Larry Schnapf

Ct Says Federal Statute of Limitations Bars New Source Review Violations

Air Pollution /

In US v Ameren Missouri, 2011 U.S. Dist. LEXIS 152426 (E.D.Mo. 1/27/12), the federal government alleged that the defendant had violated the Clean Air Act and the State Implementation Plan (SIP) when it performed major modifications for a coal-fired power plant without first undergoing new source review (NSR) for prevention of significant deterioriation (PSD). EPA […]

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Two NY State Courts Uphold Zoning Ordinances Banning Fracking

Fracking /

Two New York State trial courts have upheld town zoning ordinances that prohibit fracking operations. In Anschutz Exploration Corp. v Town of Dryden, 2012 N.Y. Misc. LEXIS 687 (Sup Ct-Tomkins Cty 2/21/12) and Cooperstown Holstein Corporation v Town of Middlefield, No. 2011-0930 (Sup. Ct-Otsego Cty. 2/24/12), the plaintiffs argued that the state Oil, Gas and

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Owner Incurs $1MM On Cleanup But Ct Says No “Due Care”-Owner Waited Too Long to Act

bankruptcy, CERCLA /

The second our series of recent cases involving the due care element of the CERCLA third party defense is State of New York v Adamowicz, 2011 U.S. Dist. LEXIS 102988 (E.D.N.Y. 9/13/11) where a property owner was unable to establish that it exercised due care despite spending over $1MM addressing environmental concerns at its site.

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Reports of the Demise of CERCLA “Arranger” Liability Proving to Be Premature

CERCLA, Corporate and Real Estate Transactions /

In Burlington Northern & Santa Fe Railway Co. v. United States, 129 S.Ct. 1870 (2009), the United States Supreme Court held that to establish that a defendant is a CERCLA “arranger” or generator under § 9607(a)(3), a plaintiff must  establish that the defendant intended to dispose hazardous substance. The court said that while an entity’s knowledge that a product

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Abandoned USTs Continue To Haunt Landlords With Old Leases

oil spills, Underground Storage Tanks /

Many commercial properties are subject to old leases that were originally negotiated prior to the advent of environmental laws. These leases not only do not address environmental issues but also may contain clauses that can create liability for landlords when the property contains USTs. One of the more problematic clauses in old leases are those

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Court Interprets Scope of Indemnity Clauses Involving Deepwater Horizon Gulf Oil Spill

Corporate and Real Estate Transactions, oil spills /

As the trial date for the sprawling Deepwater Horizon Gulf Oil Spill litigation date rapidly approaches, the federal district court has been busy issuing decisions to help refine the issues. Two of these opinion involved interpreting the scope of contractual indemnities-one of our favorite topics. The first opinion involved cross-motions for partial summary judgment filed

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Insurance Requirement Allows Voidable Indemnity Clause To Be Enforceable

Corporate and Real Estate Transactions, environmental insurance, Underground Storage Tanks /

Can a party be indemnified for its own negligence? In many states, such provisions are void as against public policy. Other some states allow enforcement of indemnification for the indemnitee’s own negligence when the clause expressly references “negligence.” Likewise, many states will enforce indemnities where the indemnified party is strictly liable because of its status

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Court Allows Discovery To Proceed on Fracking Practices For Reserve Pits

Fracking /

Regulators are increasingly focusing on management of the wastewater and other chemicals used in fracking operations. The recent case of Kartch v EOG, 2011 U.S. Dist. LEXIS 130711 (D.N.D 11/10/11) illustrates the legal issues that property owners and drillers are increasingly having to face when negotiating drilling leases. In this case, the plaintiffs purchased agricultural

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