Environmental Toxic Torts

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EPA Releases Draft Assessment of Potential Hydraulic Fracturing Impacts on Drinking Water Resources

On June 4, 2015, the U.S. Environmental Protection Agency (EPA) released a draft of its highly anticipated study, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (the...more

Alameda Drug Disposal Ordinance: Supreme Court Denies Petition for Writ

The United States Supreme Court has declined to hear a challenge to the Alameda County Drug Disposal Ordinance (“Ordinance”) brought by three pharmaceutical trade organizations. The Court’s decision leaves in force the Ninth...more

B.C. Court Awards Remediation Costs Before They Are Incurred

The recent decision of the British Columbia Supreme Court (Court) in Dolinsky v. Wingfield may allow those who have to clean up contamination on their lands to obtain those costs from the responsible parties before actually...more

PRPs May Want To Dig In With Divisibility Defense

In a victory for potentially responsible parties at multiparty contamination sites, a federal district court in U.S. v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015), held a PRP established that environmental harm at a...more

California Environmental Law & Policy Update - May 2015 #4

Environmental and Policy Focus - Crews struggle to clean up oil spill near Santa Barbara: KQED - May 21: Crews will begin excavating the 24-inch pipeline that ruptured Tuesday, unleashing a flow of crude oil that has...more

A $6 Million Reminder to Observe Corporate Formalities: Environmental Prosecutors Pierce Another Corporate Veil with Ohio Decision

With ever-growing concern about environmental liability exposures, many shareholders rely on corporate structures – both simple and complex – to help insulate themselves from direct responsibility for the acts and omissions...more

District Court Imposes Divisibility Cap on Superfund Liability

A Wisconsin district court has ruled that NCR Corporation’s liability for contamination in the Fox River is limited to NCR’s share of contamination contributed to the river....more

Part 3 Of Biofuels Digest Series On TSCA And The Bioeconomy

Part 3 of Biofuels Digest's "Thought Leadership" series highlighting some of the ways the Toxic Substances Control Act (TSCA) applies to biobased products was published May 18, 2015. Summaries of the first two "TSCA and the...more

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

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