News & Analysis as of

Superfund Environmental Liability Contaminated Properties

Holland & Knight LLP

New York State Issues Updated Soil Vapor Intrusion Guidance

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The New York State Department of Health (NYSDOH) in late February 2024 announced an update to its Guidance for Evaluating Soil Vapor Intrusion in the State of New York. For the first time, the Soil Vapor/Indoor Air Decision...more

Miles & Stockbridge P.C.

With U.S. EPA’s Approval of ASTM E1527-21, a Revised Standard for Environmental Site Assessment Should Be Used

The U.S. Environmental Protection Agency (“U.S. EPA”) has revised the standards by which real property purchasers, lessees and environmental professionals should conduct a Phase I Environmental Site Assessment (“Phase I...more

Jones Day

Environmental Agencies, Superfund Cleanups, and Managing Enforcement Actions

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Partner Jane Borthwick Story talks about EPA Superfund sites, sorting out a company’s responsibilities related to a cleanup, how previous transactions can relate to liability, and the value of a long-term relationship with...more

Williams Mullen

Limitations Bar Superfund Contribution Action

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As a general rule, the law will not allow plaintiffs to sit on legal rights indefinitely. Superfund actions are no exception. The 6th Circuit recently applied this principle, finding a declaratory judgment of liability...more

Woods Rogers

Virginia DEQ Suspends Issuance of Landowner Liability “Comfort Letters”

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On December 1, 2021, the Virginia Department of Environmental Quality (“VDEQ”)  announced via a notice on its Brownfields website that it stopped accepting applications for Bona Fide Prospective Purchase (“BFPP”) and other...more

Wyrick Robbins Yates & Ponton LLP

An Environmental Primer for Lenders

 Given the current demand for downtown properties, borrowers are acquiring contaminated properties like never before. Against this backdrop, lenders should become familiar with the basics of environmental laws imposing...more

Miles & Stockbridge P.C.

Recent BUILD Act “Builds” on Existing Brownfields Program through Additional Liability Protection and Redevelopment Incentives

Despite last minute veto threats from the White House, the bipartisan Consolidated Appropriations Act of 2018 was signed into law earlier this year. Buried deep in this massive omnibus spending bill is a major win for...more

Arnall Golden Gregory LLP

Despite “As Is” Basis, Seller Allocated Liability Under Superfund for Failure to Address Contamination of Property

A federal court recently found the City of Fairbanks, Alaska responsible for 55% of the remediation costs necessary to clean up property it used to own because it should have taken action to mitigate the harm or warn the...more

Williams Mullen

Selling Property “As Is” Won’t Protect Seller From Superfund Liability

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Everyone is familiar with the two little words - “as is” - that pop up in real estate contracts. The “as is” clause is a means of allocating risk between seller and buyer. Generally, a seller who sells property “as is” will...more

Blank Rome LLP

PRPs May Want To Dig In With Divisibility Defense

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In a victory for potentially responsible parties at multiparty contamination sites, a federal district court in U.S. v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015), held a PRP established that environmental harm at a...more

Foley Hoag LLP - Environmental Law

CERCLA Cost Recovery v. Contribution Again: It’s Still Unfair

Parties in CERCLA cases continue to deal with the consequences of the Supreme Court decisions in Aviall and Atlantic Research which essentially created two classes of PRPs: (1) PRPs who entered into CERCLA settlements with...more

Foley Hoag LLP - Environmental Law

Is Death A Defense To CERCLA Liability?

In contrast to the early days of Superfund when no argument for extending CERCLA liability was too far-fetched, the Second Circuit recently rejected one of the all-time “Hail Mary” passes for CERCLA contribution. The case,...more

Foley Hoag LLP - Environmental Law

The Emerging Non-Expansive View of CERCLA Liability: The Decline of Tanglewood East

The specter of environmental harm used to frighten courts and spawned a generation of decisions extending Superfund liability to virtually any party with a nexus to a site that was contaminated. One case that signaled just...more

Foley Hoag LLP - Environmental Law

CERCLA’s Act of War Defense — Potential Collateral Damage

For the first time in CERCLA’s history, a court has concluded that a Superfund claim was barred by the ”act of war” defense. In that case, In Re September 11 Litigation, the judge ruled that a property owner a block from...more

BakerHostetler

EPA Lifts Threat of CERCLA Liability for Some Tenants of Brownfields

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Tenants who lease currently or formerly contaminated property can now benefit from protections from cleanup liability that were once available only to purchasers of such property. EPA announced its new policy in a December...more

Burr & Forman

EPA Guidance Further Clarifies The Protections Available To Tenants Under Superfund’s BFPP Defense

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As part of an evolving effort to encourage the redevelopment of brownfield properties, the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) was amended in 2002 to provide...more

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