CERCLA

Vapor Intrusion -- EPA Offers Guidance For Comment, But Now More Issues Than Ever

by Kenneth Gray | Pierce Atwood LLP on 5/8/2013

After being taken to task by states and its own Inspector General for lack of final guidance on Vapor Intrusion, EPA has just released draft guidance documents for hazardous substances and petroleum products for comment. The...more

What Response Costs Are Necessary Under CERCLA

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 4/24/2013

In a post last year, I discussed what I I thought was the dubious dismissal of a CERCLA cost recovery action in Stratford Holding, LLC v. Fog Cap Retail Investors LLC. ...more

EPA Issues Long-Awaited Vapor Intrusion Guidance for Public Comment

by John Gregory | Farella Braun + Martel LLP on 4/23/2013

More than ten years after issuing draft guidance regarding the increasingly significant subject of vapor intrusion (VI), the U.S. Environmental Protection Agency (EPA) has just released for public comment drafts of two...more

Insurance Recovery Law -- Apr 18, 2013

by Manatt, Phelps & Phillips, LLP on 4/19/2013

Ninth Circuit Narrows Insurers' Options in Pursuing Subrogation Claims Under CERCLA - Why it matters: The Ninth Circuit confirmed that Chubb could have maintained a subrogation action against potentially liable parties...more

Fourth Circuit Restricts “Bona Fide Prospective Purchaser” Defense

by William Cleveland, IV, Perrin Dargan, III, David Franchina | K&L Gates LLP on 4/19/2013

On April 4, 2013, the Fourth Circuit issued a ruling in PCS Nitrogen Inc. v. Ashley II of Charleston that, among other things, may limit the availability of the “bona fide prospective purchaser” (“BFPP”) defense that Congress...more

Fourth Circuit Brownfields Decision Stops Short Of Worst-Case Outcome

by Todd Fracassi, Jane Luxton | Pepper Hamilton LLP on 4/17/2013

In a closely watched Superfund case decided April 4, 2013, the Fourth Circuit Court of Appeals interpreted the scope of landowner liability protections Congress put in place in 2002 to "promote the cleanup and reuse of...more

PCS Nitrogen Inc. v. Ashley II of Charleston: Required Reading for Superfund Lawyers

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 4/9/2013

The Fourth Circuit handed down a primer on CERCLA liability last week in PCS Nitrogen Inc. v. Ashley II of Charleston. It should be required reading for Superfund lawyers. The facts in the case are worthy of a law school law...more

EPA Clarifies "Innocent Tenant" Liability Under CERCLA

by Emily Lamond, Robert Lawrence | Orrick, Herrington & Sutcliffe LLP on 4/8/2013

Recent EPA guidance imposes new environmental due diligence and compliance requirements on prospective commercial and industrial tenants. The guidance purports to clarify an exemption from liability, but actually confirms...more

District Court Judge Confirms Summary Judgment Victory for Policyholder Regarding the Duty to Defend and the Pollution Exclusion

by Luke Debevec, John Ellison | Reed Smith on 4/2/2013

In January, we reported on developments in Wiseman Oil Co. v. TIG Insurance, a case pending in the United States District Court for the Western District of Pennsylvania involving interpretation of the "pollution exclusions"...more

The United States Allocated 40% of Liability for Contamination Caused by a Contractor’s Manufacturing Operations

by Scott Broadwell, Lynn Manolopoulos | Davis Wright Tremaine LLP on 3/21/2013

A recent decision by a federal court in the Central District of California found the United States liable for 40% of the response costs related to contamination from the manufacture of ammunition and rocket motors for the...more

Rhode Island Cleans Up Problematic Superfund Precedent That Undermined Federal Settlements

by Thomas Allen, Sheila Harvey, Liz Lord | Pillsbury Winthrop Shaw Pittman LLP on 3/21/2013

The U.S. District Court for the District of Rhode Island has vacated its 2010 summary judgment decision in Ashland Inc. v. GAR Electroforming, 729 F. Supp. 2d 526 (D.R.I. 2010), just days after receiving an amicus memorandum...more

The Intersection of Subrogation and Environmental Law — The Ninth Circuit’s Tyranny of Logic over Common Sense

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 3/20/2013

In a decision that exalts casuistry over common sense, the Ninth Circuit recently held that an insurer who reimbursed $2.4 million in CERCLA response costs to its policyholder had no subrogation rights against the potentially...more

Breathing New Life into Brownfields – The BUILD Act of 2013

by Kristen Sherman | Adler Pollock & Sheehan P.C. on 3/13/2013

On March 7, 2013, Senators Lautenberg, Inhofe, Crapo and Udall introduced the Brownfields Utilization, Investment, and Local Development Act of 2013, which would amend the Comprehensive Environmental Response, Compensation...more

Unstated Rule on Superfund Liability for Sale of a Usable Product — One Year Later

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 3/1/2013

Exactly a year ago, I posted a blog that argued that the decisions on Superfund liability for the sale of usable product could be distilled down to an ”unstated rule” — a party will be held liable as having intended to...more

EPA Issues Revised Enforcement Guidance Regarding Tenant Liability Under CERCLA’s Bona Fide Prospective Purchaser Provision

by Douglas Eilender | Cole Schotz on 2/27/2013

Late last year, the United States Environmental Protection Agency (“EPA”) issued Revised Enforcement Guidance Regarding the Treatment of Tenants under the Federal Comprehensive Environmental Response, Compensation, and...more

It Is A Unitary Government Afterall: Privilege For Intra-governmental Communications

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 2/21/2013

About a year ago, I blogged about a decision by the federal district court in the Lower Fox River case ruling that there was no attorney-client privilege protecting communications between government lawyers representing the...more

EPA Lifts Threat of CERCLA Liability for Some Tenants of Brownfields

by Thomas Hogan, Christopher Marraro | BakerHostetler on 2/18/2013

Tenants who lease currently or formerly contaminated property can now benefit from protections from cleanup liability that were once available only to purchasers of such property. EPA announced its new policy in a December...more

Recent Ruling Confirms That Cost of Compliance with a PRP Letter Is Insured Under CGL Policies

by Revelle Gwyn, Elizabeth Hamrick, Katherine Henry, Sid Trant | Bradley Arant Boult Cummings LLP on 2/8/2013

In a recent ruling of interest to any company named as a potentially responsible party (“PRP”) at a Superfund site anywhere in the country, the Alabama Supreme Court has followed the majority of state courts and held that a...more

Another Win for Pennsylvania Policyholders Concerning the Duty to Defend and the Pollution Exclusion

by Luke Debevec, John Ellison | Reed Smith on 2/6/2013

Policyholders with pollution-related liabilities in Pennsylvania scored another win in January, in the ongoing litigation battle with insurance companies that argue for the broadest possible interpretation of the "pollution...more

In Alabama, Cost of Complying with a PRP letter Now Insured Under CGL Policies

by Revelle Gwyn, Elizabeth Hamrick, Katherine Henry, Sid Trant | Bradley Arant Boult Cummings LLP on 1/16/2013

In a recent ruling of interest to any company named as a potentially responsible party (“PRP”) at a Superfund site, the Alabama Supreme Court has held that a PRP letter constitutes a “suit” under a comprehensive general...more

Brownfield Tenants Gain CERCLA Liability Protection

by Bruce Flushman | Wendel, Rosen, Black & Dean LLP on 1/15/2013

Good News: Brownfield Tenants Gain CERCLA Liability Protection - In December 2012, an Environmental Protection Agency (EPA) Guidance Memo set out a new EPA enforcement policy. In sum, on a discretionary basis, the EPA...more

EPA Guidance Further Clarifies The Protections Available To Tenants Under Superfund’s BFPP Defense

by Ronald Farley | Burr & Forman on 1/11/2013

As part of an evolving effort to encourage the redevelopment of brownfield properties, the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) was amended in 2002 to provide...more

New EPA Guidance Gives Long-Term Tenants Direct Access to the Bona Fide Prospective Purchaser Defense and Greater Protection from...

by Jeffrey Kirschenbaum | Buchalter Nemer on 1/4/2013

Newly issued guidance by the U.S. Environmental Protection Agency (USEPA) suggests that prudent long-term tenants of commercial and industrial properties should conduct environmental due diligence before entering into a...more

CERCLA Cost Recovery or Contribution Claim: Another Judicial Misstep

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 12/31/2012

The chaos unleashed by Aviall continues in a recent decision by the Seventh Circuit. In Bernstein v. Blankert, the Seventh Circuit revisited the issue whether a party having entered into an Administrative Order by Consent...more

Is CERCLA More Reasonable Than the Common Law? Only in California, I Hope

by Seth Jaffe | Foley Hoag LLP - Environmental Law on 12/28/2012

In Burlington Northern, the Supreme Court made clear that, in order to impose liability on a defendant as an “arranger” under Superfund for the sale of a product, the plaintiff must demonstrate that the defendant "must have...more

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