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California Federal Court Dismisses CERCLA Claims and Strikes Request for Attorneys’ Fees

In N. Cal. River Watch v. Fluor Corp., __F.Supp.3d__, 2014 WL 4954638 (N.D. Cal. Oct. 2, 2014), a Northern California district court dismissed Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”)...more

New Jersey Landowner Forfeits Damages by Allowing Defendant to Remediate

In what may be a cautionary tale for owners of contaminated property, a New Jersey appellate court has ruled that a landowner forfeited any claim to property damages when he allowed the responsible party to perform...more

Tenant Who Sublets A Superfund Site Is Not Likely To Be A CERCLA Liable Party

It is generally the rule that a lessee who does not operate the property it rents will not be liable under CERCLA except in the unusual circumstance where the lessee qualifies as an “owner” of the property. Typically, this...more

California's Eastern District: Government Agency Liable for Costs When Site Cleanup Is Mismanaged

In a ruling last month (California Department of Toxic Substances Control v. Jim Dobbas, Inc., et al), the United States District Court for the Eastern District of California held that the Department of Toxic Substances...more

EPA Issues Final Rule Clarifying CERCLA’s “All Appropriate Inquiry” Standard

The U.S. Environmental Protection Agency has at long last issued a Final Rule which provides clarification to prospective purchasers of contaminated property regarding the standards and practices that are to be used for...more

EPA Announces Final Rule Eliminating ASTM Phase I ESA Standard E1527-05 from CERCLA “All Appropriate Inquiries Rule”

On October 6, 2014, the EPA announced a final rule amending the “All Appropriate Inquiries Rule” [40 CFR Part 312] (“AAI Rule”) for conducting environmental site investigations of potentially contaminated property....more

No Need To Wait For NJDEP’s Approval When Seeking Contribution For Site Cleanups

Parties that find themselves responsible for the remediation of contaminated property in New Jersey do not have to wait for the New Jersey Department of Environmental Protection (“NJDEP”) to approve a final cleanup plan...more

EPA's Concern Over TCE Vapor Intrusion Is Misguided

On July 9, 2014, the Director of the U.S. Environmental Protection Agency's Superfund Division in Region 9 issued a memo to staff setting an “operational framework” to address “inhalation exposures [to trichloroethylene] in...more

CERCLA’s Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements

Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement. That is the...more

The Wait Is Over: Liable Parties Can Now Seek Early Contribution Claims Without New Jersey Department of Environmental Protection...

The recent Supreme Court of New Jersey ruling in Magic Petroleum v. Exxon Mobil demonstrates a trial court’s ability to allocate liability to “dischargers” while maintaining the role of the state’s Department of...more

Importance of Judicial Approval of CERCLA Settlements

Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives. This judicial review is at the heart of CERCLA’s...more

Grant Recipients Likely to Accept a 50 Percent Share of Cleanup Costs Under New Washington Grant Funding Rule

The new Department of Ecology (Ecology) grant funding rules, which are expected to go into effect in September 2014, will change the way grant recipients resolve contribution claims against other liable parties under the...more

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

Environmental Claims: Twenty Years Later

A Chapter 11 debtor moved to reopen its bankruptcy case more than 15 years after it was closed in order to enforce the plan confirmation order to prevent claims by a state environmental agency and other potentially...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

Environmental Due Diligence: A Practical Guide to Environmental Site Assessments Part 2

If after a Phase I ESA, the EP determines further investigation is warranted, that more invasive investigation takes the form of a Phase II ESA. The primary purpose in conducting a Phase II ESA is to evaluate any REC(s)...more

Supreme Court Says CERCLA Does Not Preempt Repose Defense for Tort Claims

The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from certain contaminated sites. CTS Corp. v. Waldburger, No....more

Morristown Associates v. Grant Oil

In 2006, Morristown Associates filed a suit against multiple heating companies and the previous owners of a dry cleaning business to seek payment for the costs they incurred redeveloping the property. They cited the source...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

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Apportionment

The U.S. Court of Appeals used the recent case of PCS Nitrogen Inc. v. Ashley II of Charleston LLC to decide when it is appropriate to rule in favor of apportionment under CERCLA. In this case, 43 acres of land in...more

Environmental Due Diligence: A Practical Guide to Environmental Site Assessments Part 1

Environmental Site Assessments (“ESA”) assist potential purchasers acquiring an interest in commercial real estate with determining a baseline for certain environmental conditions of the property and potentially establishing...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 Clarification on CERCLA’s “All Appropriate Inquiry” Standard

Step by step, inch by inch. Slowly but diligently, the U.S. Environmental Protection Agency has been working to clarify what standards and practices may be used for conducting “all appropriate inquiries” (AAI) under the...more

Significant Changes to Massachusetts Site Remediation Regulations

The Massachusetts Department of Environmental Protection (DEP) has made significant changes to the regulations governing the cleanup of contaminated sites in the Commonwealth (310 C.M.R. §§40.0000, et seq., known as the...more

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