Archives: CERCLA / RCRA

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EPA Publishes the Hazardous Waste Generator Improvements Rule

The Environmental Protection Agency recently published the Hazardous Waste Generator Improvements Rule (“HWGIR”), offering improvements to the Resource Conservation and Recovery Act’s (“RCRA”) Hazardous Waste Generator Regulatory program enacted in 1980. The new rule brings over 60 changes, which are intended to clarify existing requirements, increase flexibility and improve the rule’s usability by the regulating … Continue Reading

EPA Publishes Proposed Site Remediation NESHAP Rule Amendments

The EPA recently published proposed rule amendments that would subject site remediation activities performed under the Comprehensive Response and Compensation Liability Act (“CERCLA”) and Resource Conservation and Recovery Act (“RCRA”) to National Emission Standards for Hazardous Air Pollutants (“NESHAP”). The EPA is also proposing to remove the applicability requirement that a remediation site must be … Continue Reading

Taft Forms Brownfield and Site Development Team

Taft has formed a team focused on brownfield and site development of property that has the presence or potential presence of environmental contamination. The group is dedicated to assisting individuals, businesses, real estate developers, municipalities and others with the acquisition, disposition and redevelopment of real property for reuse, revitalization or restoration. The team represents many … Continue Reading

IDEM Issues New Nonrule Policy

On Nov. 13, the Indiana Department of Environmental Management (IDEM) issued Nonrule Policy Document No. MP-008-NPD to express its interpretation of the corrective action requirements under the federal Resource Conservation and Recovery Act (RCRA) and the parallel authority under Indiana law for subsequent owners of former hazardous waste treatment, storage or disposal facilities. Notably, this … Continue Reading

Fourth Circuit Holds That Seller of Used Transformers is Not Liable as “Arranger” Under CERCLA

The 4th Circuit Court of Appeals held that the seller of used transformers containing PCBs had no CERCLA “arranger” liability for PCB contamination caused by the buyer of the used transformers. Consolidated Coal Co. v. Georgia Power Co., 781 F.3d 129 (4th Cir. 2015). The Court held that the seller could not be liable as … Continue Reading

Attempt to “Slice and Dice” Cleanup Costs Between CERCLA Sections 107 and 113 Rejected by Federal District Court

The U.S. District Court for the Eastern District of Michigan rejected a party’s attempt to “slice and dice” its cleanup costs between Sections 107 and 113 of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) in Ford Motor Co., et al. v. Mich. Consolidated Gas Co., et al., Case No. 08-13503, E.D. Mich. (Feb. … Continue Reading

Court Applies Volumetric Apportionment under CERCLA in lieu of Joint and Several Liability

  In United States v. NCR Corp., a Wisconsin District Court held that recent 7th Circuit guidance in the wake of Burlington Northern & Santa Fe Railway, Co., v. United States, required a volumetric apportionment of NCR Corporation’s liability under CERCLA for its contribution to PCB contamination in the Lower Fox River.  This case may … Continue Reading

Cyprus Decision Opens Door for Indirect Successor Liability Under CERCLA

In Cyprus Amax Minerals Co. v. TCI Pacific Comm. Inc., the U.S. District Court for the Northern District of Oklahoma addressed a successor-in-interest issue in an environmental cleanup case where plaintiff Cyprus Amax Minerals Company (“Cyprus”) sought contribution payments from defendant TCI Pacific Communications, Inc. (“Pacific”). The court examined Cyprus’s claim that Pacific was the … Continue Reading

California Federal District Court Uses Burlington Northern Holding to Limit “Arranger” Liability

Recently, a federal district court in California used the opinion from Burlington Northern to limit liability under a California statute with a CERCLA-like liability scheme. See City of Merced Redevelopment Agency v. Exxon Mobil Corp., 2015 WL 471672 (E.D. Cal. Feb. 4, 2015). In 2009, the U.S. Supreme Court issued an opinion that fundamentally changed … Continue Reading

Public Nuisance Claims Displaced by CERCLA

In a case of first impression, the Eastern District of Washington recently ruled in Anderson, et al., v. Teck Metals, Ltd. CV-13-420-LRS that CERCLA displaced federal common law public nuisance claims for alleged damages from the release of hazardous substances in smelter emissions. This case is an important example of potential defenses that may be … Continue Reading

Brownfield Redevelopment Article Published in The Indiana Lawyer

I recently authored the article “RCRA threatens validity of brownfield redevelopment,” which was published in the Aug. 27-Sept. 9 issue of The Indiana Lawyer. The article discusses the developing trend in the area of brownfield development involving routine property transaction deals that have been scuttled by a questionable application of the Resource Conservation and Recovery … Continue Reading

Taft Environmental Partner Frank Deveau to Present on CERCLA BFPP Defense

Frank Deveau, co-chair of Taft’s Environmental practice group will be a panelist for a Strafford live CLE webinar titled “CERCLA BFPP Defense: Securing and Maintaining Liability Protection” on Sept. 23. He will provide guidance to counsel for parties involved in the purchase of a contaminated site to secure and maintain the BFPP defense. To learn … Continue Reading

Indiana Brownfields Updates Forms for Compliance with AAI

The Indiana Brownfields Program (“IBP”) has updated forms related to obtaining a Comfort Letter or Site Status Letter for brownfields sites in Indiana. IBP did so in order to emphasize that the trigger for the 180-day update (and the one-year shelf life for Phase I reports) runs from the earliest date upon which required information … Continue Reading

Court Clarifies Pleadings Requirements for CERCLA Section 112(c) Subrogration Claims

The Eastern District of California recently examined the sufficiency of an insurer’s complaint for subrogation against two potentially responsible parties (“PRPs”) for cleanup costs paid by the insurer. The PRPs argued that the insurer’s complaint failed to state a claim because it did not contain an allegation stating that its insured made a “formal” claim … Continue Reading

Frank Deveau and David Guevara Author ABA Book Titled The Bona Fide Prospective Purchaser Defense

Frank Deveau and David Guevara, have authored a new book titled The Bona Fide Prospective Purchaser Defense: A Guide for Lawyers. The book, published in June 2013 by ABA Book Publishing, was sponsored by the ABA’s Tort Trial and Insurance Practice Section. Frank and David also designed and edited Environmental Liability and Insurance Recovery, published … Continue Reading

EPA and Kentucky Sign Memorandum of Agreement for Voluntary Site Cleanup

As of December 19, 2012, the United States Environmental Protection Agency (EPA) will now defer to the Kentucky Department for Environmental Protection (KDEP) to determine whether certain property which has been remediated under KDEP’s Voluntary Remediation Program (VERP) may receive protection from future claims brought by the United States under the federal Comprehensive Environmental Response, … Continue Reading

Contractor Not Responsible For Sub’s RCRA Liability

Having represented environmental contractors accused of malpractice, I welcomed a recent federal court decision finding that an environmental contractor is not liable under RCRA simply because it hired a subcontractor that performed a wrongful act, even though the act resulted in the release of a hazardous waste into the environment. In National Exchange Bank and Trust … Continue Reading

RCRA Vapor Intrusion Liability for “Passive Inaction”

An environmental contamination case set for trial based on liability under the Resource Conservation and Recovery Act (“RCRA”) for “passive inaction and studied indifference” recently settled, but the court filings provide a valuable lesson to property owners to address contamination promptly and to document delays outside of their control (such as agency review and approval … Continue Reading

Will the Indemnification Clause in the Asset Purchase Agreement Protect Me?

Clients who buy or sell contaminated property always ask “will the indemnification clause in the asset purchase agreement protect me?”  Lawyers drafting such clauses often look to see how courts have interpreted similar provisions.  Recently, the U.S. Court of Appeals for the Sixth Circuit examined the retained liability and indemnification clauses in an asset purchase agreement … Continue Reading

Dry Cleaner Liable Under CERCLA and Headed to Trial on RCRA Claims

A federal district court recently entered summary judgment against a dry cleaner on a property owner’s CERCLA claim for past response costs and declaratory judgment claim regarding future response costs, and allowed the property owner’s RCRA claims to proceed to trial in Forest Park National Bank & Trust v. Ditchfield, 2012 WL 3028342, Case No. … Continue Reading

Wisconsin Federal Court Follows Ninth Circuit’s Support of CERCLA Useful Product Defense. Knowledge is Not Enough to Trigger Arranger Liability.

After a seven-day bench trial, the United States District Court for the Eastern District of Wisconsin upheld the CERCLA useful product defense.  Appleton Papers, Inc. and NCR Corporation v. George A. Whiting Paper Co., et al., Case No. 08-C-16 (E.D. Wis. July 6, 2012).  I previously wrote about the Ninth Circuit’s support of the useful … Continue Reading

CERCLA Apportionment Defense Dismissed

A federal district court recently dismissed a defendant’s apportionment defense, asserted pursuant to Burlington Northern and Santa Fe Railway Company v. United States (“BNSF”), 556 U.S. 599 (2009), because the defendant failed to address the entirety of the harm resulting from the contamination. In Pakootas v. Teck Cominco Metals, Ltd., 2012 WL 1133656 (E.D.Wash. Apr. … Continue Reading
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