May 26, 2015

Liability Allocation Under CERCLA Within Court’s Discretion

A Federal Appeals Court in the Ninth Circuit has unanimously ruled on April 2, that Federal Trial Courts are not required to employ a specific formula when allocating costs between private parties for clean-up expenses incurred under CERCLA. The Court stated that District Courts have discretion in determining the most equitable method of accounting for settlements between private parties in a contribution action, and stated that this approach is consistent with both federal common law and the intent of CERCLA. Under the Ruling, District Courts can apply equitable factors in deciding whether to subtract from a Plaintiff’s potential recovery the… Read more

Mar 23, 2015

Federal Court Rules That CERCLA Prevents Federal Nuisance Claims for Hazardous Materials Contamination

Following the reasoning of the Supreme Court in Connecticut v. American Electric Power Co., Inc. (AEP), 546 U.S. ___ (No. 10-174, S. Ct. 2011), the U.S. District Court for the Eastern District of Washington ruled in January that federal common law nuisance claims filed by Washington residents living downstream and downwind of a Canadian metal smelter and fertilizer manufacturing facility must be dismissed, because CERCLA displaces the federal common law of nuisance. Barbara Anderson, et al. v. Teck Metals, 2015 BL 1624 (E.D. Wash. No. 13-CV-420, 1/5/15). Former and current residents of Northport, Washington filed a class action alleging that air… Read more

Oct 24, 2014

EPA No Longer Recognizes 2005 Standard for All Appropriate Inquiries

The Environmental Protection Agency has updated its requirements for environmental assessments at brownfields and other sites. In a final rule published on October 6, 2014, the EPA removed reference to the 2005 ASTM International industry standard (E1527-05) from the “all appropriate inquiries standard” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Starting on October 16, 2015, parties must use the 2013 version of the standard (E1527-13) or the EPA’s AAI rule to conduct Phase I environmental assessments and qualify for one of the liability defenses under CERCLA. The final rule will affect both private and public parties who… Read more

Jun 27, 2014

EPA Proposes Rule to Remove Reference from Outdated Due Diligence Standard

On June 17, the EPA proposed a rule that would remove references to the outdated 2005 industry standard for assessing Brownfields and other sites for potential environmental issues. The proposed rule would amend the EPA’s All Appropriate Inquiry (“AAI”) rule under the Comprehensive Environmental Response, Compensation and Liability Act. (“CERCLA”). Conducting an investigation that meets the AAI standard is one of the necessary steps to achieving the Innocent Landowner Defense under CERCLA. Under the existing rule, parties can establish the Innocent Landowner Defense by using either the 2005 or the recently published, and more stringent, 2013 standard.  The new rule… Read more

Jan 27, 2014

House Approves Legislation Granting to States Greater Role in Site Cleanups

The House has approved a bill to modify the Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation and Liability Act which, if enacted, grants to states a greater role in the management and oversight of site cleanups. Specifically, the bill would eliminate a requirement that the EPA review states’ waste regulations every three years, grant to states a greater role in site cleanups, and force federal facilities to follow state and local laws during site cleanups under the Superfund Statute.  The bill sponsor, Representative Bill Johnson (R-Ohio), claims the measure “reduces unnecessary red tape” and aims “to… Read more

Jun 7, 2013

Contribution Action Preempts Unjust Enrichment Claim under Missouri Common Law

A federal district court in Missouri has ruled that a common law claim for unjust enrichments cannot proceed simultaneously with a superfund contribution claim under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  In so ruling, the Eighth Circuit has joined the Second and Third Circuits in finding such claims preempted.  The court reasoned that state law claims that sought to circumvent the statutory recovery system established by CERCLA could not proceed simultaneously with an inconsistent scheme established state common law. If you have questions regarding this post, please contact Phillip Hoover.

May 6, 2013

Federal Court of Appeals Addresses Superfund Liability of Brownfield Developers

In a case of first impression regarding brownfield developer liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), the Fourth Circuit Court of Appeals on April 4 decided the issue of whether a current owner of a hazardous waste site can escape liability as a Bona Fide Prospective Purchaser (BFPP) under Brownfield redevelopment legislation enacted by Congress in 2002.  Specifically, the opinion in PCS Nitrogen Inc. v. Ashley II of Charleston LLC LP, Nos. 11-1662, 11-2087, 11-2099, 11-2104 and 11-2297 (4th Cir. April 4, 2013), interpreted the requirement that, in order to escape liability as a… Read more

Feb 4, 2013

New EPA Guidance Broadens Tenant Protections at Brownfield Sites

In response to concerns that liability protection for tenants was not clear enough to encourage development of renewable energy on brownfield sites, EPA issued a guidance document on December 5 in order to broaden protections of tenants who meet certain criteria, even if the site owner does not qualify for protection as a Bona Fide Prospective Purchaser (“BFPP”).  Signed by EPA’s enforcement head Cynthia Giles and waste chief Mathy Stanislaus, the new protections are outlined in a memorandum entitled “Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision.” Under 2002 brownfield amendments to CERCLA, Section… Read more

Nov 4, 2010

Courts Continue to Narrow Superfund Liability

In 2009, the U.S. Supreme Court issued a decision in the consolidated cases of Shell Oil v. U.S. and Burlington Northern and Santa Fe Railway Co. v. U.S. (“Shell Oil“) that narrowed the scope of “arranger” liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).  That decision reversed a lower court decision that had found Shell Oil Company liable for “arranging for disposal” of a hazardous substance because it shipped hazardous substances under conditions that it knew would result in a portion of the substances being spilled by the purchaser or the common carrier.    Last month, the 5th… Read more