CERCLA

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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CERCLA Contribution Action Not Available for BCP/VCP Cleanup

Brownfields, CERCLA, New York Brownfield Cleanup Program /

In Queens W. Dev. Corp. v. Honeywell Int’l, 2011 U.S. Dist. LEXIS 91795 (D.N.J. 2011), the plaintiff developers commenced remedial activities at two parcels that were accepted into the New York State Department of Environmental Conservation (NYSDEC) Brownfield Cleanup Program (BCP) and Voluntary Cleanup Program (VCP). Plaintiffs filed a lawsuit against the defendants as successors

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Cleanup Under NY Water Law Order Is CERCLA Removal Action for Statute of Limitations Purposes

CERCLA, Water Pollution /

Groundwater at many commercial properties in Long island and suburban areas of New York has been contaminated from discharges to dry wells, leaching pools and septic systems. In the 1980s, the New York State Department of Environmental Conservation (NYSDEC) frequently used consent orders issued pursuant to Title 17 of the Environmental Conservation Law which prohibits

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Review of Recent CERCLA Third Party Defense “Due Care” Caselaw-Part 1

CERCLA, Corporate and Real Estate Transactions /

The Third Party defense (42 U.S.C. 9607(b)(3) is probably the most important CERCLA defense. To assert the defense, a defendant must satisfy the following four elements or prongs: The release was solely caused by a third party; The defendant had no direct or indirect “contractual relationship” with the third party (“contractual relationship” prong); The defendant

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Ct Rules Existence of Seller Not Relevant For Successor Liability

CERCLA, Corporate and Real Estate Transactions /

One of the underpinnings of corporate law is that a purchaser of assets is not normally liable for the liabilities of the predecessor while a stock purchaser will take on the pre-existing liabilities. Courts have fashioned four exceptions to the no liability for asset purchaser rule. The exceptions are: express or implied assumption of liability

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County Liable to Developer for Migration of Landfill Gas

CERCLA, common law, Methane Gas, vapor intrusion /

A federal district court ruled that a Maryland county government was liable to a developer for damages resulting from the migration of landfill gas from a closed landfill to a planned development community. The court held that developer was entitled to recover response costs under CERCLA and that the subsurface migration of methane gas and VOCs

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Claims Against Coalbed Methane Operator Allowed to Proceed

coalbed methane, Fracking /

In a case that may have implications for fracking operations, a federal district court for the western district of Virginia allowed property damage claims to proceed against a coalbed methane operator. In C.J. Ritter Lumber Co., Inc. v  Consolidated Coal Co., 2011 U.S. Dist. LEXIS 95131 (W.D. Va. 8/25/11), the plaintiff entered into coal leases

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Recent EPA PPAs Require Financial Assurances

Brownfields, Hazardous Waste /

EPA recently published notice of two proposed prospective purchaser agreements (PPAs) . PPAs had been a critical tool for brownfield development prior to the 2002 CERCLA amendments that added the bona fide prospective purchaser (BFPP) defense. Following the 2002 amendments, EPA issued guidance that indicated that the agency would only issue PPAs in special circumstances since the BFPP was

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