Early this month, the Second Circuit heard oral argument in Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States EPA, No. 14-1823, an appeal from the Southern District of New York’s March 2014 ruling which invalidated the “water transfer” exemption rule from National Pollutant Discharge Elimination System (“NPDES”) permitting requirements.  A decision from the Second Circuit, which will have far reaching effects on public and private entities alike, is expected in 2016. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Clean Water Act, EPA, New York, NPDES, Permits, Second Circuit, Water

Determining the appropriate Statute of Limitations for claims brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. (“CERCLA”), is often a tricky matter.  Usually, the issue arises in the context of determining whether a claim is properly brought under Section 107(a), 42 U.S.C. § 9607(a), for costs voluntarily incurred, or § 113(f), 42 U.S.C. § 9613(f), for costs incurred pursuant to a court order or approved settlement, as Section 107(a) claims may be subject to a six-year statute of limitations, while claims under Section 113(f) have a three-year limitations period.  However, in State of New York v. Next Millenium Realty, LLC, No. 12-2894-cv (2^nd Cir. Oct. 15, 2013), the Second Circuit turned its attention to a different distinction, the one between removal actions and remedial actions, as Section 107(a) claims “must be commenced … for a removal action, within 3 years after completion of the removal action [and] for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action. . . .”  42 U.S.C. Section 9613(g)(2)(B).  In order to find the claims of the State of New York timely, the Court held that a water purification system in use for over 15 years was nevertheless a removal action and not a remedial action because, among other things, the measures were intended to “minimize and mitigate” damage from contamination and not to “permanently eliminate” it.  Id. at 24. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Cost Recovery, New Jersey, Procedure, Remediation, Removal, Second Circuit, Statute of Limitations, Superfund

On Monday, the Second Circuit issued two opinions in the consolidated case of State of New York v. Solvent Chemical Co., Nos. 10-2026-cv, 10-2166-cv, & 10-23830-cv (2^nd Cir. Dec. 19, 2011).  The first was a Summary Opinion, without precedential effect, which partially affirmed and partially rejected the district court’s method of allocating liability for past response costs incurred by Solvent Chemical Co. in remediating contamination at a site along the Niagara River in New York.  The second, a precedential opinion, reversed the trial court’s decision denying Solvent a declaratory judgment holding two other PRPs, DuPont and Olin Corp., liable for future remediation costs.  In essence, the Court of Appeals held that if the trial court could determine that DuPont and Olin were partially liable for past remediation costs, then it was required to find them liable for future costs, even if the trial court was not then able to allocate those future costs.  From a purely logical standpoint, not a very controversial or earth-shattering decision. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, Declaratory Relief, Second Circuit, Superfund