When is Judicial Review Available for an Ongoing Federal Superfund Remediation?

| January 2, 2015

The U.S. Supreme Court has recently declined to consider a case centering on the question of when a citizens’ group may challenge an ongoing environmental remediation under the federal Superfund law. The Court’s decision lets stand a May 2014 ruling by the Seventh Circuit that chipped away at Superfund’s general prohibition on legal challenges to [...]

EPA Clarifies What Phase I Environmental Site Assessment Procedure Satisfies its All Appropriate Inquiries Rule

| October 20, 2014

As most folks in the commercial real estate industry know, the Bona Fide Prospective Purchaser exemption from liability under the federal Superfund law is a very useful tool. Accordingly, a Phase I Environmental Site Assessment is standard practice for nearly every purchase of commercial real estate because it helps to satisfy EPA’s “All Appropriate Inquiries” [...]

Soil Vapor Intrusion Concern Prompts EPA to Support Revision to Phase I Environmental Site Assessment Protocol

| September 23, 2013

The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the occupants. Known as soil vapor intrusion, this threat can come from undiscovered contamination beneath [...]

EPA Announces New Tenant Protections Under Superfund

| April 30, 2013

EPA has just extended to tenants the Bona Fide Prospective Purchaser (“BFPP”) protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement guidance memo allows tenants to hold onto it, assuming the tenant can meet certain requirements. Traditionally, a tenant derived [...]

Migration of Contamination Does Not Automatically Create a Single “Facility” Under CERCLA

| December 12, 2012

A federal court in New York recently decided that the migration of subterranean contamination onto a neighboring property was not, by itself, a sufficient basis to hold a neighboring landowner jointly liable for remediation costs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

Can Entering Into a CERCLA Consent Decree Preclude Subsequent Cost Recovery Actions?

| December 4, 2012

Congress enacted the Superfund Act, whose formal name is the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, in 1980 to promote the clean up (remediation) of properties, typically abandoned landfills or other sites, that had been contaminated by the disposal of hazardous materials. To further this goal, Congress cast a wide net and [...]

Environmental Due Diligence in Real Estate Transactions Blog Series: Part I – Introduction

| April 10, 2012

This blog series is based on an article written by James J. Periconi and published in the Winter 2008 Bloomberg Corporate News Journal.  Mr. Periconi also discusses the details and the nuances of environmental due diligence of commercial real estate transactions in his bi-monthly continuing legal education course.  Although we’ve blogged about environmental due diligence [...]

Court Allows Town’s Trespass and Strict Liability Claims against Neighboring Company to Go Forward

| March 19, 2012

In a recent opinion, Town of Windsor v. Avery Dennison Corp., 2012 U.S. Dist. LEXIS 27264 (S.D.N.Y. Mar. 1, 2012), the United States District Court for the Southern District of New York allowed a town’s claims of strict liability for ultrahazardous activities and trespass against a neighboring manufacturing company to proceed, while dismissing the town’s [...]

Owners of Automobile Repair Shop Found Strictly Liable for Petroleum Discharge under NY Oil Spill Act

| October 11, 2011

If you’re familiar with the harsh reality of property owner liability under the New York State Navigation Law’s Oil Spill Act, this headline shouldn’t raise any eyebrows.  However, the holding of State of New York v. C.J. Burth Services, Inc., 79 A.D.3d 1298, 915 N.Y.S.2d 174 (N.Y. App. 3rd Dep’t 2010), once again confirms the [...]

The Southern District of New York cites to Burlington Northern in an Apportionment Case.

| January 13, 2010

In a recent decision in In Re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation (“In re MTBE”), No. 00 MDL 1898, and related case City of New York v. Exxon Mobil Corporation, No. 04 Civ. 3417 (S.D.N.Y. July 14, 2009), the District Court for the Southern District of New York relied