Comprehensive Environmental Response, Compensation and Liability Act

News & Analysis as of

Arranger Liability for Sale of a Used Product: Standard of Metaphysics Or An Unstated Rule?

In Consolidated Coal Company v. Georgia Power Company,the Fourth Circuit recently applied the same four part test used by trial court(and blogged about here) to hold that the sale of a used product containing PCBs would not...more

Fourth Circuit Continues Trend toward Narrowing Scope of CERCLA Arranger Liability

Action Item: With federal courts moving toward limiting arranger liability under CERCLA, companies that sell new or used products containing hazardous substances should heed the guidance of those courts and take certain...more

In Cross-Border Contamination Case, Court Holds That CERCLA Displaces Federal Common Law Public Nuisance Claim

In yet another recent case involving the intersection of CERCLA and state law, the United States District Court for the Eastern District of Washington held that CERCLA legislatively displaced federal common law public...more

Expert Testimony May Be Required To Establish CERCLA Innocent Landowner Defense

On January 20, 2015, the United States District Court for the Eastern District of California in Coppola v. Smith, 2015 U.S. Dist. LEXIS 5127, addressed the application of CERCLA’s innocent landowner defense against a somewhat...more

Washington District Court Holds that CERCLA Displaces Federal Common Law Public Nuisance Claims

A Washington district court has recently held that the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) displaces federal common law public nuisance claims for damages. (Anderson v. Teck...more

Scanning The Post-Burlington Northern CERCLA Landscape

Since the U.S. Supreme Court issued its landmark decision in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009), holding that a party must “take intentional steps to dispose of a hazardous...more

Prospective Real Estate Purchasers Should Demand ASTM E 1527-13 Environmental Phase I Reports

Beginning on October 6, 2015, the United States Environmental Protection Agency (EPA) will require prospective purchasers of real estate to use the new ASTM E1527-13 Phase I Environmental Assessment (Phase I) standard (2013...more

CERCLA’s Confusion Between Section 107 and Section 113

Over a decade after the Supreme Court’s decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs...more

Is It Too Late to Just Throw Superfund to the Curb?

Last week, Judge Paul Borman of the Eastern District of Michigan, allowed a motion by the United States for judgment on the pleadings, dismissing a third-party complaint brought against the United States by Michigan...more

Washington Federal Court Finds Nuisance Claims Displaced by CERCLA

Expanding the reach of the federal displacement doctrine and the U.S. Supreme Court’s decision in AEP v. Connecticut, a federal district court for the first time held that the Comprehensive Environmental Response,...more

New York Federal Court Finds that CERCLA’s Petroleum Exclusion Covers Benzene Derived from Gasoline Degradation

In White Plains Housing Authority v. Getty Properties Corp., No. 13-cv-6282, 2014 WL 7183991 (S.D.N.Y. Dec. 16, 2014), the district court applied the petroleum exclusion of the Comprehensive Environmental Response,...more

Parent Corporations Beware: Control Over Your Subsidiaries is a Double-Edged Sword

The decision earlier this month in Cyprus Amax Minerals v. TCI Pacific Communications is a useful reminder that corporate form exists for a reason and that parent corporations who ignore corporate niceties do so at their...more

Fifth Circuit Relieves Company of "Arranger" Liability under CERCLA

In Vine Street LLC v. Borg Warner Corp., No. 07-40440, the Fifth Circuit held that, in light of the U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009), BorgWarner...more

Case Settled! New Jersey Supreme Court Says No Time Limits to Spill Act Contribution Claims

Action Item: Defendants can no longer assert a statute of limitations defense to claims of contribution under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq. (“Spill Act”). ...more

Air Emissions May Give Rise to CERCLA Liability

The Pakootas decision appears to be the first in which any federal court has directly addressed this issue. On December 31, 2014, in a case of first impression, Judge Lonny Suko of the U.S. District Court for the...more

The Need For Expert Evidence To Make Out An Innocent Landowner Defense Under CERCLA

As every litigator knows, evidence almost always tells a story that is untidy and riddled with loose ends. This was illustrated by a recent innocent landowner case in California — Coppola v. Smith. There, a company had...more

CERCLA Settlements Get a Different Look: the Ninth Circuit May Have Set a New Level of Scrutiny in State of Arizona v. Tucson

The Ninth Circuit has further defined the level of scrutiny required by a court when evaluating settlements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In State of Arizona v. City...more

WVDEP Files Proposed Legislative Rule Implementing AST Act

In the latest development relating to West Virginia’s new aboveground storage tank (“AST”) legislation, on December 22, 2014, the West Virginia Department of Environmental Protection (“WVDEP”) filed with the West Virginia...more

December 2014 - Real Estate FOUNDATION

In this issue - The CERCLA Divisibilty Defense: Back from the Dead? - Springing Recourse for Breach of Solvency and Debt Payment Covenants? Does New York Need Cherryland Legislation? - Mid-Construction...more

Environmental Due Diligence Update – New Standard for Conducting Environmental Site Assessments (Phase I Reports) in 2015

EPA published the final rule for the new site assessment standards. The new rule has been in the works for well over a year and represents the final implementation phase of the new “All Appropriate Inquiries” (AAI) standard...more

New York District Court Holds Lessee Not Liable Under CERCLA as an Owner

A New York federal district court recently held that a lessee will not be found liable under CERCLA as an owner where the lessee does not possess sufficient indicia of ownership. (Next Millennium Realty, LLC v. Adchem Corp.,...more

CERCLA Cost Recovery v. Contribution Again: It’s Still Unfair

Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with...more

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

Superfund Rant For a New Congress

So the new Congress will be controlled by the GOP. The House and Senate will consider various bills to reign in EPA authority. Here’s one relatively modest suggestion for congressional consideration: amend CERCLA to limit...more

Minnesota Federal Court Clarifies Pleading Standard in Vapor Contamination Case

In an opinion that may help clarify the jurisdictional and pleading requirements for plaintiffs seeking damages and injunctive relief for alleged injuries from vapor intrusion, the federal district court in Minnesota denied a...more

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