LexisNexis® Legal Newsroom
CERCLA "innocent landowner" defense is very difficult to prove; allocation of response costs is highly unlikely to be made as the result of an MSJ

Charles Bruner owned the Vista Ray subdivision from 1978 until 1982; the subdivision was adjacent to Mesa de Oro. When purchased by Bruner, the land was undeveloped. Bruner caused the site to be developed; he excavated and trenched the land for roads, underground utilities, and finished lots. In approximately...

EPA has authority to order Department of Defense to remediate sites, says Department of Justice

There has been a long-running battle between DoD and EPA over the scope and extent of EPA's authority to order DoD to remediate sites. DoD went so far in the first George W. Bush administration as to seek legislative relief, which failed to pass. The battle was joined anew in May when DoD wrote to...

California state Court of Appeal applies the responsible corporate officer doctrine to violations of the State's UST laws

In 1994 an underground storage tank owned and operated by The Customer Company leaked over 3,000 gallons of gasoline into the ground in the City of Galt [part of California's Central Valley south of Sacramento]. The Customer Company was a family company in which the Roscoes were officers, directors...

EPA approves new ASTM standard for CERCLA 'all appropriate inquiry' defense involving purchase of forest and rural tracts of 120+ acres

In 2002, the Small Business Liability Relief and Brownfields Revitalization Act ("the Brownfields Amendments") was signed into law; in part, the Brownfields Amendments revised some of the provisions of CERCLA Section 101(35) and limited Superfund liability under Section 107 for bona fide prospective...

2010 Budget Plan assumes superfund tax is reinstated in 2011, if the economy has recovered

The so-called Superfund tax on oil and chemical companies expired in 1995. However, President Obama's proposed budget for FY 2010 assumes that the tax will be reinstated in 2011 "after the economy recovers". The budget assumes that $17.2 billion in revenue will be generated from FY 2011...

EPA Inspector General criticizes EPA for management of Superfund accounts

In 1990, EPA had five special Superfund accounts containing a total balance of $1.9 million. As of May 31, 2008, there were 819 special accounts holding $1.1 billion. In a recent report, the EPA Inspector General noted that management of the accounts is "fragmented and uncoordinated." Of...

Supreme Court Decision Narrows the Definition of an Arranger in CERCLA Litigation and Encourages Apportionment of CERCLA Cleanup Costs by Property Owners Instead of Complete Joint and Several Liability

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) appellate decisions are often complex and difficult to read tomes, filled with multiple United States Code sections and acronyms. On May 4, 2009, the United States Supreme Court waded into CERCLA and issued an opinion that...

U.S. Supreme Court addresses CERCLA apportionment and arranger issues, and gives a common-sense interpretation to the concept of arranger liability

In a prior post [3/29/08], the ruling of the 9th Circuit in United States v. Burlington N. & Santa Fe Ry. Co., 520 F.3d 918 (9th Cir. 2008), was reviewed. The U.S. Supreme Court took review, and has now reversed. Burlington Northern & Santa Fe Ry. v. United States, 2009 U.S. LEXIS 3306 (5/4/09...

House bill introduced to make permanent a tax incentive to remediate Brownfield sites

The tax treatment of remediation costs is a wonder to behold in terms of its complexity. Capitalize? Expense? Good luck. If we are serious about wanting contaminated sites addressed, then the costs of such activities should always be allowed to be expensed in the tax year that the money is actually expended...

Eighth Circuit "clarifies" issues left unresolved in U.S. Supreme Court's Atlantic Research and Cooper Industries opinions

In 1983, the City sought to restore a long closed well for use as a drinking water resource. It received complaints re taste and odor. The State of Nebraska and EPA investigated, and ultimately the site was added to the NPL in 1986. EPA determined that the VOC contamination originated from seven source...

Under California's Polanco Act, owners of a right-of-way to property are not owners or operators for subsurface contamination they did not cause and had no duty to investigate

California's Polanco Act provides a powerful (some would say one sided) tool for Redevelopment Agencies to force the remediation of a site subject to redevelopment, or to cause PRP's to reimburse such agencies for the remedial cost outlays. [As an aside, it should be noted that Governor Brown...