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.
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.
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.
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.
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").
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).
This blog series is based on an article written by James J. Periconi and published in the Winter 2008 Bloomberg Corporate News Journal. Mr. Periconi also discusses the details and the nuances of environmental due diligence of commercial real estate transactions in his bi-monthly continuing legal education course. Although we've blogged about environmental due diligence in the real estate transactions before (see here and here, for example), we decided it was time for a refresher series, including legal updates and discussion of new and exciting topics.
In a recent opinion, Town of Windsor v. Avery Dennison Corp., 2012 U.S. Dist. LEXIS 27264 (S.D.N.Y. Mar. 1, 2012), the United States District Court for the Southern District of New York allowed a town's claims of strict liability for ultrahazardous activities and trespass against a neighboring manufacturing company to proceed, while dismissing the town's private nuisance claim.
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 N.Y.S.2d 174 (N.Y. App. 3rd Dep't 2010), once again confirms the Draconian nature of strict liability for property owners in Spill Act cases.
In a recent decision in In Re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation ("In re MTBE"), No. 00 MDL 1898, and related case City of New York v. Exxon Mobil Corporation, No. 04 Civ. 3417 (S.D.N.Y. July 14, 2009), the District Court for the Southern District of New York relied on the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601, -U.S.- (U.S. May 4, 2009) ("BNSF"), in holding that the defendants have the burden of providing apportionment under the commingling theory of liability in that environmental toxic tort case.