The United States Supreme Court issued a trilogy of significant administrative law cases in the last week of its 2023-24 term. The most important of these decisions for brownfield and superfund practitioners was Loper Bright Enterprises v. Raimondo, 2024 U.S. LEXIS 2882 (June 28, 2024) where the Court abandoned its 40-year old “Chevron” doctrine that […]
SCOTUS Ends Chevron Deference-The Wicked Witch is Dead Read More »
A federal court found there were triable issues if a purchaser qualified as a bona fide prospective purchaser (BFPP) because of alleged flaws in a phase 1 environmental site assessment. In Stratus Redtail Ranch LLC v. IBM, 2022 U.S. Dist. LEXIS 8723 (D. Col. 1/18/22), the plaintiff had acquired a 290-acre parcel of agricultural land
Some of the more interesting CERCLA cases involve lawsuits between current and former property owners. Usually, the current owner assumes it qualifies as bona fide prospective purchaser (BFPP) or for the Innocent Landowner (ILO) Defense and sues the defendant/former owner for cost recovery. The defendant/former owner invariably files counterclaims alleging the current owner/plaintiff is not
Much of the focus of the 2021 revisions to ASTM Phase 1 Environmental Site Assessment Standard E-1527 was to clarify the custom and practice for performing historical investigations-particularly for adjoining properties. Unfortunately, for an architectural firm that dabbled in the phase 1 marketplace these clarifications came too late. In Hathaway Homes, Phase II Limited Partnership
In a case that has been closely followed by participants in the environmental due diligence market, a magistrate judge has issued a report (2024 R&R) in Sanborn Library LLC v. Eris Information Inc., 2024 U.S. Dist. LEXIS 76134 (S.D.N.Y. March 25, 2024) recommending dismissing copyright infringement claims of The Sanborn Library LLC (SBL) against defendant
Magistrate Recommends Dismissing EDR Copyright Infringement Case Over Sanborn Maps Read More »
EPA will publish a final rule in the federal register on December 15th amending its All Appropriate Inquiries (AAI) Rule by recognizing ASTM E1527-21 as a method for complying with AAI and withdrawing the reference to ASTM E1527-13. The rule will become effective 60 days from the date of publication in the federal register. The
EPA To Publish AAI Update Withdrawing Reference to ASTM E1527-13 Read More »
As we predicted, EPA received numerous negative comments to its Direct Final Rule that would have recognized that the new ASTM E1527-21 phase 1 standard may be used to comply with the All Appropriate Inquires (AAI) rule for asserting certain landowner liability defenses and qualify for brownfield grants. All of the comments criticized EPA’s plan to
When Congress enacted the federal Superfund law in 1980, it provided that liability should be governed by evolving notions of common law. The Second Restatement of Torts was in effect at the time the law was passed and favored imposition of joint liability when two or more parties created a common harm. However, there has
My Article on Why Joint Liability Should No Longer Be the Default Standard Under CERCLA Read More »
In our prior blog, we announced that the Environmental Protection Agency (“EPA”) would publish a proposed rule and direct final rule proposing to amend and amending the All Appropriate Inquiries rule (“AAI”) to reference the revised ASTM E1527-21 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process’’ (“E1527-21”) and allowing it to
Expect Adverse Comments as EPA Drops Ball on ASTM Recognition Read More »
EPA has released a pre-publication copy of its proposed and direct final rule to recognize E1527-21 as a method for complying with its All Appropriate Inquiries (AAI) Rule. If EPA does not receive any negative comments, the final direct rule will become effective upon the expiration of the public comment period. Upon the effective date,
EPA Scheduled to Publish Recognition of ASTM E1527-21 in March 14th Federal Register Read More »