Environmental Toxic Torts

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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

RCRA Is a Mess

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and...more

Expert Testimony May Be Required To Establish CERCLA Innocent Landowner Defense

On January 20, 2015, the United States District Court for the Eastern District of California in Coppola v. Smith, 2015 U.S. Dist. LEXIS 5127, addressed the application of CERCLA’s innocent landowner defense against a somewhat...more

EU Court limits the scope of environmental liability for new owners of polluted land

The Court of Justice of the European Union (the “CJEU”) has shed light on the application of the “polluter pays” principle in the context of the EU’s Environmental Liability Directive. The judgment, handed down on 4 March...more

Scanning The Post-Burlington Northern CERCLA Landscape

Since the U.S. Supreme Court issued its landmark decision in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009), holding that a party must “take intentional steps to dispose of a hazardous...more

Insurance Recovery Law - February 2015 #2

Separate Contract Serves to Limit Insurance Coverage for Deepwater Horizon Spill, Texas Supreme Court Rules - Why it matters: The Texas Supreme Court rejected BP’s $750 million claim for coverage under Transocean...more

Proposed Assembly Bill 356 Would Require Additional Groundwater Monitoring by Oil & Gas Operators

California Assemblymember Das Williams (D-Carpinteria) has introduced an oil and gas bill to ensure that the state comes into compliance with the Class II underground injection (“UIC”) requirements under the federal Safe...more

CERCLA’s Confusion Between Section 107 and Section 113

Over a decade after the Supreme Court’s decision in Cooper Industries v. Aviall, the divide between CERCLA Section 107 cost recovery claims and Section 113 contribution claims remains unsettled. PRPs incurring response costs...more

Wrap-Up of Federal and State Chemical Regulatory Developments, February, 2015

EPA OEI Office Announces Transfer Of TRI Program To OPPT: On January 22, 2015, U.S. Environmental Protection Agency (EPA) Office of Environmental Information (OEI) announced that EPA has begun the process of transferring the...more

Missouri Federal Court Cuts Claims in Pipeline Property Damage Action

Underscoring the need for plaintiffs to show concrete proof of harm in suits alleging property damage, a federal district court dismissed a suit alleging that an oil pipeline contaminated farmland in Missouri. See Henke v....more

Federal Court Holds That “Each and Every Exposure” Theory is Inadmissible

The “single fiber” theory, well known to asbestos litigants and practitioners, is an attempt to circumvent “substantial factor” causation requirements, positing that any exposure to asbestos constitutes an underlying cause of...more

U.S. District Court in Pennsylvania Dismisses Majority of Water Well Contamination Claims Against Oil Drilling Company

Earlier this month, U.S. District Judge John E. Jones III in the Middle District of Pennsylvania completely adopted the “extremely thorough, well-reasoned” recommendations of a U.S. Magistrate Judge and dismissed almost all...more

Eleventh Circuit Reinstates Groundwater Contamination Case Dismissed on Lone Pine Order

In a case that may provide some plaintiffs with protection from early Lone Pine orders, the Eleventh Circuit reversed a trial court’s dismissal of a groundwater contamination case for failure to sufficiently state claims...more

North Carolina’s Amended Repose Law Fails to Save Barred Toxic Tort Claim

Notwithstanding the intent of the North Carolina legislature, a federal court ruled that the state’s recently amended law exempting groundwater contamination suits from a 10-year statute of repose did not save a latent toxic...more

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