Environmental Toxic Torts

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PRP in CERCLA Enforcement Action Saves Millions of Dollars with Successful Divisibility Defense

Action Item: On March 15, 2015, the United States District Court for the Eastern District of Wisconsin in United States v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015), held that a potentially responsible party (“PRP”) at...more

Court at the Fox River Site Opens Door to Superfund Divisibility

On May 19, a district court ruled that a company had established divisibility for its liability at a major downstream segment of the Fox River mega-site in Wisconsin, capping its liability for that segment at 28%. This same...more

Is the Shrinking Availability of Joint And Several Liability In Superfund Cases A Good Thing?

Although it has taken a surprisingly long time, the holding in Burlington Northern which greatly lowered the standard for apportionment in Superfund cases is finally being embraced by lower courts. Last fall I blogged about...more

Reported Relationship Between Indoor Radon Concentrations and Unconventional Marcellus Shale Drilling Must Be Interpreted With...

Johns Hopkins researchers recently published a paper titled, "Predictors of Indoor Radon Concentrations in Pennsylvania, 1989-2013," in Environmental Health Perspectives. The study reported the results of a mathematical...more

FERC Issues Policy Statement Regarding Pipeline Modernization Surcharges

On April 16, 2015, the Federal Energy Regulatory Commission (FERC) issued a Policy Statement regarding Cost Recovery Mechanisms for Modernization of Natural Gas Facilities (Docket No. PL15-1-000). The Policy Statement affords...more

TSCA Reform: House Subcommittee Holds Markup of Revised Draft TSCA Bill and Passes Amended Draft

On May 14, 2015, the House Energy and Commerce Subcommittee on Environment and the Economy held a markup of a revised discussion draft of the TSCA Modernization Act of 2015, prepared by Subcommittee Chair John Shimkus (R-IL)...more

Ninth Circuit Strictly Construes “Single Local Event” Exception to CAFA Jurisdiction for Mass Actions

In a recent decision, the Ninth Circuit Court of Appeals strictly construed the “single local event” exception to federal jurisdiction under CAFA as not encompassing “events or occurrences” that are of a continuing...more

Are Concurrent CERCLA Claims For Section 107(a) Cost Recovery and Section 113(f) Contribution Permissible?

Given the uncertainties after Cooper Industries v. Aviall about what cause of action a PRP has for recovering response costs under CERCLA, many parties take the prudent course of pleading claims under both for cost recovery...more

Is There Any End to Post-Closure Care Under RCRA?

Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA. It’s not good news. ...more

California Federal Court Dismisses Medical Monitoring Claims for Lack of Plausible Cancer Risk

In a significant victory for defendants facing toxic tort exposure claims, a California federal court dismissed a medical monitoring putative class action brought by drinkers of certain Pepsi products because Plaintiffs...more

Louisiana Court Rules that Migration of Chemicals from Spill Not a “Continuing Tort”

In a case that may make it more difficult for plaintiffs to maintain years-old toxic tort cases in Louisiana, a state appellate court ruled that a 1983 chemical spill did not constitute a “continuing tort.” ...more

Far-Reaching Information Request on Nanoscale Chemical Substances Proposed by EPA

For the first time, and after multi-year negotiations with, and review by, the Office of Management and Budget, the U.S. Environmental Protection Agency is proposing to use its authority under the federal Toxic Substances...more

PCB Cleanup Suit Declared Time-Barred

A Connecticut federal judge recently dismissed a suit seeking to hold Monsanto and others responsible for the cleanup of polychlorinated biphenyls (“PCBs”) released from paint, finding that the plaintiff filed its suit after...more

Municipalities Lose First Round in Bid to Hold PCB Manufacturers Liable For Environmental Impacts

Two Massachusetts municipalities are down but not out in their attempts to hold manufacturers of PCBs responsible for the environmental effects of PCB-containing products decades later. ...more

Proposed California Bill Seeks to (Finally) Define “Knowing and Intentional” Element of Proposition 65

On February 23, 2015, Assemblyman Bill Quirk (D-Hayward) introduced legislation that would definitively define the term “knowing and intentional” that is contained in the actual text of Proposition 65 (Prop 65). There has...more

No Statute of Limitations for Private Contribution Claims Under New Jersey’s Spill Act

Selling a piece of commercial property often requires much negotiation and planning, and generally represents the culmination of a result of a well-reasoned business decision. And at the conclusion of the deal—and depending...more

Non-Settling CERCLA Defendants Beware: Ninth Circuit Provides Lower Courts with Discretion to Allocate Liability Using Equitable...

There is a split of authority on how credits for settlements under the Comprehensive Response, Compensation and Liability Act (“CERCLA”) are allocated to non-settlors. Some courts have applied the proportionate share...more

Environmental Indemnities

It is not often that one discovers that a senior housing facility was once an oil exploration complex or the site of a former dry cleaner but it does happen, and while your company may get comfortable with the acquisition and...more

Ninth Circuit Widens Judges’ Discretion to Allocate CERCLA Contribution Damages

Trial court may select the method of accounting for prior settlement in allocating response costs among liable parties, but claims to recover settlement payments are limited to costs consistent with the National Contingency...more

Allocating The Liability Shares of Settling PRPs Under CERCLA

Allocation of liability under CERCLA can get messy. One particularly complex issue arises in a private cost recovery action where some but not all the PRPs have settled with the private party. In contrast to a government...more

Divided Court Affirms Summary Judgment in CERCLA “Arranger” Case

The decision sets a high bar for proving intent to dispose of hazardous substances and may make it easier for a party alleged to be liable as an arranger under CERCLA to secure summary judgment. ...more

Dividing CERCLA Site Just Won't Cut It On Liability

In an order on March 3, U.S. District Judge William C. Griesbach, who is presiding over the long-running Comprehensive Environmental Response, Compensation, and Liability Act litigation concerning the Lower Fox River and...more

Fourth Circuit Continues Trend toward Narrowing Scope of CERCLA Arranger Liability

Action Item: With federal courts moving toward limiting arranger liability under CERCLA, companies that sell new or used products containing hazardous substances should heed the guidance of those courts and take certain...more

Is Injunctive Relief Available Against Former Owners? At Least One Judge Thinks So.

As we noted in 2013, two different Courts of Appeal had ruled that injunctive relief is not available in PSD/NSR enforcement cases against former owners. Both United States v. Midwest Generation and United States v. EME...more

An Introductory Guide to Rev 973 v. Mouren-Laurens Et Al

Loeb & Loeb LLP represents a group of approximately 45 potentially responsible parties (PRPs) in the Rev 973 litigation, though the number is constantly changing as additional parties join the group. The following is an...more

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