Category Archives: CERCLA defenses

The Arbitrary and Capricious Standard Remains in the Eye of the Beholder

In a very interesting – and extremely rare – case, Emhart Industries has successfully defended itself against a unilateral administrative order issued by EPA under CERCLA, on the ground that key decisions made by EPA were arbitrary and capricious.  The decision, concerning the Centredale Manor Restoration Project Superfund Site, is worth a read for CERCLA practitioners, even though it weighs in at 108 pages.… More

Stop the Presses. Superfund is Stupid.

I know that pointing out CERCLA’s stupidity has something of a dog bites man quality, but sometimes Superfund’s stupidity bears repeating.  Today’s exhibit?  New York v. Next Millenium Realty, in which Judge Feuerstein held – rightly, I am compelled to note – that New York’s natural resources damage claim was timely, because the site at issue had been added to the National Priorities List less than three years before the suit was filed.… More

Determining An Intent To Dispose Under CERCLA Remains a Puzzlement

Determining when a person has “arranged” for the disposal of a hazardous substance has long been difficult.  The Supreme Court brought some clarity to the issue in Burlington Northern, when it said that:

While it is true that in some instances an entity’s knowledge that its product will be leaked, spilled, dumped, or otherwise discarded may provide evidence of the entity’s intent to dispose of its hazardous wastes,… More

CERCLA Remains Ridiculous: A Remedy In Operation For 18 Years Is “Short Term”

Far too frequently, we are reminded just how hard judges must work to save CERCLA from itself.  The decision last week in California River Watch v. Fluor Corporation is the most recent compelling example.

Fluor Corporation has been performing response actions at a site, including operating a soil vapor extraction system, since no later than 1997.  Fluor’s remedial action plan was not approved until 2011 and a modified RAP was approved in 2014.… More

Arranger Liability for Sale of a Used Product: Standard of Metaphysics Or An Unstated Rule?

In Consolidated Coal Company v. Georgia Power Company,the Fourth Circuit recently applied the same four part test used by trial court(and blogged about here) to hold that the sale of a used product containing PCBs would not give rise to arranger liabiity under Section 107(a)(3) of CERCLA.  The appeals court reaffirmed the basic proposition that selling a used product that contains hazarous substances which eventually will be disposed is not sufficient to establish arranger liability:

Anytime an entity sells a product that contains a hazardous substance,… More

CERCLA’s Statutory Liability Defenses — How Strict Is CERCLA Liability?

It was no surprise that the Second Circuit in In re September 11 Litigation recently affirmed the lower court’s ruling that contamination caused by the 9/11 attacks was within CERCLA’s “Act of War” defense.  Although CERCLA is often said to impose strict liability regardless of fault, the Second Circuit’s decision indicates that CERCLA’s liability scheme was not intended to reach contamination that was caused entirely by the hostile acts of others:

The attacks wrested from the defendants all control over the planes and the buildings, … More

CERCLA’s Broad Sweep of Liability For Owners

Some decisions are valuable not because they make new law but because they reaffirm well known principles of law.  City of Banning v. Dureau is one such decision.  There, a federal district court in California ruled that an owner of real property was strictly liable under CERCLA for the release of hazardous substances on her property and could not escape CERCLA liability by arguing that she was ignorant of the conditions giving rise to the release.   … More

More on the Permit Shield Defense: A Permittee Is — Gasp — Entitled to Rely on Regulations and Permits Issued by Delegated State Agencies

Late last month, we noted that a permittee may not rely on the permit shield defense unless it has clearly informed the permitting agency of the nature of its discharge.  Now we see the flip side.  In Wisconsin Resources Protection Council v. Flambeau Mining Company, the 7th Circuit Court of Appeals held that Flambeau Mining was entitled to rely on the permit shield defense with respect to its stormwater discharges,… More

CERCLA Liability For Relocation of Hazardous Waste — Is There Any Limit?

Just as tortfeasors take their victims as they find them, s0 PRPs take their hazardous waste sites as they find them.   This rule has been around since the beginning of CERCLA and means that a party which arranges for the disposal of its waste at one location can be generally be held responsible for whatever response costs that waste generates, including environmental cleanup costs at a second location if that waste is transshipped without the knowledge of the PRP.… More

PCS Nitrogen Inc. v. Ashley II of Charleston: Required Reading for Superfund Lawyers

The Fourth Circuit handed down a primer on CERCLA liability last week in PCS Nitrogen Inc. v. Ashley II of Charleston.   It should be required reading for Superfund lawyers.  The facts in the case are worthy of a law school law school exam question on CERCLA– contamination arising from manufacturing of fertilizer beginning in the 19th century with the original corporate operator long since dissolved giving rise to new generations of corporate owners and operators —… More