Editor’s Note: This issue marks another ABA anniversary of “In Brief,” Ted Garrett’s invaluable summary of key cases for SEER members. Ted has served as editor of “In Brief” since 1991 and was a contributor to the column’s predecessor, “Briefly Stated,” between 1986 and 1991. Ted’s service as a contributing editor to Trends is impressive in its continuity over these many years. More importantly, however, Ted’s contribution is quality at its highest level; “In Brief” delivers timely case updates with readable succinct summaries useful to all Section members. “In Brief” was one of the reasons I started reading Trends on a regular basis, and it is one of the reasons that keep many of us reading it today. The Section leadership, other board members of Trends, and the ABA publications staff, thank Ted for his superb work and hope that he will continue for many more years to come.
The Fourth Circuit upheld a district court decision that a company was not exempt from Superfund liability as a bona fide prospective purchaser (BFPP). PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F. 3d 161 (4th Cir. 2013). The company’s failure to clean out and fill in sumps demonstrated that the company did not take reasonable steps to prevent a future release. The court was not persuaded by the argument that holding companies liable for minor mistakes would be contrary to the intent of Congress to promote brownfields development, stating: “Logic seems to suggest that the standard of ‘appropriate care’ required of a BFPP, who by definition knew of the presence of hazardous substances at a facility, should be higher than the standard of ‘due care’ required of an innocent landowner, who by definition ‘did not know and had no reason to know’ of the presence of hazardous substances when it acquired a facility.” The Fourth Circuit also affirmed the district court’s denial of apportionment.