A few months ago, we reported on an interesting Seventh Circuit opinion on CERCLA §107 claims issued in the Fox River clean-up litigation in Wisconsin.  The Fox River clean-up, and the ensuing private party litigation, represents one of a number cases that have arisen from EPA’s efforts to remediate water bodies throughout the country that have been declared to be Superfund sites—including the Lower Passaic River and Newark Bay in northern New Jersey, the Hudson River in upstate New York, and the Gowanus Canal in Brooklyn.  Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, CERCLA, Cleanup, Contamination, Cost Recovery, Decisions of Note, Remediation, Superfund

New Jersey’s Spill Act is similar to, but older than, CERCLA and like CERCLA, many of its contours have yet to be defined.  The New Jersey Supreme Court’s unanimous decision in NJDEP v. Dimant (No. 067993 Sept. 26, 2012), attempts to rectify that in two important areas. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, Cost Recovery, Decisions of Note, New Jersey, Remediation, Removal, Spill Act

The Delaware River Basin Commission (“DRBC”) was created with the approval of Congress in 1961 through the Delaware River Basin Compact, an agreement between the New York, Pennsylvania, New Jersey, Delaware, and the federal government for planning, conservation, utilization, development, management and control of the water resources of the Delaware River Basin (the “Basin”).  In June, 2010, the DRBC placed  a moratorium on natural gas development in the Basin, which includes areas within the Marcellus Shale formation, pending the adoption of regulations governing such development.  Draft regulations were published for comment in 2010, and revised draft regulations were published in November, 2011.  However, they have not yet been adopted by the DRBC, leaving the moratorium in place. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Decisions of Note, Drilling, Exploration, Marcellus Shale, NEPA, Oil and Gas, Standing

Often, the most important concern for a landowner facing a cost recovery action is not liability, but rather insurance coverage.  And then, the question may not be “is it covered” but “how much am I covered for?”  On August 9, 2012, the California Supreme Court issued its opinon in California v. Continental Insurance Co.. No. S170560 (Ca. Aug. 9, 2012), providing some comfort to parties locked in expensive clean-up battles. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Class Actions, Cost Recovery, Decisions of Note, Insurance Coverage, Remediation, Superfund

The Fox River clean-up – or rather, litigation concerning the clean-up – has resulted in some meaty written opinions for CERCLA lawyers to chew over, particularly on the issue of apportionment in a post BNSF world.  Friday’s decision by the Seventh Circuit Court of Appeals in United States v. NCR Corp., No. 10-C-910 (7^th Cir. Aug. 3, 2012) is no exception, with the Court not only tackling divisibility, but also hinting that NCR might have 107(a) claim against other PRPs, an issue that the United States Supreme Court left unresolved in the Atlantic Research decision. Read More »

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The U.S. District Court for the Western District of Pennsylvania issued a short but important decision this week concerning the applicable statute of limitations under Pennsylvania law for an insurance carrier’s allegedly improper refusal to accept the defense of its insured.  Wiseman Oil Co., Inc. v. TIG Insurance Co., Civ. Action No. 011-1011 (W.D. Pa.), is an environmental insurance case brought against an insurer for breach of contract and bad faith for failure to defend a CERCLA action.  After answering the complaint, the defendant insurer filed a motion for judgment on the pleadings, arguing that the action – filed in 2011 after the insured entered into a Consent Decree to resolve the underlying litigation – was time-barred because the insured’s claims accrued in 2004, when the insurer initially refused to provide the insured with a defense. Read More »

Share | Email| Comments|  Topics: CERCLA, Decisions of Note, Duty to Defend, Insurance Coverage, Statute of Limitations, Superfund, Uncategorized

With increasing frequency, courts around the country are using their inherent power to control the proceedings before them in order to structure environmental and toxic tort cases in such a way as to reduce, as much as possible, cases to their essence and, more importantly, ensure that the time and resources of parties are not needlessly wasted on discovery or lengthy proceedings when spurious claims are brought.  And that’s exactly what has happened in the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218 (Denver Co. Dist. Court  May 9, 2012), where the Court dismissed plaintiffs’ claims against companies involved in drilling natural gas wells when the plaintiffs failed to show, prior to the initiation of discovery, that there was a prima facie basis for associating their personal injury claims with the defendants’ activities. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Drilling, Marcellus Shale, Medical Monitoring, Multi-District Litigation, Oil and Gas, Procedure, Real Estate, Toxic Torts

In the second appellate case within the past year addressing the “diligent prosecution” bar under environmental citizen suit provisions, the Fifth Circuit Court of Appeals held last week that the Clean Water Act’s bar on citizen suits when governmental enforcement action is underway is not jurisdictional – reversing the dismissal of a citizen suit at the Rule 12(b)(6) stage, and remanding the case for further proceedings before the district court. Read More »

Share | Email| Comments|  Topics: Cases to Watch, Citizen Suit, Clean Water Act, Decisions of Note, Diligent Prosecution, Subject Matter Jurisdiction

As we reported previously, recent exploration and production in the Marcellus Shale has forced Pennsylvania courts to address interpretation of oil and gas leases which may be over 100 years old, relying on cases that are similarly over 100 years old, and to harmonize or reject those cases as they impact the people and property in the 21^stcentury.  On March 26, the Pennsylvania Supreme Court attempted to do just that in T.W. Phillips Gas and Oil Co. v. Jedlicka, No. 19 WAP 2009 (Mar. 26, 2012).  The case involved a 1926 oil and gas lease which provided, in relevant part, that the lease would continue for “as long . . . as oil or gas is produced in paying quantities” and required interpretation of the term “in paying quantities.”  Read More »

Share | Email| Comments|  Topics: Decisions of Note, Drilling, Exploration, Leases, Marcellus Shale, Oil and Gas, Pennsylvania, Real Estate, Royalties

In a unanimous opinion that probably surprises no one, today the United States Supreme Court ruled in Sackett v. EPA, No. 10-1062 (Mar. 31, 2012), that Administrative Compliance Orders are final agency orders which are subject to the Administrative Procedures Act and thus can be appealed even in the absence of an enforcement action by the EPA. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Case Update, CERCLA, Clean Water Act, Decisions of Note, Due Process, Enforcement Action, Procedure, Real Estate, Supreme Court, Uncategorized, Wetlands