Contaminated Properties

News & Analysis as of

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

Arms’ Length Sale of Contaminated Property is Best Indicator of Value for Tax Appeal Purposes

In a recent Appellate Division decision (Orient Way Corp. v. Tp. of Lyndhurst), the Tax Court’s prior determination that an arms’ length sale of the subject contaminated property provided credible evidence of true market...more

NJ Supreme Court to Rule on Application of General Six-year Statute of Limitations to Spill Act Claims

The Supreme Court of New Jersey recently heard arguments on whether private claims for contribution brought under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (Spill Act) are subject to a...more

Significant Victory for Defendants in Sierra Club Pollution Suit

In Sierra Club v. Energy Future Holdings Corp., No. W-12-CV-108 (W.D. Tex. August 29, 2014), a Texas federal judge recently awarded $6.4 million in attorneys’ fees and costs to the defendants in a pollution suit brought by...more

Environmental Claims: The Gift That Keeps On Giving

Asarco LLC v. Goodwin, 756 F.3d 191 (2nd Cir. 2014) – A reorganized company (Asarco) sought contribution for payment of environmental claims from beneficiaries of trusts created under John D. Rockefeller’s will. The...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

PADEP Proposes Tough New Policy for Enforcing Oil and Gas Violations and Responding to Water Contamination Complaints

On October 3, 2014, the Pennsylvania Department of Environmental Protection (“PADEP”) unveiled a new draft policy that would strengthen its compliance and enforcement protocols for both unconventional and conventional oil and...more

BC Supreme Court Stresses “Polluter Pays” in Awarding Damages for Remediation of Contaminated Site

The BC Supreme Court recently clarified several principles under the Environmental Management Act relating to liability for remediation costs for contaminated sites. In JI Properties Inc v PPG Architectural Coatings Canada...more

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

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

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

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