When a party “cashes out” of its liability to the government under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), under Environmental Protection Agency (EPA) guidance in place since 1988 the settling party typically pays a premium over what would otherwise be its equitable share. Even though settlements have featured premiums for decades, … Continue Reading
From the first days of Superfund litigation, lawyers and courts have complained that Congress did not distinguish itself when drafting the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sections 9601-75. As the law has developed, court decisions have created additional problems. The interplay among the private cost recovery provision of Section 107(a)(1-4)(B) … Continue Reading
On April 26, 2019, the Pennsylvania Environmental Hearing Board (EHB) voided two amendments to a prospective purchaser agreement (PPA) for the Bishop Tube Site entered into in 2007 and 2010. Del. Riverkeeper Network v. Dep’t of Envt’l Prot’n, EHB Dkt. No. 2018-020-L (Constitution Drive Partners). The underlying PPA was dated 2005. The Department of Environmental … Continue Reading
Section 400(h) of the National Contingency Plan (NCP) contains an unremarked, yet problematic, last sentence. The NCP, of course, governs response actions under the federal Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA or Superfund); the government cannot recover costs incurred inconsistently with that regulation. 42 U.S.C. § 9607(a)(1-4)(A). Section 400(h) provides: (h) Oversight. The … Continue Reading
There are over 1,300 sites listed on the Environmental Protection Agency’s National Priorities List of contaminated sites that require cleanup, over a hundred of which are located in Pennsylvania. In May, EPA Administrator Scott Pruitt promised to get “hands-on” with the Superfund program in order to expedite the cleanup of contaminated sites around the country, … Continue Reading
Regulators need access to environmentally contaminated sites. They have to study them to determine whether the contamination requires a cleanup, they have to choose a cleanup, they have to conduct or direct implementation of that cleanup, and then they have to provide for its monitoring and maintenance. But when the contaminated property is not the … Continue Reading
The federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) allows private parties that incur cleanup costs to reallocate those costs to others through a cost recovery claim under section 107(a)(1-4)(B) or a contribution claim under section 113(f)(1) or (3)(B). So do some state statutes and state common law. There can only be one allocation … Continue Reading
If you have a Superfund cleanup obligation, you may want to collect on insurance (if you have any) and also to seek contribution from others responsible for the Site. What happens to the contribution claim when you collect on the insurance? In most Superfund matters, the parties have simply ignored insurance recoveries. However, in those … Continue Reading
My October Environmental Practice Column in the Pennsylvania Law Weekly considers issues presented by the intersection of the bar on pre-enforcement review and reliance on “institutional controls.” These issues come up in federal Superfund matters under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-75. However, the discussion was motivated by a September 4 ruling by … Continue Reading
Section 107(a) of CERCLA says that section 107(b) lists the only defenses to a cost recovery claim, but it turns out there are many more. David Mandelbaum's monthly column in Pa. Law Weekly explores what this means.
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When is a declaratory judgment required, permitted, or inappropriate under the federal Superfund statute? My December column in the Legal Intelligencer / Pennsylvania Law Weekly explores these issues.
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