As most of our readers know, the Resource Conservation and Recovery Act (RCRA)gives the EPA control over  the generation, transportation, treatment, storage, and disposal of hazardous waste, often described as “cradle-to-grave” coverage of hazardous wastes.  One of its provisions, 42 U.S.C. § 6972(a)(1)(B), allows any person to bring suit against another “who has contributed . . . to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Read More »

Share | Email| Comments|  Topics: Citizen Suit, Contamination, Cost Recovery, RCRA, Waste

In July, 2001, the New Jersey Superior Court decided the case of White Oak Funding, Inc. v. Winning, 341 N.J. Super. 294 (App.Div.), cert. denied. 170 N.J. 209 (2001), holding that an owner of contaminated property purchased before September 14, 1993, was not liable for historic contamination that the owner did not contribute to.  Only a week later, amendments to New Jersey’s Industrial Site Recovery Act (“ISRA”) became effective.  Among other things, those amendments provided that owners who acquired property prior to September 14, 1993 would not be liable for clean-up costs if “at the time of acquisition, [the purchaser undertook] all appropriate inquiry on the previous ownership and uses of the property based upon generally accepted good and customary standards.”  N.J.S.A. 58:10-23.11g(d)(5).  So, did this amendment abrogate the holding in White Oak?   A decade later, on October 29, 2012, the New Jersey Superior Court has said that it did. Read More »

Share | Email| Comments|  Topics: Cleanup, Condemnation, Contamination, Cost Recovery, Eminent Domain, ISRA, New Jersey, Real Estate, Spill Act, Takings

A few months ago, we reported on an interesting Seventh Circuit opinion on CERCLA §107 claims issued in the Fox River clean-up litigation in Wisconsin.  The Fox River clean-up, and the ensuing private party litigation, represents one of a number cases that have arisen from EPA’s efforts to remediate water bodies throughout the country that have been declared to be Superfund sites—including the Lower Passaic River and Newark Bay in northern New Jersey, the Hudson River in upstate New York, and the Gowanus Canal in Brooklyn.  Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, CERCLA, Cleanup, Contamination, Cost Recovery, Decisions of Note, Remediation, Superfund

New Jersey’s Spill Act is similar to, but older than, CERCLA and like CERCLA, many of its contours have yet to be defined.  The New Jersey Supreme Court’s unanimous decision in NJDEP v. Dimant (No. 067993 Sept. 26, 2012), attempts to rectify that in two important areas. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, Cost Recovery, Decisions of Note, New Jersey, Remediation, Removal, Spill Act

Often, the most important concern for a landowner facing a cost recovery action is not liability, but rather insurance coverage.  And then, the question may not be “is it covered” but “how much am I covered for?”  On August 9, 2012, the California Supreme Court issued its opinon in California v. Continental Insurance Co.. No. S170560 (Ca. Aug. 9, 2012), providing some comfort to parties locked in expensive clean-up battles. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Class Actions, Cost Recovery, Decisions of Note, Insurance Coverage, Remediation, Superfund

The Fox River clean-up – or rather, litigation concerning the clean-up – has resulted in some meaty written opinions for CERCLA lawyers to chew over, particularly on the issue of apportionment in a post BNSF world.  Friday’s decision by the Seventh Circuit Court of Appeals in United States v. NCR Corp., No. 10-C-910 (7^th Cir. Aug. 3, 2012) is no exception, with the Court not only tackling divisibility, but also hinting that NCR might have 107(a) claim against other PRPs, an issue that the United States Supreme Court left unresolved in the Atlantic Research decision. Read More »

Share | Email| Comments|  Topics: Cases to Watch, CERCLA, Cleanup, Cost Recovery, Decisions of Note, Remediation, Superfund

Although CERCLA has been around for many years, courts are still interpreting both its parts and its whole.  In recent years, the Supreme Court has tried to direct traffic between Section 107(a), which permits PRPs to bring cost recovery actions against other PRPs for “any necessary costs of response incurred” by the PRP bringing suit, and Section 113(f), which permits PRPs who have been sued under section 106 or 107(a) or have entered into a judicially-approved settlement with a federal or state government resolving CERCLA liability to bring actions for contribution against other PRPs to recover amounts paid in excess of their equitable share of liability.   Because these two provisions have differing limitations periods, burdens of proof, and allow for different forms of recovery against multiple defendants, the distinction is often significant. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Eleventh Circuit, Enforcement Action, Statute of Limitations, Superfund, Waste

For the Association of Corporate Counsel, Nicole recently wrote about the decision in Menasha Corp. v. United States Department of Justice, No. 11-C-682 (E.D. Wis. 2012) which should give counsel some pause before communicating with employees of a client’s affiliated entities, particularly in multi-party environmental cost-recovery cases.  Her article can be found here.

Share | Email| Comments|  Topics: Cost Recovery, Decisions of Note, Superfund

A little creativity goes a long way and cash-strapped municipal entities need all the creativity they can get. But it doesn’t always put money in your pocket. And such was the result in Emergency Services Billing Corporation, Inc. v. Allstate Insurance Co., No. 11-2381 (7^th Cir. Feb. 2, 2011) which upheld a trial court’s determination that automobiles owned and used for personal purposes are not “facilities” under CERCLA and hence drivers (and their insurance carriers) are not liable for “response costs” incurred in responding to motor vehicle accidents. And thus the Volunteer Fire Department of Westville, Indiana, cannot recoup the amounts it spent in responding to the four separate, unrelated auto accidents that were the subject of the collection efforts. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Indiana, Seventh Circuit

Yes, it sounds like something your 12 year old daughter would call her friend, but here we’re talking about the Bona Fide Prospective Purchaser defense to CERCLA joint and several liability.  MGKF Partner Jonathan Spergel recently wrote about this defense for the Association of Corporate Counsel.  You can find his article, along with others written by MGKF attorneys, at ACC’s Green House Counsel webpage.

Share | Email| Comments|  Topics: Bona Fide Prospective Purchaser, CERCLA, Cleanup, Cost Recovery, Green House Counsel, Real Estate, Superfund