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Jenner & Block: U.S. EPA Issues Revised Guidance On The Use Of Institutional Controls At Contaminated Sites

By Steven M. Siros, Partner, Jenner & Block U.S. EPA's Office of Solid Waste and Emergency Response ("OSWER") recently issued revised guidance relating to the use of institutional controls at Superfunds sites and other contaminated properties. The first guidance document, titled...

Jenner & Block: New EPA Guidance On Institutional Controls

By E. Lynn Grayson , Partner, Jenner & Block EPA has released guidance on the use of institutional controls at CERCLA, RCRA and UST sites. The guidance titled Institutional Controls: A Guide to Planning, Implementing, Maintaining and Enforcing Institutional Controls at Contaminated Sites is...

Jenner & Block: New MOU Between EPA And Kentucky

By E. Lynn Grayson , Partner, Jenner & Bloc EPA Region 4 and the Commonwealth of Kentucky Department of Environmental Protection (KYDEP) have entered into a Memorandum of Understanding (MOU) to support and strengthen efforts to achieve cleanups in Kentucky. The MOU is intended to help property...

Pepper Hamilton: New Liability Protection for Tenants on Brownfield Properties

By Jane C. Luxton, Partner , Pepper Hamilton LLP In a December 2012 Guidance Memo, the Environmental Protection Agency (EPA) announced new enforcement principles intended to enhance protections for tenants on contaminated or previously contaminated "brownfield" properties. The new guidance...

Tenants Might Breathe a Little Easier

By William A. Anderson, II In new guidance, the Environmental Protection Agency (EPA) has expanded the classes of tenants that, in the exercise of its enforcement discretion, it may consider Bona Fide Prospective Purchasers (BFPPs) on a site-specific basis. See "Revised Enforcement Guidance Regarding...

Jenner & Block: DOJ Not Required To Produce Interagency Memorandum in CERCLA Case

A recent Seventh Circuit decision rejected a PRP's efforts to obtain interagency memorandum and other communications between the Environmental Enforcement and the Environmental Defense Sections within the United States Department of Justice ("DOJ"). See Menasha Corp. et al. v. United States...

Jenner & Block: Seventh Circuit “Clarifies” Position On CERCLA 113 v. 107 Claims

On July 31, 2013, the Seventh Circuit Court of Appeals issued an Amended Opinion in the case of Bernstein v. Bankert , Nos. 11-1501 and 11-1523. As discussed previously in this blog , the Seventh Circuit's original opinion addressed, among other things, the circumstances in which a plaintiff can...

EPA Allows New Standard for Conducting Environmental Due Diligence

On August 15, 2013, the United States Environmental Protection Agency (EPA) published a proposed and "direct final" rule that expands the options available to parties seeking to qualify for certain defenses to liability under Superfund and other laws. This change will provide prospective purchasers...

Preparing for Exit: Will Your Environmental Liability Disclosures Comfort a Buyer?

The following post is provided by our guest author, Graham Crockford from TRC Environmental Corporation. Graham can be reached at gcrockford@trcsolutions.com . Our firm is often retained to assist companies evaluate environmental risk/liabilities during acquisitions and divestitures. Whether a company...

High Court Agrees To Decide If CERCLA Preempts State’s Statute Of Repose

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on Friday [ enhanced version available to lexis.com subscribers ], agreed to take up a case to decide if the Fourth Circuit U.S. Court of Appeals erred in reviving claims brought by North Carolina landowners under the Comprehensive Environmental...

U.S. Supreme Court Declines To Review 7th Circuit CERCLA Case

By Allison A. Torrence The U.S. Supreme Court has denied cert in the widely-followed case of Bernstein v. Bankert , No. 13-568, [ enhanced version available to lexis.com subscribers ], declining to review the Seventh Circuit's ruling on the availability of CERCLA cost recovery and contribution...

Top Environmental Issues Facing Automotive Suppliers in 2014

Executive Summary Like any other part of the manufacturing sector, auto suppliers face a number of challenges complying with environmental regulatory requirements, in particular managing and monitoring development of greenhouse gas emissions limits in the United States, European Union, and elsewhere...

EPA Formally Recognizes ASTM E1527-13 as Compliant with CERCLA's All Appropriate Inquiry Rule

By Kyle R. Johnson The U.S. EPA has formally recognized a new standard (ASTM Standard E1527-13) to demonstrate compliance with the All Appropriate Inquiry (AAI) Rule when conducting Phase I environmental site assessments. The new Standard is the first significant revision to the ASTM Phase I standard...

Picture Perfect Result? EPA and Kodak Reach Agreement For Clean Up Of Contamination at Business Park and River

Kodak Also to Pay for Liability at Superfund Sites in New York and New Jersey The federal government has entered into settlement agreements with Eastman Kodak Company that resolve environmental claims and liabilities asserted by the United States against Kodak. After Kodak filed for Chapter 11...

Supreme Court: CERCLA Does Not Preempt State’s Statute Of Repose

WASHINGTON, D.C. — (Mealey's) A U.S. Supreme Court majority today reversed a Fourth Circuit U.S. Court of Appeals panel’s ruling reinstating a lawsuit brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a company accused of contaminating...

U.S. Supreme Court Rules That CERCLA Does Not Preempt State Statutes Of Repose

The U.S. Supreme Court has clarified the preemptive power of CERCLA, holding that CERCLA does not preempt state statutes of repose, even though it does preempt certain state statutes of limitation. On June 9, 2014, the Supreme Court ruled in the case of CTS Corp. v. Waldburger , No. 13-339, [ enhanced...

North Carolina Seeks To Amend Statute Of Repose Following Waldburger Decision

Within hours of the Supreme Court's decision in CTS Corporation v. Waldburger , [ enhanced version available to lexis.com subscribers ], finding that that CERCLA's "discovery rule" did not preempt North Carolina's 10-year statute of repose, [ enhanced version available to lexis...

Supreme Court Narrows CERCLA Preemption of State Limits on Tort Claims

In an opinion strictly interpreting the statutory text of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the U.S. Supreme Court limited the scope of a CERCLA provision that is designed to extend state law claims for personal injury or property damage resulting from...

Appellate Court Rejects Challenge To NPL Listing

A recent decision from the U.S. Court of Appeals for the D.C. Circuit, [ enhanced version available to lexis.com subscribers ], rejected a challenge to U.S. EPA's decision to list a site on the National Priorities List ("NPL"), finding that although the petitioner had standing to challenge...

Sixth Circuit Weighs in on CERCLA Cost Recovery, Contribution Actions

By Glenn A. Harris The U.S. Court of Appeals for the Sixth Circuit Court recently issued an important opinion, [ enhanced version available to lexis.com subscribers ], related to claims to recover environmental cleanup costs at an Ohio landfill. The court’s ruling in Hobart Corporation, et...

WVDEP Releases Draft Interpretive Rule on Aboveground Storage Tank Inspection, Certification, and Spill Prevention Plan Requirements

The West Virginia Department of Environmental Protection (WVDEP) has released a draft " Interpretative Rule " to implement certain inspection, certification, and spill prevention – response plan provisions of the Aboveground Storage Tank Act (AST Act) enacted earlier this year. The AST...

Significant Change to EPA’s 'All Appropriate Inquiry' Rule

Performing a Phase I environmental site assessment has long been a routine, but integral part of the environmental due diligence in any transaction involving the acquisition of an interest in commercial and industrial real property. Perhaps the most important aspect of performing a Phase I is the information...

EPA Eliminates the Uncertainty Over Which ATSM Standard to Use for Prospective Property Purchasers

As previously reported , the US EPA initially issued its direct final rule confirming that the new ASTM E1527-13 standard , in addition to the older ASTM E1527-05 standard, would be acceptable for prospective purchasers of real property to conduct “All Appropriate Inquiries” (AAI) under CERCLA...

U.S. EPA and the Army Corps Finalize Much-Anticipated “Waters of the United States” Definition

On May 27, 2015, the United States Environmental Protection Agency (U.S. EPA) and the United States Army Corps of Engineers (Corps) issued a highly anticipated revision to the federal definition of “waters of the United States.” By expanding the application of various regulations under multiple...

South Carolina Court Limits CERCLA Remedies

By Jessica J.O. King The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) allows the federal government to collect funds from or to order a “potentially responsible party” (“PRP”) to clean up contaminated sites. 42 U.S.C.A. §9601 to 9675...