CERCLA

CERCLA Contribution Action Not Available for BCP/VCP Cleanup

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

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

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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Company Not Liable For Disposal By Employee

A federal district court ruled that a company was not liable for improper disposal of PCB-contaminated capacitors by a former employer because the employer was not aware of nor had authorized the actions of its former employee. In essence, the court concluded that the employee had engaged in an independent venture for which his employer …

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Ct Rules Existence of Seller Not Relevant For Successor Liability

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

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

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

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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Federal Ct Says NY Waited Too Long to File Cost Recovery

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

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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