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Proposed Option for All Appropriate Inquiries to Mitigate Environmental Liabilities in Flux

To avoid the potentially staggering environmental cleanup liabilities under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Oregon cleanup statute, a prospective landowner or tenant must have conducted all appropriate inquiries (“AAI”) into the previous ownership and uses of the property consistent with good commercial or customary practice. Because the Oregon … Continue Reading

In Oregon, Insurers Must Defend Against a CERCLA Information Request

On August 30, 2013, the Ninth Circuit Court of Appeals issued a groundbreaking decision, requiring an insurance company that has issued comprehensive general liability policies to defend a policyholder that has received an information request from the U.S. Environmental Protection Agency (“EPA”) under Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). See … Continue Reading

Oregon Amends Prospective Purchaser Statute

SB 476A is one of few environmental bills that the 2013 legislature passed. The bill amends the prospective purchaser agreement statute (ORS 465.325) in the following ways: (1) Requiring the Oregon Department of Environmental Quality (“DEQ”) to specifically notify potentially responsible parties (“PRPs”), who have previously entered into an agreement with DEQ, of any proposed consent … Continue Reading

New Rights for Policyholders in Oregon

Governor Kitzhaber signed Senate Bill 814 into law last week. This bill substantially amends the Oregon Environmental Cleanup Assistance Act in a manner very favorable to policyholders prosecuting claims seeking insurance coverage for claims arising from environmental contamination. First, the law makes it clear that the anti-assignment language contained in most general liability policies only … Continue Reading

PCS Nitrogen Inc. v. Ashley II of Charleston: Prospective Purchasers Beware

On April 4, 2013, the Fourth Circuit Court of Appeals issued the first appellate decision interpreting the “bona fide prospective purchaser” (“BFPP”) defense. The BFPP defense exempts certain qualified individuals and entities from the stringent federal environmental cleanup liability imposed under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) . . .… Continue Reading

U.S. Supreme Court Gives Landowners Their Day in Court to Challenge Wetland Orders

On March 21, 2012, in Sackett v. EPA, the U.S. Supreme Court (the “Court”) unanimously ruled that an order issued by the U.S. Environmental Protection Agency (“EPA”) against the Sacketts, who had allegedly filled wetlands without a permit, was “final agency action.” This means that the Sacketts can challenge that order in court and dispute that … Continue Reading
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