA Liability

Extending its string of CERCLA PCB losses in the Midwest, NCR Corporation was recently found liable for contribution based on its sale of waste scrap from its manufacture of carbonless copy paper in Michigan. In...more

10/3/2013 - CERCLA Discharge of Pollutants Hazardous Substances PCBs Waste Disposal

The Seventh Circuit Still Wrong: Bernstein v. Bankert

Late last year I blogged on the dubious decision by the Seventh Circuit in Bernstein v. Blankert which held that a settling CERCLA party did not resolve its liability to the government until it had performed all of its...more

8/6/2013 - CERCLA Consent Decrees EPA

Environmental Nuisance Claims — It Helps To Have Experts

The old warning that “past performance is no guarantee of future results” apparently applies not only to investments but also to environmental nuisance suits in Tennessee. ...more

7/19/2013 - Environmental Claims Expert Testimony Expert Witness Litigation Strategies Nuisance Trials

The Real Risk of Unregulated Air Pollution

Sometimes the most valuable research turns out to be a confirmation of the obvious. Fitting that bill is the study released yesterday in the Proceedings of the National Academy of Science documenting the substantially...more

7/9/2013 - Air Pollution China Clean Energy Coal Coal Ash Environmental Assessments EPA National Academy of Science

CERCLA Is Still Constitutional

To paraphrase Shakespeare, United States v. Sterling Centrecorp, Inc., is a great feast of legal argument. The PRP in that case purchased the assets of a mining company whose operations in California had caused releases of...more

6/26/2013 - CERCLA Commerce Clause Contaminated Properties Discharge of Pollutants Environmental Liability Hazardous Substances

What To Do When You Are Issued A CERCLA Injunction To Perform A $1.5 Billion Cleanup — Lower Fox River Superfund Update

In a 78 page decision in the Lower Fox River Superfund case issued last month, the federal court issued an injunction against NCR Corp. and three other PRPs requiring them to perform a $1.5 billion remedy. No company ever...more

6/13/2013 - CERCLA Environmental Liability NCR Corp. PRP Superfund

CERCLA Liability For Relocation of Hazardous Waste — Is There Any Limit?

Just as tortfeasors take their victims as they find them, so PRPs take their hazardous waste sites as they find them. This rule has been around since the beginning of CERCLA and means that a party which arranges for the...more

6/4/2013 - CERCLA Environmental Liability Hazardous Substances PRP Third-Party Wetlands

Do Liability Policies, Particularly Pollution Liability Insurance Policies, Exclude Coverage for All Injunctions? The Fifth...

The Fifth Circuit handed down an important decision last week, Louisiana Generating LLC v. Illinois Union Insurance Company, clarifying the scope of coverage under a Premises Pollution Liability Insurance Policy. The...more

5/22/2013 - Clean Air Act Duty to Defend Injunctions Insurers Pollution Liability Insurance

Why Trial Courts Are Reluctant To Exclude Scientific Evidence in Toxic Tort Cases

Environmental litigation, particularly toxic tort litigation, inevitably turns on scientific evidence about causation. Beginning with the Supreme Court’s Daubert decision in 1993, trial courts have repeatedly been admonished...more

5/21/2013 - Causation Daubert Hearing Expert Testimony

Superfund Liability for the Repair of a Useful Product

A few months ago, I blogged on the decision in Duke Energy Progress Inc. v. Alcan Aluminum Corporation where a court held that a company would not be held liable for selling used transformers to a recycling facility for...more

5/14/2013 - Hazardous Substances Recycling Superfund

What Response Costs Are Necessary Under CERCLA

In a post last year, I discussed what I I thought was the dubious dismissal of a CERCLA cost recovery action in Stratford Holding, LLC v. Fog Cap Retail Investors LLC. ...more

4/24/2013 - CERCLA Environmental Liability Groundwater Hazardous Substances

PCS Nitrogen Inc. v. Ashley II of Charleston: Required Reading for Superfund Lawyers

The Fourth Circuit handed down a primer on CERCLA liability last week in PCS Nitrogen Inc. v. Ashley II of Charleston. It should be required reading for Superfund lawyers. The facts in the case are worthy of a law school law...more

4/9/2013 - Apportionment CERCLA Contamination Environmental Liability Superfund

Words Matter — Settlement Agreements Should be Enforced As Written

Sometimes you read a decision and it’s hard to understand how there really were two plausible sides to the dispute. Arrowood Indemnity Company v The Lubrizol Corporation is one such a decision. There, a policyholder sold...more

4/2/2013 - Contaminated Properties Contract Interpretation Insurers Liability Insurance PRP Letter Settlement

The Intersection of Subrogation and Environmental Law — The Ninth Circuit’s Tyranny of Logic over Common Sense

In a decision that exalts casuistry over common sense, the Ninth Circuit recently held that an insurer who reimbursed $2.4 million in CERCLA response costs to its policyholder had no subrogation rights against the potentially...more

3/20/2013 - CERCLA Contamination Environmental Liability Insurers Subrogation

Unstated Rule on Superfund Liability for Sale of a Usable Product — One Year Later

Exactly a year ago, I posted a blog that argued that the decisions on Superfund liability for the sale of usable product could be distilled down to an ”unstated rule” — a party will be held liable as having intended to...more

3/1/2013 - Carolina Power and Light Company CERCLA Environmental Liability Hazardous Substances Superfund

Sudden and Accidental Pollution in Massachusetts — Not Always Fatal To Coverage

In some jurisdictions, an environmental claim under a liability policy with a “sudden and accidental” pollution exclusion has the same prospect of success as a due process claim under the strict scrutiny standard — strict in...more

2/22/2013 - Contaminated Properties Due Process Hazardous Substances Oil & Gas Pollution Exclusion Strict Scrutiny Standard Successor Liability Sudden and Accidental

It Is A Unitary Government Afterall: Privilege For Intra-governmental Communications

About a year ago, I blogged about a decision by the federal district court in the Lower Fox River case ruling that there was no attorney-client privilege protecting communications between government lawyers representing the...more

2/21/2013 - Attorney-Client Privilege CERCLA EPA Intra-Governmental Communications PRP Work Product Privilege

Reverse Coverage Suits: What Happens When Policyholders Agree to Defend and Indemnify Their Insurers

Increasingly, when settling coverage disputes, insurers require policyholders to agree to defend and indemnify the insurer against any additional claims asserted against the insurer. This produces the curious result that...more

1/25/2013 - Hartford Fire Insurance Company Indemnity Agreements Lanxess Sybron Chemicals Company Reverse Coverage Suit Settlement Superfund

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