New Jersey’s Industrial Site Recovery Action of 1993 (“ISRA”) requires owners and operators of industrial facilities to perform site assessment and remediation activities whenever a triggering event, such as a cessation of operations or sale of property, occurs. ISRA exempts, however, owners or operators who generate or use minimal amounts of hazardous substances from compliance with its requirements, known as a “De Minimis Quantity Exemption” or “DQE.” Pursuant to recently promulgated regulations, in addition to demonstrating the total quantity of hazardous substances handled at the facility are below specified regulatory thresholds, NJDEP requires all applicants for a DQE to certify that the applicant has no knowledge of contamination on the property above any remediation standard, regardless of the source, as a pre-condition to approval of a DQE. Read More »

Share | Email| Comments|  Topics: Cleanup, Contamination, ISRA, New Jersey, Real Estate, Remediation

Although CERCLA has been around for many years, courts are still interpreting both its parts and its whole.  In recent years, the Supreme Court has tried to direct traffic between Section 107(a), which permits PRPs to bring cost recovery actions against other PRPs for “any necessary costs of response incurred” by the PRP bringing suit, and Section 113(f), which permits PRPs who have been sued under section 106 or 107(a) or have entered into a judicially-approved settlement with a federal or state government resolving CERCLA liability to bring actions for contribution against other PRPs to recover amounts paid in excess of their equitable share of liability.   Because these two provisions have differing limitations periods, burdens of proof, and allow for different forms of recovery against multiple defendants, the distinction is often significant. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Eleventh Circuit, Enforcement Action, Statute of Limitations, Superfund, Waste

We don’t just write, we speak too!  I’m going to be leading a breakfast roundtable discussion on March 6 as part of ICSC’s University of Shopping Centers.  More details are here and please stop by! Read More »

Share | Email| Comments|  Topics: CERCLA, Clean Air Act, Clean Water Act, Cleanup, Leases, RCRA, Real Estate, Speaking Engagements, Superfund, Waste, Wetlands

This week, the Supreme Court of the State of Montana took a look at statute of limitations issues in the context of state law claims for trespass and nuisance in contamination cases in the case of Burley v. Burlington Northern & Santa Fe Railway Co., 2012 MT 28 (Feb. 7, 2012).  The issue, which was certified to the Court from the United States District Court for the District of Montana was the following: Read More »

Share | Email| Comments|  Topics: Cleanup, Montana, Nuisance, Real Estate, Statute of Limitations, Toxic Torts, Trespass

A little creativity goes a long way and cash-strapped municipal entities need all the creativity they can get. But it doesn’t always put money in your pocket. And such was the result in Emergency Services Billing Corporation, Inc. v. Allstate Insurance Co., No. 11-2381 (7^th Cir. Feb. 2, 2011) which upheld a trial court’s determination that automobiles owned and used for personal purposes are not “facilities” under CERCLA and hence drivers (and their insurance carriers) are not liable for “response costs” incurred in responding to motor vehicle accidents. And thus the Volunteer Fire Department of Westville, Indiana, cannot recoup the amounts it spent in responding to the four separate, unrelated auto accidents that were the subject of the collection efforts. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Indiana, Seventh Circuit

Yes, it sounds like something your 12 year old daughter would call her friend, but here we’re talking about the Bona Fide Prospective Purchaser defense to CERCLA joint and several liability.  MGKF Partner Jonathan Spergel recently wrote about this defense for the Association of Corporate Counsel.  You can find his article, along with others written by MGKF attorneys, at ACC’s Green House Counsel webpage.

Share | Email| Comments|  Topics: Bona Fide Prospective Purchaser, CERCLA, Cleanup, Cost Recovery, Green House Counsel, Real Estate, Superfund

The Supreme Court has had a lot to say in recent years about how the lower courts should be interpreting CERCLA, but the trend appears to have ended, at least for now.  On October 3, the Court declined to review the Eighth Circuit’s decision inMorrison Enterprises, LLC v. Dravo Corp., which held that the contribution provision of § 113(f) of CERCLA provides the exclusive remedy for a PRP that incurs response costs pursuant to an administrative or judicially approved settlement under §§ 106 or 107, such as a consent decree or administrative order on consent (AOC). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Superfund, Supreme Court