Tag Archives: CERCLA

Squire Patton Boggs Helps Secure a Victory for the State of Colorado at the US Supreme Court

On June 26, the US Supreme Court denied New Mexico’s petition seeking to institute an original action against Colorado for the 2015 Gold King Mine spill. An original action in the US Supreme Court is a lawsuit between states. Invoking that rarely used procedure, New Mexico sought to hold Colorado liable for the Gold King Mine spill.  … Continue Reading

US EPA Proposes Rules Governing Financial Responsibility for Hard Rock Mines & Processing Facilities

On December 1, 2016, US EPA Administrator Gina McCarthy complied with a court order and signed a proposed Superfund rule to require facilities in the hard rock mining industry to provide financial assurance for cleanup and related environmental costs, as required by Section 108(b) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). 42 … Continue Reading

Ninth Circuit Rules Smelter Emissions Are Not a CERCLA Disposal

The Ninth Circuit’s recent opinion in Pakootas v. Teck Cominco Metals, Ltd., addressed whether, “[w]hen a smelter emits lead, arsenic, cadmium, and mercury compounds through a smokestack and those compounds contaminate land or water downwind, . . . the owner-operator of the smelter [can] be held liable for cleanup costs and natural resource damages under … Continue Reading

The Air (Emissions) of Spring May Soon Give Rise to Unprecedented CERCLA Liability

As 2015 came to a close, the Ninth Circuit Court of Appeals quietly notified the parties in a decades-long environmental dispute that, in April 2016, the court will hear arguments in a case that could reshape CERCLA liability forever.  The basis for the pending appeal is a district court order holding that air emissions could … Continue Reading

US District Court Holds CERCLA Displaces Federal Common Law Public Nuisance Claims

The US District Court for the Eastern District of Washington recently held in Anderson v. Teck Metals, Ltd. that CERCLA displaces federal common law claims for public nuisance based upon the standard for displacement set out by the US Supreme Court in American Elec. Power Co., Inc. v. Connecticut and the Ninth Circuit in Native Village of Kivalina v. Exxon … Continue Reading

CERCLA Article by Christopher Thomas of Squire Patton Boggs in Arizona State Law Journal Previews Key Legal Issues Expected Under the US Statute

Squire Patton Boggs’ Attorney Christopher D. Thomas recently authored an article addressing the crucial legal issues CERCLA practitioners can expect will be at the front and center of hazardous substance litigation in the next several years. The law review article was first published by Arizona State Law Journal, Volume 46, Special Issue and is available here.… Continue Reading

Environmental Groups Are Seeking To Force US EPA To Create Superfund Financial Responsibility Rules Through Litigation

On August 8, 2014, a coalition of environmental groups filed a Petition for Writ of Mandamus  to the D.C. Circuit seeking an order that US EPA “has unreasonably delayed issuing financial assurance rules” under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Section 108(b), 42 U.S.C. 9608, and directing US EPA to finalize the rules under this … Continue Reading

US Court of Appeals for the Eighth Circuit Preserves CERCLA Contribution Protection Despite Tolling Agreement

In Asarco v. Union Pac. R.R. Co., 2014 U.S. App. LEXIS 15285 (8th Cir. 2014), the Eighth Circuit affirmed the lower court  in Asarco LLC v. Union Pac. R.R. Co., 2013 U.S. Dist. LEXIS 108852 (D. Neb. Aug. 2, 2013), dismissing the contribution, breach of contract, and declaratory judgment claims brought by Asarco against Union Pacific … Continue Reading

Sixth Circuit Follows Suit on CERCLA Contribution/Cost Recovery Claims, Underscores the Importance of Settlement Language

On July 14, the Sixth Circuit joined five other Circuits in holding that parties who have settled their Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims with the government are foreclosed from seeking cost recovery from other potentially responsible parties (PRPs) under CERCLA § 107.  In Hobart Corp. v. Waste Management of Ohio, Inc., … Continue Reading

US Supreme Court Holds CERCLA Does Not Preempt State Statutes of Repose

The US Supreme Court has again reiterated that the federal Superfund law should be interpreted narrowly and plainly, this time while addressing the statute’s impact on state tort theories arising from releases of hazardous substances.   In CTS Corp. v. Waldburger, the Court held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not preempt … Continue Reading

US Supreme Court to Hear CERCLA Preemption Case

The US Supreme Court recently announced it will hear an appeal of the Fourth Circuit’s decision in Waldburger v. CTS Corp., No. 12-1290 (4th Cir. 2013) involving the preemption of state statutes of repose by Section 9658 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  In Waldburger, the Plaintiffs sued CTS Corporation for nuisance after discovering their lands were … Continue Reading

US EPA Approves (Again) Phase I ESA Standard ASTM E1527-13; Announces Intent to Remove Reference to ASTM E1527-05 in AAI Rule

On December 30, 2013, US EPA issued its final rule approving use of ASTM E 1527-13 Standard Practice for Environmental Site Assessments to satisfy the All Appropriate Inquiry (AAI) requirements under CERCLA Section 101(35)(B).  The rule is effective immediately.  As expected and reported in our prior frESH law blog, US EPA clarified that “today’s rule … Continue Reading

USEPA Approves Use of Phase I ESA Standard ASTM E 1527-13 for AAI

On August 15, 2013, USEPA published a direct final rule in the Federal Register approving use of new ASTM Standard E 1527-13, “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process” to satisfy the All Appropriate Inquiry (AAI) requirements under Section 101(35)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)  and set forth in 40 CFR … Continue Reading

First Appellate Court Ruling on Superfund Bona Fide Prospective Purchaser Defense Highlights Risks of Post-Acquisition Conduct

In the first appellate court ruling to address the post-closing obligations of a party asserting the Superfund bona fide prospective purchaser (BFPP) defense, the U.S. Court of Appeals for the Fourth Circuit affirmed that a South Carolina brownfields developer forfeited the defense because of its failure to exercise due care with regard to existing contamination. … Continue Reading

USEPA Expands Enforcement Guidance To Protect More “Bona Fide” Tenants Under CERCLA

On December 5, 2012, USEPA issued revised guidance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that expands protections for tenants that might otherwise be held liable for cleanup and remediation costs at leased properties.  This guidance[1] replaces USEPA’s prior 2009 guidance.  When Congress amended CERCLA with the Superfund Amendments and Reauthorization Act … Continue Reading
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