Category: CERCLA

Taft Stettinius & Hollister LLP
Vivek R. Hadley

July 9, 2019

Benjamin Franklin famously said that nothing in this world is certain, except death and taxes. A recent decision from the Southern District of Ohio ruled that in some circumstances, not even death can save a party from CERCLA liability.

In Garrett Day, LLC v. International Paper Co., No. 3:15-CV-36, 2019 WL 1331680 (S.D. Ohio Mar. 25, 2019), several parties fought over who should pay for the expensive cleanup of a former paper mill that operated for 100 years in Dayton, Ohio. The Site contained several hazardous substances like asbestos, trichloroethylene, polycyclic aromatic hydrocarbons and polychlorinated biphenyls. The current owner of the Site brought a CERCLA claim and a similar state law claim against former owners and operators who may have contributed to the contamination.

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Crowell & Moring LLP
Elliott P. Laws, Peter Gray, Kirsten L. Nathanson and Elizabeth B. Dawson

June 13, 2019

On June 10, in a case that could have a significant impact on CERCLA cleanup efforts across the country, the U.S. Supreme Court granted certiorari in Atlantic Richfield Company v. Christian, a Montana Supreme Court case involving state law claims related to environmental contamination at a Superfund site. By agreeing to hear the case, the Court appears set to resolve the conflict between the Montana Supreme Court and various federal circuits over whether CERCLA preempts or bars private landowners from bringing common law claims for environmental remediation of sites undergoing cleanup under CERCLA. Specifically, the Court will consider:

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Seyfarth Shaw LLP
Rebecca A. Davis, Jeryl L. Olson and Craig B. Simonsen

March 6, 2019

Seyfarth Synopsis: Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has fully or partially deleted 22 sites from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL). This is the largest number of deletions in one year since 2005.

However, the EPA continues to add sites to the NPL, and added five new sites in the Fall of 2018. Two sites are particularly noteworthy as they were added solely due to a subsurface intrusion pathway. Subsurface intrusion is the migration of hazardous substances or pollutants and contaminants from the unsaturated groundwater zone and/or the surficial groundwater into overlying structures. Vapor intrusion is the most common form of subsurface intrusion, but the intrusion also may be in the form of gas or liquid.

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Winston & Strawn LLP
Maura T. Levine-Patton and John Fehrenbach

January 10, 2019

In March 2018, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) was amended by the Brownfield Utilization, Investment, and Local Development Act of 2018 (“BUILD Act”). The Environmental Protection Agency (EPA) solicited comments on the BUILD Act through July 10, 2018 and recently incorporated the Act’s changes in its FY 2019 brownfields grants guidelines. The BUILD Act makes two major changes to CERCLA: it increases funding for brownfield redevelopment grants, and formally extends the bona fide prospective purchaser (BFPP) statutory defense to tenants of contaminated sites, which previously had been a policy of EPA. Applications for grants to address sites contaminated by hazardous substances, pollutants, or contaminants under the new BUILD Act guidelines are due to EPA by January 31, 2019.

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Riker Danzig Scherer Hyland & Perretti LLP
Alexa Richman-La Londe

January 7, 2019

Reprinted with permission. © 2019 Riker Danzig Scherer Hyland & Perretti LLP

The United States Court of Appeals for the Third Circuit recently handed down two noteworthy decisions on environmental liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). One involves the appropriate methodology for allocation of cleanup costs between two responsible parties based on equitable factors; the other involves whether a new owner of contaminated property is responsible for governmental response costs incurred prior to its purchase of the relevant property. Both set new precedent that should be of interest to the regulated community.

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Manko Gold Katcher & Fox
Shelby Hancock

October 10, 2018

Last week the Third Circuit held that the owner of a remediated site could be liable under CERCLA § 107(a) for environmental response costs incurred before it acquired the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem., LLC., __ F.3d __, No. 17-2607, 2018 WL 4844077 (3d Cir. 2018). In its opinion reversing the district court’s grant of partial summary judgment in advance of trial, the court concluded that “all costs” in § 107(a)(4)(A) means an owner is “indeed liable for all response costs, whether incurred before or after acquiring the property.” Id. at *5. Our blog post discussing the district court’s decision, 204 F. Supp. 3d 814 (E.D. Pa. 2016), can be found here.

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Jones Day
Jane Borthwick Story and Mary Beth Deemer

September 12, 2018

In Short

The Situation: At least one court since Bestfoods has held that an organizational model whereby a parent company provides shared or centralized services to subsidiaries can result in direct liability for the parent company under CERCLA.

The Result: Parent companies may face direct liability under CERCLA depending on the structure of their shared services models.

Looking Ahead: Companies may want to consider how the structure of their shared services practices may impact their potential CERCLA liability.

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