Hazardous Waste

Environmental Saga Involves Successor Liability, Bankruptcy and Environmental Justice

bankruptcy, CERCLA, common law, Corporate and Real Estate Transactions, Hazardous Waste / By

The most recent decision in Flake v. Schrader-Bridgeport Int’l, Inc., 2011 U.S. Dist. LEXIS 30372  (M.D. Tenn., Mar. 23, 2011) is just another chapter in this long-running environmental saga involving a successor liability, bankruptcy, toxic tort and environmental justice issues along with a piece of American automotive history. This well-traveled case began in a Tennessee county […]

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Claim For Contaminated Fill Barred By Statute of Limitations

common law, Environmental Due Diligence, Hazardous Waste / By

The movement and disposal of fill material from demolition sites tends not to be well-regulated. During the real estate bubble when demand for aggregate was at a premium, unsavory actors in the industry exploited the regulatory gaps. These companies would charge clients to dispose of contaminated fill, pocket the fees and then sell the materials

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Recent EPA PPAs Require Financial Assurances

Brownfields, Hazardous Waste / By

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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NY High Court Upholds State Superfund Regs

Hazardous Waste / By

The New York State Court of Appeals (New York’s highest court) rejected a challenge that the New York State Department of Environmental Conservation (NYSDEC) exceeded its authority when it promulgated regulations requiring state superfund sites to be remediated to “pre-disposal” conditions when feasible. In the Matter of New York State Superfund Coalition v New York

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Federal Ct Says NY Waited Too Long to File Cost Recovery

Hazardous Waste / By

The United States District Court for the Eastern District of New York dismissed a cost recovery action filed by the State of New York because the state waited too long to file its complaint. The outcome hinged on whether construction of wellhead treatment constituted a remedial action or removal action. This case is significant because New York

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Why Property Owners Should Consult Lawyers Before Signing Gas Leases

Fracking, Hazardous Waste, Lender Liability, oil spills / By

We have been sharing and commenting on articles discussing how lenders are becoming increasingly concerned about borrowers who lease their property to allow hydraulic fracturing (“fracking”). The operations permitted by the leases on what is typically rural or agricultural land include storage of hazardous substances and wastewater that likely would constitute defaults under the mortgages.

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NY Court of Appeals Hears Challenge to State Superfund Regulations

Hazardous Waste / By

The New York Court of Appeals heard oral argument on November 14th on whether the New York State Department of Environmental Conservation (NYSDEC)  exceeded its authority when its set a goal of cleaning hazardous sites to “pre-disposal conditions” in its superfund regulations. After the NYSDEC revised its Part 375 regulations in 2006, the New York

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Purchaser Found “Contributing to” Contamination for Failing to Provide Access for Remedial Activities

Hazardous Waste / By

Purchaser found contamination after closing and filed lawsuit under citizen suit provision of RCRA 7002 . Defendant brings counterclaim asserting that plaintiff is obstructing remediation by denying access. Court denies plaintiff motion to dismiss on grounds that its obstruction could be construed as active storage of wastes and allowing continued leaching of wastes. Therefore, plaintiff

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Confusion Over Scope And Timing of RCRA Cleanup Leads to Potential Liability for Brownfield Developer

Brownfields, Corporate and Real Estate Transactions, Environmental Due Diligence, Hazardous Waste / By

Last year, the brownfield community was rattled by the Ashley II decision of United States District court for the District of South Carolina holding that a brownfield developer failed to comply with the requirements of the Bona Fide Prospective Purchaser defense. The court ruled the developer did not comply with its post-closing continuing care obligations

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