Tag Archives: CERCLA

Are We Facing the Decline of Chevron Deference and an Article III Renaissance?

In February, presidential advisor Steve Bannon stated that a primary goal of the Trump administration was the “deconstruction of the administrative state.” One feature of the administrative state is “administrative deference,” which involves courts deferring to federal agencies’ interpretations of federal statutes – a topic that we have discussed repeatedly in the past few months, … Continue Reading

EPA Must Examine Effects of Clean Air Act Regulations on Jobs

Under a recent summary judgment decision from a federal district judge, the EPA must continuously examine the effects that certain Clean Air Act (CAA) regulations have on employment in the coal industry specifically and other industries more broadly. This means the EPA will be subject to increased requirements before taking action under the CAA. The ruling … Continue Reading

Litigating a CERCLA Allocation Case – Pre-Trial Strategies and Trial Techniques CLE Regional Workshop

May 13, 2015 1:00 – 6:00 p.m. CT Schiff Hardin partner Gabriel Rodriguez will welcome attendants to the ABA Section of Litigation Regional Workshop entitled “Litigating a CERCLA Allocation Case – Pre-Trial Strategies and Trial Techniques.” The workshop panelists will include a Judge from the United States District Court for the Northern District of Illinois, … Continue Reading

Supreme Court Denies Petition Challenging Staged Review of Completed CERCLA Remediation

The Supreme Court recently denied certiorari of a Seventh Circuit opinion permitting parties to challenge “completed” phases of a staged remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), even where work in subsequent stages remains ongoing.  The decision in Frey v. Envtl. Prot. Agency, No. 13-2142 (7th Cir. May 1, 2014) addressed … Continue Reading

Seventh Circuit Finds Environmental Harm ‘Theoretically Capable’ of Apportionment

On September 25, 2014, the Seventh Circuit issued two opinions in litigation related to the Fox River Superfund site in Wisconsin.  The Fox River is a sediment site contaminated primarily with polychlorinated biphenyls (PCBs) from the paper making industry.  In one of these decisions, the Seventh Circuit held that, based on evidence at trial, the … Continue Reading

USEPA to Phase Out Use of Older Standard Practice for Site Assessments

A Phase I Site Assessment is used primarily to investigate commercial real estate for environmental conditions.  The American Society for Testing and Materials (ASTM) International provides a Standard Practice for environmental professionals undertaking a Phase I Site Assessment.  Last fall, ASTM International published a revised version of the Standard Practice for Environmental Site Assessments: Phase … Continue Reading

Judicial Review of a Superfund Clean-up Can Proceed in Stages

A recent Seventh Circuit decision addressed the contours of the general statement that USEPA’s decisions in an “on-going” remediation may not be challenged under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial … Continue Reading

Supreme Court Declines to Review Seventh Circuit Decision on CERCLA Statute of Limitations Issues

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides two ways of recovering costs spent on cleaning up a contaminated site from other potentially responsible parties (PRPs).  One way to recover these costs is through a contribution claim under Section 9613(f) of CERCLA.  42 U.S.C. § 9613(f).  Section 9613(f)(3)(B) allows a party that has … Continue Reading

New EPCRA Tier I and II Inventory Reporting Requirements Effective January 1, 2014

On July 13, 2012, the United States Environmental Protection Agency promulgated a rule requiring new and revised data elements for Emergency Planning and Community Right-to-Know Act (EPCRA) Tier I and Tier II inventory reports.  The changes required by this rule become effective on Jan. 1, 2014, and apply to Tier I and Tier II inventory … Continue Reading

Second Circuit Issues Opinion Addressing “Remedial” vs “Removal” Actions Under CERCLA

As a statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hinges on a variety of definitions which courts have applied inconsistently to cases since CERCLA passed. On October 15, 2013, the Second Circuit issued an important opinion that contrasted “removal” versus “remedial” activities under CERCLA.  New York v. Next Millennium Realty, LLC, No. … Continue Reading

Fourth Circuit Decides Key CERCLA Allocation and Liability Case

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is a federal statute that, among other things, allows parties to allocate environmental remediation costs among parties whose operations may have resulted in environmental contamination.  CERCLA cases with multiple potentially responsible parties (PRPs) generally proceed in two phases.  During the first phase — the “liability” phase — … Continue Reading

Revised USEPA Guidance on Bona Fide Prospective Purchaser Protection for Tenants

The United States Environmental Protection Agency (“USEPA”) recently issued an important guidance document applying the Bona Fide Prospective Purchaser exemption to tenants who operate at contaminated sites on a case-by-case basis, thereby protecting tenants from potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). CERCLA holds owners and operators liable for costs … Continue Reading