Environmental Litigation

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By Andrew H. Perellis and Ilana R. Morady

Suppose you enter into a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Administrative Order to perform remediation where your release of liability is conditioned on successful performance of the remedy to the U.S. Environmental Protection Agency’s satisfaction. You want to recover some of your response costs so you sue other potentially…
Continue Reading 7th Circuit Issues Important Superseding Opinion Clarifying When CERCLA Provisions Establishing Contribution as Exclusive Remedy Have Been Triggered

By Andrew H. Perellis and Jeryl L. Olson

How much change can occur without a permit is a contentious and difficult question.

A Clean Air Act major source undergoing construction or modification needs to obtain a construction permit under 42 U.S.C. §7475(a) that would then obligate it to install best available control technology (BACT). However, mere repairs to an existing…
Continue Reading USA v. Midwest Generation — Seventh Circuit Finds Enforcement Action Time-Barred Because the Failure to Obtain a PSD Construction Permit is Not a Continuing Violation of the Clean Air Act

By Andrew H. Perellis, Philip L. Comella, and Craig B. Simonsen

In U.S. v. D.S.C. of Newark Enterprises Inc., No. 09-2270, (D.N.J. 6/12/13), the Court found that the sale of an ongoing business with hazardous materials remaining on site, which is later released by the purchaser, does not make the seller liable for having arranged for disposal.

The…
Continue Reading District Court Holds that Sale of Ongoing Business With Hazardous Materials Does Not Make Seller the Disposer

By Andrew H. Perellis and Craig B. Simonsen

In City of Arlington v. Federal Communications Commission, __ U.S. ___, No. 11-1545 (May 20, 2013), the Supreme Court re-affirmed the Chevron standard for deferring to an agency interpretation of an ambiguous statute even where the agency interpretation pertains to whether the agency possesses authority to act in the first instance. …

Continue Reading Supreme Court Holds that Courts Must Defer to an Agency’s Interpretation of its Own Statutory Authority

By Andrew H. Perellis, Philip L. Comella, and Craig B. Simonsen

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The Court found that the only issue for resolution was whether there was any evidence that the defendant, an “innocent purchaser,” was liable for the alleged re-contamination of a former Superfund site.

U.S. District Judge Ron Clark recently adopted Magistrate Judge Keith F. Giblin’s Report and Recommendations and…
Continue Reading Innocent Purchaser Defense Wins Summary Judgment in Texas District Court

By Andrew H. Perellis

It’s an all too familiar scenario. You learn that your drinking water supply has been contaminated by a defunct manufacturing operation on adjacent property.

In response, you file a lawsuit involving RCRA’s citizen suit provisions to allege that the former owner or operator violated RCRA’s substantive requirements by disposing of hazardous waste without a permit. 42…

Continue Reading When Can a Former Owner or Operator be Sued for Past Substantive RCRA Violations?

By Andrew H. Perellis

Can a toxic tort class action be maintained where class certification was denied in a materially similar case?

As noted in an item posted by our partners in The Workplace Class Blog, in Baker v Home Depot USA, Inc., No 11-CV-06768 (N.D. Illinois, Jan. 24, 2013), the court granted a motion striking the class…

Continue Reading Under Principle of Comity, Plaintiff Lacks Class When Other Courts have Denied Class Certification in Similar Cases

By Andrew H. Perellis and Ilana Morady

If you sell products that you no longer need that contain residual hazardous substances, and the buyer mishandles them so as to create the need for remediation, are you liable under CERCLA for having arranged for disposal of the hazardous substance?

A federal District Court recently granted summary judgment to a CERCLA defendant…

Continue Reading Seller of Drained Transformers Containing Residual PCBs Insulated From CERCLA “Arranger” Liability

By Andrew H. Perellis and Ilana Morady

If you incur response costs under CERCLA can you assert a claim under Section 107 of CERCLA, or are you limited to a contribution claim under Section 113?

By way of background, Section 107 and Section 113 provide distinct rights under CERCLA. Under Section 107, a potential responsible party (PRP) is strictly liable…

Continue Reading Seventh Circuit Joins the CERCLA Bandwagon! Only CERCLA Contribution Claim Available if PRP has Resolved Liability to the Government

By Philip L. Comella and Craig B. Simonsen

The Supreme Court held today in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc., No. 11-460 (January 8, 2013), that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a “discharge of…
Continue Reading NPDES Permit Not Required For Discharges to Different Parts of Same Waterway