Squaring the CERCLA: Federal Court in DC Weighs in on Interplay Between Action for Response Costs and Action for Contribution

One of the many pitfalls in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) compliance is navigating the interplay between cost recovery actions under CERCLA § 107(a) and contribution actions under CERCLA § 113(f). In general, parties who incur costs to respond to environmental contamination gain a cause of action under § 107(a) against other potentially responsible parties (PRPs). On the other hand, parties who have been held liable for cleanup costs through some government action may seek contribution from other responsible parties under § …

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NY’s Highest Court Makes it Clear – NYS DEC Has Authority to Unilaterally Remediate Hazardous Waste Sites

In October 2016, New York’s Appellate Division held that the New York State Department of Environmental Conservation (DEC) overstepped its boundaries when it unilaterally undertook the remediation of FMC’s site in Niagara County, New York. FMC Corp. v. New York State Dept. of Envtl. Conservation, 143 A.D.3d 1128 (3d Dept. 2016).

NY’s highest court – the Court of Appeals – smacked down the Appellate Division’s ruling and reversed it.

The facts:

For over 60 years, FMC has owned and operated a 103-acre property in …

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Environmental Due Diligence for Corporate Transactions: The Bona Fide Purchaser and the All Appropriate Inquiry Rule

A few months ago we posted our first blog on environmental due diligence, and as promised, we will continue to post on this important subject. This week we will focus on the popular, yet oft-mistaken, bona fide purchaser exception and the all appropriate inquiries rule (AAI rule) under CERCLA. In purchasing property, a buyer will conduct an assessment to determine whether a parcel (or property connected to an entity being acquired) has potential environmental contamination concerns and whether any issues may necessitate remedial action in …

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Superfund Alert: The Latest Proposed Changes to CERCLA

On February 12, 2018, President Trump’s Administration published its Infrastructure Plan (Plan) aimed at fixing America’s infrastructure. Within the Plan are several proposed changes to the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (also known as Superfund).

The first proposed change is to expand funding eligibility for revitalization projects under CERCLA. Currently, CERCLA Sections 101(39)(B) and 101(41)(C) only authorize grants or revolving loans for brownfields — properties that contain hazardous substances, pollutants, or contaminants that complicate expansion, redevelopment, or reuse. The Plan recommends …

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Bankruptcy Court Approves $43 Million Coal Cleanup Deal

On Tuesday, September 5, 2017, a bankruptcy court in Missouri approved a $43 million settlement between the reorganized Peabody Energy Corp., which is a coal producer, and the federal government. The settlement related to CERCLA liability incurred by one of Peabody’s affiliate companies, Gold Fields Mining LLC. Peabody acquired responsibility for Gold Fields’ pollution liability when it gained control of the company in the 1990s.

 The federal government had filed proofs of claim in Peabody’s Chapter 11 bankruptcy proceeding on behalf of seven Native American …

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The EPA’s Action Plan to Restore a Cornerstone of its Mission

In May, E. Scott Pruitt, EPA Administrator, issued a memo about prioritizing the Superfund Program and establishing a commission to expedite the identification and revitalization of superfund sites. CERCLA created the Superfund Program in 1980, but efforts to revitalize superfund sites have lately been delayed by red tape, funding issues, bankruptcies, and court proceedings. In his memo directed to the deputy administrator, the inspector general, assistant administrators, and other high level personnel, Pruitt vowed that “the EPA’s Superfund land and water cleanup efforts will be …

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CERCLA Update – Watch Out for Inadequacies in Allegations; Pleading Requirements to Satisfy a “Disposal”

Late last year, in our Law360 article “Definition Of ‘Disposal’ Limits CERCLA’s Applicability,” we analyzed an Ohio District Court’s pleading requirements to state a claim for liability under CERCLA. The plaintiffs’ initial complaint in that case had been dismissed because it failed to sufficiently allege “active human conduct” causing hazardous substances to be “discharged, deposited, injected, dumped, spilled, leaked or placed into or on any land or water at the Site so that it could enter the environment.” We left off with the …

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