How many remediation angels can dance on a single remediation pinhead? In the recent NL Industries v. ACF Industries ruling, a federal judge in the Western District of New York decided that, for the purposes of CERCLA cost recovery and declaratory judgment claims, all...
Superfund (CERCLA & State Superfund)
Supreme Court Declines to Weigh in on CERCLA Subrogation Case
Sometimes the Supreme Court's silence can be just as powerful as a decision. Or as James Joyce said about "absence" - it's the "highest form of presence."The effect of the Court's declining to grant certiorari in the case of Chubb Custom Insurance Company v. Space...
Environmental Disaster Highlights the Need for TSCA Reform
Love Canal, New York; Cuyahoga River, Ohio; Times Beach, Missouri; Hopewell, Virginia; Three Mile Island, Pennsylvania. These are the sites of some of the worst environmental contamination in our nation's history. Each of these disasters drew significant public...
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...
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...
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...
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,...
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...
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...
11th Circuit Decision Follows that of Niagara v. Mohawk: Under CERCLA, Parties Who Enter Into Consent Decree with Government Are Limited to a § 113(f) Contribution Claim
Since the Second Circuit Court of Appeals decided Niagara Mohawk Power Corp v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010), a number of other Circuits have followed the Second Circuit's holding that parties who enter into a consent decree with the U.S....