District Court Holds that Prior CERCLA § 107(a) Cost Recovery Action Against a Party Limits the Party to § 113(f)(1) Contribution Claim in Subsequent Action

Posted by in CERCLA, Cost Recovery, Environmental Litigation on March 12, 2014

The District Court for the Central District of California recently held in an unpublished opinion that a party cannot bring a CERCLA § 107(a) cost recovery action for response costs which relate to a common liability shared with an earlier § 107(a) action against that party.  Instead, the party can only pursue a § 113(f)…
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California Governor Signs Bill To Limit Certain Prop. 65 Lawsuits

Posted by in Emerging Issues, Environmental Litigation on October 10, 2013

By Michael Einhorn and Nancy Wilms Governor Jerry Brown recently signed into law Assembly Bill 227 (Gatto) to provide a two-week grace period to address certain alleged violations of failure-to-warn requirements under Proposition 65. In addition to the previously required “60-day” notice, AB 227 mandates that a potential Prop. 65 plaintiff first provide certain potential…
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Supreme Court Finds Federal Law Preempts Agreements Between Trucking Companies and the Port of Los Angeles

Posted by in Environmental Litigation on October 8, 2013

On June 13, 2013, in American Trucking Ass’n, Inc. v. City of Los Angeles, the United States Supreme Court held that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) expressly preempts certain provisions of a  concession agreement (Agreement) that the Port of Los Angeles (Port) requires short-haul (drayage) trucking companies to enter.  The preempted…
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Ninth Circuit Court Holds that Clean Water Act does not Bar Citizen Suit where State had not Commenced an Action “to Require Compliance” with a NPDES Permit

Posted by in Administrative Law, Clean Water Act, Environmental Litigation, Stormwater on August 12, 2013

By Michael Einhorn and Nancy Wilms In California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., Case No. 11-16959 (9th Cir. July 22, 2013), plaintiff California Sportfishing Protection Alliance (“Plaintiff”) alleged that defendants Chico Scrap Metal and its owners (“Defendants”) violated California’s Industrial Activities Storm Water General Permit, a National Pollutant Discharge Elimination System (“NPDES”)…
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Ninth Circuit Holds Wood Preservative from Utility Poles Discharged into the Environment does not Violate the Clean Water Act or RCRA

Posted by in Clean Water Act, Emerging Issues, Resource Conservation and Recovery Act, Stormwater on July 1, 2013

Nancy Wilms and Michael Einhorn In Ecological Rights Foundation v. Pacific Gas and Electric Company, 713 F.3d 502 (9th Cir. April 3, 2013), the Ninth Circuit panel affirmed the dismissal of a citizen suit alleging utility poles discharged wood preservative containing pentachlorophenol (“PCP”) into the environment in violation of the Resource Conservation and Recovery Act…
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Deferred EIR Mitigation Measure Satisfies CEQA

Posted by in CEQA, Environmental Litigation on June 26, 2013

The California Court of Appeals held that an environmental impact report (“EIR”) which identified landscaping as a mitigation measure to the project’s visual impact satisfied the California Environmental Quality Act (“CEQA”).  The Court found that the EIR did not need to set forth the specific landscaping plan that would mitigate the impact.  Instead, the details…
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EPA Releases Draft Vapor Intrusion Guidance

Posted by in Due Diligence, Environmental Legislation and Regulation on May 15, 2013

On April 11, 2013, the EPA released draft final vapor intrusion guidance (“Guidance”) for assessing and mitigating vapor intrusion pathways from subsurface sources to indoor air.  The Guidance presents EPA’s current recommendations for identifying and considering key factors when assessing vapor intrusion, making risk management decisions, and implementing mitigation measures pertaining to this potential human…
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New EPA Policy Re: Bona Fide Prospective Purchaser Benefits for Tenants

Posted by in CERCLA, Due Diligence, Environmental Legislation and Regulation on May 14, 2013

In December 2012, the Environmental Protection Agency (“EPA”) adopted a new policy setting forth the conditions on which the agency will consider providing CERCLA bona fide prospective purchaser (BFPP) protection to tenants who lease formerly or currently contaminated property.  Previously, such protections were only available to purchasers of such property.  Although the EPA will continue…
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Fourth Circuit Holds Zero-Share Apportionment Unavailable to Current Owner or Operator PRPs but Affirms Zero-Share Allocation; Rejects Bona Fide Prospective Purchaser Defense Due to a Failure to Exercise Appropriate Care

Posted by in CERCLA, Environmental Litigation on May 6, 2013

By Michael Einhorn and Tiffany Hedgpeth In PCS Nitrogen Inc. v. Ashley II of Charleston, the Fourth Circuit (“Court”) affirmed the U.S. District Court for the District of South Carolina’s rulings addressing CERCLA liability at a former fertilizer manufacturing site.  In doing so, the court outlined legal standards for multiple CERCLA issues.  Significantly, the Court…
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The Impacts of Sequestration Cuts on EPA Programs

Posted by in Administrative Law, Emerging Issues, NEPA on April 9, 2013

Sequestration budget cuts (“budget cuts”) went into effect on March 1, 2013.  These budget cuts required EPA to cut approximately $425 million from its $8.3 billion annual budget, or about 5%.  In a February 6, 2013 letter, Lisa Jackson, then-Administrator of the U.S. Environmental Protection Agency (“EPA”), identifies to Senator Barbara Mikulski (D-MD) the specific…
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