Section 107(a) of the federal Superfund statute begins "[n]otwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section –" certain "covered persons" are liable for certain response costs and natural resources damages.  42 U.S.C. § 9607(a)(emphasis added).  The problem is that section 107(b) does not seem to be complete.  It lists defenses of "act of God," "act of war," or "act of a third-party."  The statute contains other defenses, and the courts have recognized more.  What then should be made of that opening phrase?  I explore this issue in my June column for the Legal Intelligencer / Pennsylvania Law Weekly.  Read Defenses to Superfund Claims:  Is Section 107(b) the Complete List?, 35 Pa. L. Weekly 588 (June 26, 2012), by clicking here.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights