Periconi, LLC

Posts tagged "CERCLA Liability"

Supreme Court May Determine When Tenants Are Subject to "Ownership Liability" Under CERCLA

When is a tenant liable as an owner under the federal Superfund law (aka CERCLA)?

What Is Required to Retain the Bona Fide Prospective Purchaser Exemption from CERCLA Liability?

Have you been in the market to buy property, but learned that the property was contaminated? There are steps that you can take to avoid opening yourself up to liability.

When is Judicial Review Available for an Ongoing Federal Superfund Remediation?

The U.S. Supreme Court has recently declined to consider a case centering on the question of when a citizens' group may challenge an ongoing environmental remediation under the federal Superfund law. The Court's decision lets stand a May 2014 ruling by the Seventh Circuit that chipped away at Superfund's general prohibition on legal challenges to ongoing removal or remedial actions.

EPA Clarifies What Phase I Environmental Site Assessment Procedure Satisfies its All Appropriate Inquiries Rule

As most folks in the commercial real estate industry know, the Bona Fide Prospective Purchaser exemption from liability under the federal Superfund law is a very useful tool. Accordingly, a Phase I Environmental Site Assessment is standard practice for nearly every purchase of commercial real estate because it helps to satisfy EPA's "All Appropriate Inquiries" requirement for obtaining BFPP status and avoiding the often harsh liability associated with Superfund. 

Soil Vapor Intrusion Concern Prompts EPA to Support Revision to Phase I Environmental Site Assessment Protocol

The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the occupants. Known as soil vapor intrusion, this threat can come from undiscovered contamination beneath a building, or even from the remnants of previously remediated soil or groundwater.

When Does the Discovery of Historic Contamination Qualify as a "Sudden and Accidental" Release?

Many insurance policies contain a "pollution exclusion" which seeks to exclude coverage for losses arising from pollution, except in the case of a "sudden and accidental" release. "Sudden and accidental" may bring to mind a burst pipe or overturned tanker truck, but a recent decision in the United States District Court for the Southern District of New York suggests that the interpretation can be much more complicated.

EPA Announces New Tenant Protections Under Superfund

EPA has just extended to tenants the Bona Fide Prospective Purchaser ("BFPP") protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement guidance memo allows tenants to hold onto it, assuming the tenant can meet certain requirements. 

EPA to Defend its "Proposed Plan" for Remediating the Gowanus Canal Superfund Site During Public Meetings on January 23 and 24, 2013

How do you clean up something as big and messy as the Gowanus Canal? On January 23-24, 2013, the United States Environmental Protection Agency will explain and defend its December 27, 2012, "Proposed Plan" for remediating the Gowanus Canal Superfund Site in Brooklyn, NY. The Proposed Plan formally identifies EPA's "preferred remedy" for the pollution in the Gowanus Canal-a technical term which actually describes a range of actions plans to take to clean up the canal-and explains its choices. The Plan resulted from the investigation it has conducted to date, including the Remedial Investigation and Feasibility Study is released in 2011.

Migration of Contamination Does Not Automatically Create a Single "Facility" Under CERCLA

A federal court in New York recently decided that the migration of subterranean contamination onto a neighboring property was not, by itself, a sufficient basis to hold a neighboring landowner jointly liable for remediation costs under the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA").

Can Entering Into a CERCLA Consent Decree Preclude Subsequent Cost Recovery Actions?

Congress enacted the Superfund Act, whose formal name is the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, in 1980 to promote the clean up (remediation) of properties, typically abandoned landfills or other sites, that had been contaminated by the disposal of hazardous materials. To further this goal, Congress cast a wide net and imposed strict liability for all "Potentially Responsible Parties" (PRPs) who contributed to the contamination at a site. See 42 USCS Sec. 9607(a). 

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