The Seventh Circuit Still Wrong: Bernstein v. Bankert

more+
less-
Explore:  CERCLA Consent Decrees EPA

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 obligations under the Consent Decree.  While that decision enabled the settling party to get around a statute of limitations problem in bringing a claim against the real polluting party, that decision also meant that settling parties had no protection from contribution claims or new suits by the government until all the obligations under the Consent Decree had been performed — which in many instances could be decades.   After that decision issued, the losing party in the appeal requested a panel rehearing, which was joined by the US EPA as amicus.

The Seventh Circuit allowed the rehearing and recently reaffirmed its mistaken view in an amended decision.  The only leeway the court showed was to acknowledge the possibility that the government could in a Consent Decree expressly provide that the settling party has resolved its liability upon signing the Decree.  Even assuming that the government is willing to enter settlements that resolve liability immediately upon signing, the amended decision does nothing to address the vast numbers of prior CERCLA settlement agreements which specifically state that a settling party does not resolve its liability to the government until it has performed its obligations under the decree.

 

Written by:

Published In:

EPA

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.
×
Loading...
×