Comprehensive Environmental Response, Compensation and Liability Act

News & Analysis as of

PRPs May Want To Dig In With Divisibility Defense

In a victory for potentially responsible parties at multiparty contamination sites, a federal district court in U.S. v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015), held a PRP established that environmental harm at a...more

A $6 Million Reminder to Observe Corporate Formalities: Environmental Prosecutors Pierce Another Corporate Veil with Ohio Decision

With ever-growing concern about environmental liability exposures, many shareholders rely on corporate structures – both simple and complex – to help insulate themselves from direct responsibility for the acts and omissions...more

District Court Imposes Divisibility Cap on Superfund Liability

A Wisconsin district court has ruled that NCR Corporation’s liability for contamination in the Fox River is limited to NCR’s share of contamination contributed to the river....more

PRP in CERCLA Enforcement Action Saves Millions of Dollars with Successful Divisibility Defense

Action Item: On March 15, 2015, the United States District Court for the Eastern District of Wisconsin in United States v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015), held that a potentially responsible party (“PRP”) at...more

Are Concurrent CERCLA Claims For Section 107(a) Cost Recovery and Section 113(f) Contribution Permissible?

Given the uncertainties after Cooper Industries v. Aviall about what cause of action a PRP has for recovering response costs under CERCLA, many parties take the prudent course of pleading claims under both for cost recovery...more

Louisiana Court Rules that Migration of Chemicals from Spill Not a “Continuing Tort”

In a case that may make it more difficult for plaintiffs to maintain years-old toxic tort cases in Louisiana, a state appellate court ruled that a 1983 chemical spill did not constitute a “continuing tort.” ...more

When Does a Judge Refuse an Unopposed Motion to Enter a Consent Decree?

Last week, Judge John Copenhaver refused to allow a motion by the United States to enter a consent decree that would have resolved government claims against DuPont concerning alleged violations of the Clean Air Act, CERCLA,...more

Non-Settling CERCLA Defendants Beware: Ninth Circuit Provides Lower Courts with Discretion to Allocate Liability Using Equitable...

There is a split of authority on how credits for settlements under the Comprehensive Response, Compensation and Liability Act (“CERCLA”) are allocated to non-settlors. Some courts have applied the proportionate share...more

Ninth Circuit Widens Judges’ Discretion to Allocate CERCLA Contribution Damages

Trial court may select the method of accounting for prior settlement in allocating response costs among liable parties, but claims to recover settlement payments are limited to costs consistent with the National Contingency...more

Ninth Circuit Addresses Several CERCLA Issues of First Impression in the Circuit

In AmeriPride Services Inc. v. Texas Eastern Overseas Inc., the Ninth Circuit examined several issues under CERCLA, some of which were issues of first impression in the Circuit, including: - Whether a district court...more

Allocating The Liability Shares of Settling PRPs Under CERCLA

Allocation of liability under CERCLA can get messy. One particularly complex issue arises in a private cost recovery action where some but not all the PRPs have settled with the private party. In contrast to a government...more

Dividing CERCLA Site Just Won't Cut It On Liability

In an order on March 3, U.S. District Judge William C. Griesbach, who is presiding over the long-running Comprehensive Environmental Response, Compensation, and Liability Act litigation concerning the Lower Fox River and...more

W.Va. Senate Bill 423 Amends Aboveground Storage Tank Act

Even before the June 6, 2014 effective date of the Aboveground Storage Tank Act (the “AST Act” or “Act”), W. Va. Code §§ 22-30-1 et seq., representatives of the industries most impacted by the expansive and detailed AST Act...more

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

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