The Court of Appeals for the 7th Circuit has long struggled with interpreting the scope of CERCLA liability, often issuing poorly-reasoned and inconsistent decisions. This trend continued with its recent opinion in Von Duprin vs Moran Electric Service, Inc., et al, 2021 U.S. App. LEXIS 26726 (7th Cir. 9/3/2021) where the court issued a number […]
In 1990, a municipality in Long Island installed a granulated activated carbon (“GAC”) adsorption system at a cost of $1.25MM to remove volatile organic compounds (“VOCs”) that had been detected in two public drinking water wells. When the GAC proved ineffective in reducing the VOCs to the maximum contaminant levels (MCLs), the municipality commenced construction
You Say “Removal”, I Say “Remedial” Read More »
A property owner was found liable under the New York Navigation Law for cleanup costs incurred by the New York State Department of Environmental Conservation (NYSDEC)responding to gasoline fumes that had migrated a quarter of a mile from the gas station. While the vast majority of the state’s costs were associated with the cleanup of
Landlord Liable For NYSDEC Costs Responding to Vapors at Off-Site Properties Read More »
Last year, we criticized the ruling in Stratford Holdings LLC v Fog Cap Retail Investors LLC where the district court for the southern district court of Georgia appeared to conflate reporting obligation of section 103 of CERCLA with the cost recovery and contribution provisions of CERCLA when the court granted a motion to dismiss by the defendant
4th Circuit Allows Landlord Cost Recovery To Proceed Read More »
2012 has turned out to be a significant year for NJ Spill Act litigation. Two opinions from this fall have been particularly notable to transactional attorneys because they involved a very common scenario encountered in urban areas-namely, properties with a history of numerous dry cleaner operators. Because dry cleaners are small businesses, their environmental impacts
Historic Dry Cleaners At Heart of Two Key NJ Spill Act Cases-Part 1 Read More »
In the 1980s and 1990s, judges usually began CERCLA cases discussing that CERCLA was a remedial statute that Congress intended to be broadly construed. Judges seemed afraid of the problem of toxic wastes and often uncritically accepted government arguments that cast a wide liability net that caught a wide range of defendants. Even in private
NY District Court Misconstrues CERCLA “Facility” Definition Read More »
EPA entered into a settlement agreement with the Bank of India (Bank) as part of an innovative settlement to facilitate the sale and reuse of an abandoned facility in Cortland, NY. The settlement was published in the today’s Federal Register .The proposed settlement is subject to a 30-day comment period. The settlement involves the Buckbee-Mears
Bank Enters Into Settlement With EPA For Contaminated NY Site Read More »
There is no polite way to sugarcoat the opinion of the United States District Court for the Northern District of Georgia in Stratford Holdings LLC v Fog Cap Retail Investors LLC and Footlocker Retail , Inc. , No 1:11-C-3463 (Sept. 17, 2012).This is a bad decision that reflects a fundamental misunderstanding of CERCLA. If followed
Georgia District Court Narrowly Construes Right of Cost Recovery Read More »
In U.S. v. NCR Corp., 2012 U.S. App. LEXIS 16097 (7th Cir. 8/3/12) the United States Court of Appeals for the Seventh Circuit declined to adopt the Third Restatement of Torts reflecting a national trend away from joint liability. This ruling seems to fly in the face of the legislative history of the Comprehensive Environmental
7th Circuit Declines To Apply Third Restatement of Torts in Apportionment Case Read More »
A federal district court declined to dismiss a RCRA 7002 action brought by a foreclosing lender against the owner of an adjacent dry cleaner in Forest Park National Bank & Trust v Ditchfield, 2012 U.S. Dist. LEXIS 103007(N.D. Ill. 7/24/12). The court also granted summary judgment on the bank’s CERCLA cost recovery claim. One reason
Foreclosing Lender RCRA Action May Proceed Read More »