Periconi, LLC

May 2009 Archives

The Western District of Washington Leaves a PRP without a Remedy, but Upholds the Broader Policy Objectives of CERCLA.

The Western District of Washington also recently followed the holding from the Aviall case. See Port of Tacoma v. Todd Shipyards Corp., 2009 U.S. Dist. LEXIS 5884 (W.D.Wa., January 14, 2009). The Port of Tacoma sued Todd Shipyards in a contribution action under CERCLA ยง 113(f) for recovery above an equitable share of costs the Port incurred in remediating the subject Superfund site, which had been used for shipbuilding operations during World War I and World War II, pursuant to a consent decree with the United States. 

The Second Circuit Follows the Supreme Court's Holdings in Atlantic Research and Cooper Industries.

In a recent Second Circuit decision, W.R. Grace & Co. v. Zotos International, No.: 05-cv-2798 (March 4, 2009), the Court followed two recent Supreme Court decisions on the oft-contested issue of when and under what sections of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") (the "Superfund" statute) a potentially responsible party ("PRP") can recoverits response costs.

The Third Department upholds jury award of $6,325,000 in penalties in an oil spill case

On February 10, 2009, the Appellate Division, Third Department, upheld a jury award of $6,325,000 in penalties against three defendants - property owner, gas supplier and station operator - as being not excessive and well within the bounds of the Navigation Law, where the defendants failed to respond to a discharge at the site. State of New York v. LVF Realty Co., Inc., ___ N.Y.S.2d ___. Slip Op. 01103, February 10, 2009. 

The Second Department Overturns a Jury Award of Stigma Damages in Oil Spill Case

In a recent oil spill case under the Navigation Law, an intermediate state appeals court, the Appellate Division of the State Supreme Court, Second Department overturned a $225,000 jury award of "stigma" damages (plus $61,600 fees award) to a private homeowner for devaluation of his property values - not for clean-up costs - due to contamination that leaked onto this Nassau County property from the neighboring property. Fusco v. State Farm Fire & Cas. Co., 57 A.D.3d 939 (2d Dep't 2008).

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