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.

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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 »

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In a decision that should pique the interests of environmental consultants across the country, the U.S. District Court for the Eastern District of Missouri issued an opinion last month in BancorpSouth Bank v. Environmental Operations, Inc., Case No. 4:11CV9 HEA (E.D. Mo. Oct. 11, 2011),allowing a CERCLA claim to survive against several engineering firms hired to handle the remediation of an old landfill slated for a Brownfields redevelopment project.  The complaint alleged that the defendants failed to properly design and construct an engineered cell on the site (which didn’t account for the potential for methane gas to escape the cell), and further failed to adequately screen hazardous materials from the dirt on the site prior to spreading it around as fill material.  These activities, according to the plaintiff, not only constituted malpractice, but also turned the engineering firms into “operators” and/or “arrangers” under CERCLA, subjecting them to strict, joint and several liability for alleged damages in excess of $10 million. Read More »

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The Supreme Court has had a lot to say in recent years about how the lower courts should be interpreting CERCLA, but the trend appears to have ended, at least for now.  On October 3, the Court declined to review the Eighth Circuit’s decision inMorrison Enterprises, LLC v. Dravo Corp., which held that the contribution provision of § 113(f) of CERCLA provides the exclusive remedy for a PRP that incurs response costs pursuant to an administrative or judicially approved settlement under §§ 106 or 107, such as a consent decree or administrative order on consent (AOC). Read More »

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