Category Archives: CERCLA

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EPA Takes Back Decision-Making Authority for the Most Costly Superfund Cleanups

In a break with long-standing policy, Environmental Protection Agency (EPA) Administrator Scott Pruitt has taken back authority to approve remedies costing $50 million or more at Superfund sites effective immediately. According to the delegation of authority memo issued on May 9, 2017, the purpose of these revisions is to promote accountability and consistency in the … Continue Reading

Lessons Learned: Negotiating Covenants Not to Sue in Environmental Agreements

Parties that settle environmental claims with the government frequently include covenants not to sue in their settlement agreements. But how does a party ensure that a covenant not to sue prevents the government from suing it again? By negotiating a broad covenant not to sue that contemplates all the ways in which the government may … Continue Reading

Insurers’ Duty to Defend May Be Triggered at Early Stages of CERCLA Enforcement Process

On May 11, 2016, the 9th Circuit held that EPA information requests under CERCLA § 104(e) may trigger general liability insurers’ defense obligations.[1] This case marks the second time that the Ninth Circuit has held that § 104(e) letters — which often merely request information and do not designate an entity as a Potentially Liable Party (PRP) — … Continue Reading

Trio of Recent Cases Help Refine CERCLA Remedial Statute of Limitations

Three recent district court cases have refined the contours for timely bringing a remedial action under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).  In all three opinions, the courts rejected arguments that preliminary or investigative activities to determine the magnitude of contamination at Superfund sites necessarily triggers the six-year statute of limitations for … Continue Reading

Proposed Largest Natural Resource Damages Settlement in U.S. History

On October 5, 2015, the United States, BP Exploration and Production Inc. (BP), Alabama, Florida, Louisiana, Mississippi and Texas lodged a Consent Decree with the District Court for the Eastern District of Louisiana to resolve claims for federal civil penalties and natural resource damages (NRDs) related to the Deepwater Horizon drilling unit / Macando Well … Continue Reading

CERCLA Divisibility Defense Is Alive and Well

On May 15, 2015, the United States District Court for the Eastern District of Wisconsin held that a defendant successfully established a divisibility defense in a government enforcement action dealing with the cleanup of the Fox River Superfund Site in northeastern Wisconsin (the Site).  United States v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, … Continue Reading

Ninth Circuit Holds District Courts Have Discretion in Accounting For CERCLA Private Party Settlement When Allocating to Non-Settling Parties

On April 2, 2015, the Ninth Circuit held that a district court has the discretion to determine the most equitable method of accounting for settlement between private parties when it allocates liability to a non-settling defendant in a CERCLA contribution action.  AmeriPride Serv. v. Texas Eastern Overseas, Case no. 12-17245 (9th Cir. Apr. 2, 2015).  … Continue Reading

Monitoring and Testing (and Taxing): New York Appellate Court Imposes Sales Tax on Environmental Remediation Work

Keeping with a growing trend, a New York appellate court in Exxon Mobil Corp. v. State of New York Tax Appeals recently upheld a ruling applying a sales and use tax assessment to environmental remediation work. New York law has a provision imposing a sales tax on services related to “[m]aintaining, servicing or repairing real … Continue Reading

CERCLA Displaces Common Law Nuisance Claims

For the first time, a court has held determined that CERCLA, by itself, is sufficient to displace a federal common law nuisance claim for damages. In a January 5, 2015, decision, the United States District Court for the Eastern District of Washington dismissed federal common law public nuisance claims brought by a group of residents … Continue Reading

Eastern District of Washington Holds that Contamination Caused by Direct Aerial Emissions May be Actionable Under CERCLA

In Pakootas v. Teck Cominco Metals, LTD, Plaintiffs filed suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a Canadian mining company for disposing of slag and hazardous substances into the Upper Columbia River (UCR) and Lake Roosevelt, both in the U.S., where Plaintiffs fish, hunt and recreate. Pakootas v. Teck Cominco … 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

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