On June 9, 2014, the Supreme Court decided CTS Corp. v. Waldburger, holding that a North Carolina statute of repose was not preempted by Section 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Continue Reading Supreme Court Decides CTS Corp. v. Waldburger Evaluating Whether CERCLA Precludes State-Law Statutes of Repose

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 action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action.  42 U.S.C. § 9613(h)(4).  Generally, courts applying this provision have found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.
Continue Reading Judicial Review of a Superfund Clean-up Can Proceed in Stages

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 “resolved its liability to the United States or a State” in an “administrative or judicially approved settlement” to bring a contribution claim.  A contribution claim must be brought within three years, but circuits have split on how to interpret when the statutory time period begins to run.  On Monday, Jan. 27, the Supreme Court denied certiorari in a case that would likely have addressed this split.  Bernstein v. Bankert, 702 F.3d 964, 981 (7th Cir. 2012), aff’d Nos. 11-1501, 11-1523, 2013 WL 3927712, *1 (7th Cir. July 31, 2013), cert. denied, No. 13-568, 2014 WL 273271 (Jan. 27, 2014).
Continue Reading Supreme Court Declines to Review Seventh Circuit Decision on CERCLA Statute of Limitations Issues

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 reports submitted after that date.
Continue Reading New EPCRA Tier I and II Inventory Reporting Requirements Effective January 1, 2014

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. 12-2894 (2d Cir. Oct. 15, 2013). Because the trigger for starting the statute of limitations period is different for a “removal” and a “remedial” action, the determination of whether an activity constitutes one or the other can be dispositive on whether an action is time-barred. In this opinion, the Second Circuit took an expansive reading of a “removal” action and essentially limited a “remedial action” to only those activities that are taken after a Record of Decision, and that address the permanent removal of contaminants.
Continue Reading Second Circuit Issues Opinion Addressing “Remedial” vs “Removal” Actions Under CERCLA

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 — the court addresses whether each individual PRP fits within the statutory definition of a liable party under CERCLA.  During the second phase — the “allocation” phase — the court allocates the cost of environmental remediation among all of the parties that were found to be liable during the first phase.  CERCLA decisions before the appellate courts tend to focus on liability issues in part because parties often settle after the liability phase.  As a result, appellate decisions offering guidance on allocation are rare, but important to CERCLA practitioners.
Continue Reading Fourth Circuit Decides Key CERCLA Allocation and Liability Case

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 of cleaning-up the release, or threatened release, of hazardous substances. 42 U.S.C.A. § 9607(a). Consequently, after CERCLA was passed, a property owner or operator could be held liable for contamination, even if the contamination occurred before the owner purchased the property or the operator began operations at the site. Thus, it became difficult to sell contaminated property for redevelopment because of the fear of liability. To encourage the redevelopment of these sites, Congress passed the Small Business Relief and Brownfield Revitalization Act (“The Brownfield Amendments”) in 2002. Pub. L. 107-118. The Brownfield Amendments contain several exemptions from liability intended to allay the fears of potential buyers. One of these exemptions is the “Bona Fide Prospective Purchaser” (“BFPP”) exemption which allows qualified buyers, and the tenant(s) of a qualified buyer, protection from CERCLA liability. 42 U.S.C.A. §§ 9601(40); 9607(r)(1).
Continue Reading Revised USEPA Guidance on Bona Fide Prospective Purchaser Protection for Tenants