CERCLA

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Many attorneys on the business and legal sides of transactions involving the transfer of real property have developed working knowledge of the primary purposes of performing Phase I environmental due diligence: (1) gain information on the environmental conditions of a property; (2) establish defenses to CERCLA liability; (3) secure lending; and (4) secure insurance.

Many attorneys are also generally familiar…
Continue Reading Environmental Due Diligence: Basics For Real Estate Attorneys — Part I: What is a REC, Anyway?

By Jeryl L. Olson

In follow-up to our August 16, 2013, blog regarding the EPA’s Direct Final Rule installing the new ASTM E1527-13 as an alternative, updated process for conducting Phase I environmental due diligence, it should be noted the Agency has indicated (in an email to BNA reporter Pat Ware) that it will WITHDRAW that rule.  78 Fed. Reg.
Continue Reading EPA Withdraws Its Approval of Updated ASTM Standard for Environmental Due Diligence

NOTE: This blog has been updated with a more recent blog.

By Jeryl L. Olson

The U.S. EPA has published its approval of the updated ASTM Standard that is the basis for the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) affirmative defenses.  Amendment to Standards and Practices for All Appropriate Inquiries, 78 Fed. Reg.  49690 (August 15, 2013). …
Continue Reading EPA (Finally) Updates ASTM Standard for Environmental Due Diligence

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, 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 William R. Schubert

A recent Government Accountability Office report (GAO-13-252) called on EPA to improve its management of alternatives to National Priorities List placement.

The report found that at most sites that EPA deems eligible for NPL placement, EPA uses an alternative approach so that the site can be remediated without being placed on the…
Continue Reading GAO Report Criticizes Inconsistency Among EPA Regions For Alternate Cleanups Managed Outside of Superfund

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 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 Andrew H. Perellis, Jeryl L. Olson, and Eric E. Boyd

To promote brownfield development, in 2002, the Congress provided the Bona Fide Prospective Purchaser defense under the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), Section 101(40)(A)-(H). In a nutshell, that provision provides that a person (or a tenant of a person) that acquires contaminated property…

Continue Reading Can a Tenant Occupy Contaminated Property and be Protected from Superfund Liability?