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How Much Deference Do States Get in Entering CERCLA Consent Decrees? Probably A Lot, But Perhaps Not As Much as You Thought

In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA...more

Ninth Circuit Rejects CERCLA Settlement, Declines to Give Deference to State Agency

On August 1, 2014, a divided panel of the Ninth Circuit reversed a district court’s approval of a multi-party settlement at an Arizona waste site. State of Arizona v. Ashton Company Incorporated Contractors and Engineers, et...more

New Jersey Supreme Court Allows Early Contribution Claims Under the Spill Act

Parties sued by the New Jersey Department of Environmental Protection (“DEP”) for remediation now have an immediate right to seek contribution from other potentially responsible parties. Following last week’s unanimous ruling...more

Settling Parties In Government Consent Orders Have CERCLA Claims For Contribution Not Cost Recovery

To the extent there was any remaining uncertainty, the Sixth Circuit has now made crystalline that a party settling some or all of its liability under CERCLA with the United States or a state has a contribution claim under...more

EPA Issues Proposed Rule to Significantly Reduce Carbon Dioxide Emissions

Summer has kicked off with a regulatory push by the United States Environmental Protection Agency (EPA). This alert briefly addresses two recent EPA rulemakings....more

The New ASTM E1527-13

In 2013, the EPA issued an amendment to the ASTM E1527-05 to reflect “evolving practices and a higher level of rigor.” While the most recent standard is encouraged, there is no law mandating that it must be used. E1527-05...more

EPA Proposes to Eliminate Dual Standard for “All Appropriate Inquires” under CERCLA

EPA Proposes Rule to eliminate the dual standard for compliance with the “All Appropriate Inquiries” requirement for the Innocent Purchaser, Bona Fide Prospective Purchaser and Contiguous Property Owner Defenses to CERCLA....more

EPA Proposes Change to Environmental Due Diligence Rule For Property Transactions

For the second time in a year, the U.S. Environmental Protection Agency (EPA) proposed to amend the “all appropriate inquiry” rule under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). ...more

EPA Proposes to Delete Reference to Superseded 2005 ASTM Standard from “All Appropriate Inquiry” Rule

On June 17, 2014, the United States Environmental Protection Agency published a proposal to delete reference to the 2005 version of the ASTM Phase I environmental site assessment standard from the federal “all appropriate...more

EPA Issues Proposed Rule to Remove Reference to ASTM E1527-05 in All Appropriate Inquiries Rule

On June 17, 2014, the U.S. Environmental Protection Agency published a proposed rule to amend the standards and practices for complying with the “All Appropriate Inquiries” rule under the Comprehensive Environmental Response,...more

EPA Proposes to Amend All Appropriate Inquiries Rule to Remove References to 2005 ASTM Standard for Phase 1 Assessments

Yesterday, the EPA published for comment notice of its intent to amend the “All Appropriate Inquiries Rule,” 40 CFR part 312, to remove references to ASTM E1527-05 “Standard Practice for Environmental Site Assessments: Phase...more

EPA Proposes Elimination of ASTM Phase I ESA Standard E1527-05 from CERCLA All Appropriate Inquiries Rule

The EPA has announced a proposal to amend the “All Appropriate Inquiries Rule” for conducting environmental site investigations of potentially contaminated property. The proposed amendment will eliminate ASTM E1527-05...more

Real Estate and Land Use - June 2014

Bowman v. California Coastal Commission - Why it matters: The Court in Bowman held that a permit condition could not be modified or deleted by a second permit that included the same project, even if the first permit...more

Is The “Functional Interdependence” Test Dead?

On May 30, 2014, the United States Court of Appeals for the D.C. Circuit vacated the Environmental Protection Agency’s (“EPA’s”) attempt to preserve an expansive view of what constitutes a single source of air emissions under...more

ABRvS 7 augustus 2013, JB 2013/185 m.nt. H.P. Wiersema (Reusel-de Mierden)

Deze uitspraak gaat over verbeurde dwangsommen wegens niet tijdig beslissen en terugwerkende kracht. De ABRvS overweegt dat door de vernietiging van de uitspraak van de rechtbank en van het besluit van 26 juli 2011 is...more

Approval of $1.375 million in EPA Fines Highlights Importance of Commercial Property Owners Complying with Environmental Reporting...

On January 3, 2013, the Environmental Appeals Board approved an administrative settlement that requires New Cingular Wireless PCS to pay a total of $1.375 million in fines and environmental projects for alleged violations of...more

New Liability Protection For Tenants On Brownfield Properties

In a December 2012 Guidance Memo, the Environmental Protection Agency (EPA) announced new enforcement principles intended to enhance protections for tenants on contaminated or previously contaminated “brownfield” properties....more

New EPA Guidance Gives Long-Term Tenants Direct Access to the Bona Fide Prospective Purchaser Defense and Greater Protection from...

Newly issued guidance by the U.S. Environmental Protection Agency (USEPA) suggests that prudent long-term tenants of commercial and industrial properties should conduct environmental due diligence before entering into a...more

The ASTM Standard Practice for Phase II Environmental Site Assessments

Originally published in the Environment Reporter, 43 ER 3080, 11/30/2012. Phase II Site Assessments - This article reviews the background of the revised Phase II Environmental Site Assessment Standard issued in...more

EPA Provides Comfort to Prospective Tenants at Contaminated Properties

Revised guidance details how tenants may benefit from the bona fide prospective purchaser protections under CERCLA. The U.S. Environmental Protection Agency (EPA) on December 5 issued revised guidance that addresses...more

U.S. EPA Issues New Guidance on Bona Fide Prospective Purchaser Defense for Tenants

The United States Environmental Protection Agency ("EPA") released revised guidance on the applicability of the bona fide prospective purchaser ("BFPP") defense to tenants under the Comprehensive Environmental Response,...more

City May Adopt Housing Element Revisions Inconsistent With General Plan If City Also Adopts Timeline To Correct Inconsistencies

Recently, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad affirmed the trial court’s judgment directing the City of Carlsbad to adopt a timeline for proposed changes to its general plan that would...more

Minimizing Commercial Lease Risks Through Proper Environmental Due Dilligence

As real estate development and leasing begin to emerge slowly from the dark days of the Great Recession, it’s important to remember that environmental considerations should not take a back seat to getting a deal done. In...more

Episode 84 – The PACE-Prologis Project in San Francisco

In Episode 84 of The Wendel Forum (originally aired on November 10, 2012, on 960 KNEW AM radio), show moderator Dick Lyons, co-founder of Wendel Rosen’s sustainable business practice group, welcomes Aaron Binkley, Director of...more

National Academy of Sciences Group Recommending Methods to Facilitate Transition of Cleanup Programs from Problem Identification...

The National Research Council, an arm of the National Academy of Sciences (NAS), today released a report, “Alternatives for Managing the Nation’s Complex Contaminated Groundwater Sites” (available from the National Academies...more

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