The United States District Court for the Southern District of New York recently confirmed that a party's liability to clean up a contaminated property was not discharged as part of a Chapter 11 reorganization, since such liability was not a "claim" under the...
Year: 2011
“Fracking NY” Blog Series: Part 1 – Overview of Fracking in the Marcellus Shale Region of New York
Introduction to 's "Fracking NY" Blog Series does not represent clients on any side of this, the most significant environmental controversy in New York at this time - not the companies drilling for gas, or...
EPA Issues Interim Guidelines for Urban Agriculture on Brownfield Sites
Urban agriculture is exploding in cities - large and small - throughout the nation. In many cities, local land use laws and zoning ordinances are being amended or drafted to support this new-found passion. But with precious "green" space in cities (and rooftops in...
Owners of Automobile Repair Shop Found Strictly Liable for Petroleum Discharge under NY Oil Spill Act
If you're familiar with the harsh reality of property owner liability under the New York State Navigation Law's Oil Spill Act, this headline shouldn't raise any eyebrows. However, the holding of State of New York v. C.J. Burth Services, Inc., 79 A.D.3d 1298, 915...
Sole Shareholder of Company that Owned Contaminated Site Found Liable as a “Current Operator” under CERLCA
In Litgo New Jersey, Inc. v. Martin, 2011 U.S. Dist. LEXIS 2033 (D.N.J. Jan. 7, 2011) (denying Motion for Rehearing), the sole shareholder of company (a single-purpose entity) that owned a contaminated property was found liable as a "current operator" under CERCLA...
U.S. Supreme Court Refuses to Hear Attack on CERCLA’s Constitutionality
On June 6, 2011, the Supreme Court of the United States ended a decade of litigation when it denied a writ of certiorari (i.e., refused to review) a 2010 decision of the D.C. Circuit Court of Appeal which affirmed the trial court's decision deny General Electric's...
DEC Reports Increase in Brownfields Applications and Approvals; NYS Bar’s Efforts to Improve the Program Overall
The DEC reported that it received 46 Brownfields Cleanup Program ("BCP") applications during 2010-2011, an increase of 15% from the previous year. DEC approved 38 of those applications, up from 26 from the year before. This is good news both for developers and...
Failure to Specify Specific Contaminant in Notice of Intent to Sue Kills RCRA Claims
The Second Circuit Court of Appeals threw out two claims under RCRA for failure to specify the specific contaminants alleged to cause the complained-of harm in the Notice of Intent to Sue.In Brod v. Omya Inc., No. 09-4551-cv (2d Cir. July 18, 2011), the Second Circuit...
Circumstantial Evidence May Not Always Be Enough to Establish “Arranger” Liability under CERCLA.
In DVL Inc. v. General Electric Co., 2010 U.S. Dist. LEXIS 128810 (N.D.N.Y. Dec. 6, 2010), the United States District Court for the Northern District of New York clarified what constitutes proper use of circumstantial evidence to establish "arranger" liability under...
The Ninth Circuit’s decision holding a permittee is not an “Owner” for purposes of CERCLA liability rejects the Second Circuit’s test.
In City of Los Angeles v. San Pedro Boat Works, -F.3d- (9th Cir. Mar. 14, 2011), the Ninth Circuit held that the holder of a revocable permit to operate a boat works, which is a facility for repair, maintenance and rebuilding of ships and boats, is not an owner for...