In United States v Conagra Grocery Products Company, LLC, 2014 WL 971973 (D. Maine 2014), the court held that Conagra could be liable for cleanup costs as corporate successor to the liabilities of a corporate successor to a corporate successor to a corporate successor, even though some of the intervening transactions were asset purchases.  In following the twisted chain of corporate transactions, the court provided…

A recent decision by a federal district court in Illinois answered the above question by concluding that the danger does not have to be very imminent.  Indeed, a plaintiff could state a claim by alleging that contamination that had been in the ground for more than 50 years and is not currently threatening anyone, may create an imminent danger.  City of Evanston v Texaco, 2014…

The United States Supreme Court has agreed to hear a case interpreting the CERCLA provision that preempts State statutes of limitations. Section 9658 of CERCLA provides that for actions brought under State law relating to hazardous substances or pollutants, the statute of limitations cannot begin to run until the injured party knew or should have know of the injury. This provision preserves claims that might…

A New York court recently concluded that sampling data cannot be protected from disclosure under either the attorney client privilege or the attorney work product doctrine. In Abbo-Bradley v City of Niagara Falls, __ F.Supp.2d __ (W.D. N.Y. July 2013), plaintiffs instituted an action alleging that they had suffered personal injury and property damage as a result of releases of hazardous waste. Shortly thereafter, plaintiffs…

In Litgo New Jersey, Inc. v Commissioner of New Jersey Department of Environmental Protection, 2013 WL 3985003 (3d Cir. August 2013), the Third Ciruit Court of Appeals discussed the issue of when a party who has liability as current owner also has liability as current operator. While both the current owner and the current operator can be strictly liable under CERCLA for response costs, the…

Earlier this summer, the Environmental Protection Agency published a report entitled "Our Built Environments: A Technical Review of the Interactions Among Land Use, Transportation, and Environmental Quality." The document examines the interactions among these factors in a manner that is different from the way environmental impacts are often looked at. For example, the redevelopment of a contaminated site is looked at positively, not only because…

A recent decision by an appellate court in Florida (Miami-Dade County v Concrete Structures, Inc., May 15, 2013) raised the issue of the extent to which a regulator can inspect (search) the premises of a regulated party without a permit. The Supreme Court has addressed the issue a number of times and in New York v Berger, 482 U.S. 691 (1987), the Supreme Court upheld…

The Ninth Circuit Court of Appeals in Chubb Custom Insurance Co. v. Space Systems/Loral, Inc., 710 F.3d 946 (9th Cir. 2013), affirmed the dismissal of a CERCLA (Comprehensive Environmental Response, Compensation and Liability Act) cost recovery action by an insurer against parties alleged to be responsible for the contamination. The insurer brought its claim under both §107 and §112 of CERCLA, which address cost recovery…

In Menasha Corp. v United States Department of Justice (7th Cir. 2013), the court held that the work product privilege protects Department of Justice memoanda from discovery, even if Depatment of Justice lawyers appear to be adverse to each other. The suit arose out of a Superfund site in Wisconsin at which the United States filed an action against a number of entities that were…