Contaminated Properties

News & Analysis as of

CERCLA Preempts Local Cleanup Bylaws; PRPs Everywhere Breath a Sigh of Relief

In an important decision yesterday, Judge Douglas Woodlock of the District of Massachusetts confirmed that CERCLA preempts local cleanup bylaws. The case involved one aspect of the cleanup of the W.R. Grace Superfund Site in...more

Studies Identify Flawed Well Construction (not Fracturing) as Source of Gas Contamination: More Questions Posed for Further...

For the past several years, the rapid growth of oil and natural gas production from shale and other unconventional sources has prompted vocal and often sensationalized concerns regarding the potential for migration of gas...more

New Jersey Appellate Court Limits Measure of Damages for Contaminated Properties

On August 27, 2014, the Superior Court of New Jersey ruled in favor of Puritan Oil against a New Jersey property owner, finding that where the oil company had already taken steps to remedy contamination it caused on...more

Connecticut Department of Energy and Environmental Protection Releases "Evaluation of Risk-Based Decision Making" With Public...

On August 29, 2014, the Connecticut Department of Energy and Environmental Protection (DEEP) released “Evaluation of Risk-based Decision Making,” a report prepared by CDM Smith under contract to the state. DEEP has now...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

N.J. Federal Court Dismisses Environmental Suit Against Lockheed Martin for Lack of Health Threat

A New Jersey federal court recently dismissed an environmental suit against Lockheed Martin, rejecting the plaintiffs’ argument that any exposure to particular environmental contaminants is harmful. Leese v. Lockheed Martin...more

Is There a Duty to Defend Pollution Claims? It’s the Complaint, Stupid

This Spring, cases from Florida and Wisconsin reaffirmed the general proposition that a liability insurer’s duty to defend must be determined from the specific claims in the underlying complaint against the insured, and not...more

Did Governmental Mismanagement Cause a Dam to Burst? Mount Polley Mine

Mount Polley mine is operated by Imperial Metals and is an open-pit copper and gold mine with a four kilometre-wide tailings pond built with an earthen dam. It's located in central BC, west of Williams Lake and near the...more

Is Selenium the Coal Industry’s Kryptonite? Citizen Groups Obtain Summary Judgment Based on Water Quality Criteria Exceedances

Last week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water...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

Chemical Safety Board investigator outlines discoveries from West Fertilizer, Charleston water incidents

A fertilizer plant surrounded by homes, schools, and a hospital. A chemical tank that was externally examined but not drained of liquid for a more thorough inspection. These were some of the factors that contributed to two...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

Is Death A Defense To CERCLA Liability?

In contrast to the early days of Superfund when no argument for extending CERCLA liability was too far-fetched, the Second Circuit recently rejected one of the all-time “Hail Mary” passes for CERCLA contribution. The case,...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

The Complexity Associated with Setting Non-cancer Indoor Air Remediation Goals for Trichloroethylene Based on Short-term Exposure...

Over the last few years, there has been increasing consideration of vapor intrusion in groundwater investigations, groundwater remedy selection, periodic reviews of the continued safety of already implemented groundwater...more

Oil and Gas Companies Ask Colorado Supreme Court to Approve Trial Court Order Requiring Plaintiffs to Present Preliminary Evidence...

On June 18th, Antero Resources Corp., Antero Resources Piceance Corp, Calfrac Well Services Corp, and Frontier Drilling LLC filed their Opening Brief before the Colorado Supreme Court in a “toxic tort” case concerning...more

California Environmental Law and Policy Update - June 2014 #3

Environmental and Policy Focus: Long-term money a big boost for California's high-speed rail - Contra Costa Times - Jun 17: Gov. Jerry Brown scored a win for California's $68 billion high-speed rail project by...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

Mainebiz Real Estate Insider – ABC 123: DEP Says You’re A PRP – How to avoid becoming an environmental acronym casualty

In Maine, anyone who has owned or operated an uncontrolled hazardous substance site from the time a hazardous substance was first deposited up to the present is considered by the Maine DEP to be a potentially responsible...more

Recent Cases of Note

District of New Jersey Denies Class Certification in Title Insurance Case on Grounds of Ascertainability - In the latest in a series of decisions from courts in the Third Circuit regarding ascertainability of a...more

Statute of Repose: A New Weapon in Environmental Defense Counsel’s Arsenal

The June 9, 2014, Supreme Court ruling in CTS Corp v. Waldburger represents a victory for companies and landowners with legacy environmental liabilities in states with a statute of repose applicable to tort claims. Moreover,...more

Supreme Court Holds That CERCLA Preemption Is Inapplicable to Statutes of Repose

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), preempts statutes of limitations applicable to state-law tort actions for personal injury or property damage in certain...more

Supreme Court rules that statutes of repose may bar state tort claims under CERCLA

On June 9, 2014, the United States Supreme Court, in CTS Corp. v. Waldburger, ruled that an individual state’s statute of repose is not preempted by the Comprehensive Environmental Response, Compensation, and Liability Act of...more

The “Discovery” Rule Is No Longer Supreme: The Supreme Court Holds That State Statutes of Repose Are Not Preempted by CERCLA

On June 9, 2014, the Supreme Court ruled in CTS Corp. v. Waldburger et al. that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or the “Superfund” law), which preempts state statutes...more

Supreme Court Sends Strong Signal that Lower Courts Should Stop Interpreting CERCLA “in a liberal manner” and Focus on the...

The Supreme Court’s decision in CTS Corp. v. Waldburger, No. 13-339, 573 U.S. __ (June 9, 2014), sends a strong message to lower courts that the oft-repeated refrain that CERCLA is a “remedial statute” that must be...more

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