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April 2010 Archives

The First Department Upholds the Supreme Court's Rejection of DEC's Use of a "But-For" Test in Determining Eligibility under the Brownfield Program

The First Department, in the Matter of East River Realty v. N.Y. State Department of Environmental Conservation, 2009 NY Slip Op 9381 (N.Y. App. Div., 1st Dep't 2009), recently upheld a Supreme Court ruling that the New York State Department of Environmental Conservation ("NYSDEC") cannot use a "but-for" test in determining eligibility into its Brownfield program. We reported on the Supreme Court's decision in a prior post, and refer you there for a recitation of the relevant facts and reasoning of the Supreme Court. 

The Second Circuit decides another CERCLA contribution case in Niagara Mohawk v. Chevron (Part I)

The Second Circuit's recent decision in Niagara Mohawk Power Corp v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. Feb 24, 2010), is a study (yet again) in the claims available to private parties to recover costs incurred in remediating hazardous wastes. The primary issue on this appeal is whether a potentially responsible party ("PRP") that settled its CERCLA liability with the state, but not with the EPA, has a right to seek contribution from other PRPs.

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