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Toxic Torts Updates

Read Toxic Torts news, alerts, and legal commentary from leading lawyers and law firms:

News & Analysis as of May 23, 2013

Foley & Lardner LLP

USEPA’s PCB Bulk Product Waste Reinterpretation – 40 CFR Part 761

by Foley & Lardner LLP on 5/23/2013

PCBs were domestically manufactured from 1929 until their manufacture was banned in the United States in 1979. Due to their non-flammability, chemical stability, high boiling point, and electrical insulating properties, PCBs...more

Foley Hoag LLP - Environmental Law

Do Liability Policies, Particularly Pollution Liability Insurance Policies, Exclude Coverage for All Injunctions? The Fifth...

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 5/22/2013

The Fifth Circuit handed down an important decision last week, Louisiana Generating LLC v. Illinois Union Insurance Company, clarifying the scope of coverage under a Premises Pollution Liability Insurance Policy. The...more

Timothy Durken

Historical Tort System Claim Values Cannot Be Reduced By "Nuisance" Settlements and "Implicit Defense Costs" To Determine Present...

by Timothy Durken on 5/22/2013

Delaware Bankruptcy Judge Judith Fitzgerald in the bankruptcies of Specialty Products Holding Corp. (a/k/a RPM, Inc.) and Bondex International, Inc. rejected the Debtors’ “novel” claim estimation approach that reduced from...more

Barasch McGarry Salzman & Penson PC

New Research Points to Greater Cancer Risk For 9/11 Responders

by Michael Barasch | Barasch McGarry Salzman & Penson PC on 5/22/2013

We have talked extensively about the risk to workers and others exposed to environmental hazards at Ground Zero. A new study reflects the message of earlier research initiatives — exposure to carcinogenic materials during...more

Foley Hoag LLP - Environmental Law

Why Trial Courts Are Reluctant To Exclude Scientific Evidence in Toxic Tort Cases

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 5/21/2013

Environmental litigation, particularly toxic tort litigation, inevitably turns on scientific evidence about causation. Beginning with the Supreme Court’s Daubert decision in 1993, trial courts have repeatedly been admonished...more

Barger & Wolen

Defense Cost Analysis in Complex Environmental Fee Claims

by David J. McMahon | Barger & Wolen on 5/21/2013

Introduction - Many of our litigation management audits involve complex environmental cleanup cases. In these cases, it is important to first evaluate the underlying matter, including the fact patterns of the various...more

Yaeger, Jungbauer, & Barczak

Arkansas Oil Spill Not Deadly, Yet

by Yaeger, Jungbauer, & Barczak on 5/20/2013

Long-term effects of oil spills remain uncertain, with studies working to provide some answers to the exact health hazards such toxic accidents cause. The recent ExxonMobil Pegasus pipeline spill in Arkansas may provide more...more

Proskauer Rose LLP

California Governor Proposes Reforms to Proposition 65, Seeks To Prevent Abuse of Statute by "Unscrupulous Lawyers"

by Nancy Sher Cohen, Shawn Ledingham, Jr, Gail Port | Proskauer Rose LLP on 5/14/2013

California Governor Edmund Brown has added his voice to a number of California legislators calling for an overhaul of the state's Safe Drinking Water and Toxic Enforcement Act of 1986 – better known as Proposition 65 (the...more

Foley Hoag LLP - Environmental Law

Superfund Liability for the Repair of a Useful Product

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 5/14/2013

A few months ago, I blogged on the decision in Duke Energy Progress Inc. v. Alcan Aluminum Corporation where a court held that a company would not be held liable for selling used transformers to a recycling facility for...more

BakerHostetler

Vapor Intrusion Developments

by Martin Booher, Maureen Brennan | BakerHostetler on 5/13/2013

Potential buyers and sellers take note — on April 16, 2013, the U.S. Environmental Protection Agency (U.S. EPA) issued draft guidance that would require more evaluation of "vapor intrusion" (migration of any hazardous vapors...more

Osler, Hoskin & Harcourt LLP

Appeal Court Confirms That Innocent Party Must Clean Up Pollution

by Jack Coop, Jennifer Fairfax, Daniel Kirby, Paul Morassutti, Lindsay Rauccio, Patrick Welsh | Osler, Hoskin & Harcourt LLP on 5/13/2013

In a decision in Kawartha Lakes (City) v. Ontario (Environment), on May 10, 2013, the Ontario Court of Appeal unanimously dismissed the appeal of the City of Kawartha Lakes (the City), which sought to overturn a decision of...more

McNees Wallace & Nurick LLC

Is That Covered? Tanker Fire

by Michael R. Kelley | McNees Wallace & Nurick LLC on 5/13/2013

On May 9, 2013, a tanker truck carrying thousands of gallons of diesel fuel, overturned and caught on fire on a ramp near Interstate 81 and route 322 in Harrisburg....more

Davis Wright Tremaine LLP

Ashley II Holdings Require Caution

by Larry Burke | Davis Wright Tremaine LLP on 5/13/2013

On April 4, 2013, the Fourth Circuit Court of Appeals issued a much anticipated decision in PCS Nitrogen, Inc. v. Ashley II of Charleston LLC, No. 11-1662 (4th Cir. April 4, 2013) (Ashley II). ...more

Cozen O'Connor

Senate Bill 814 Proposes Sweeping and Retroactive Changes to Environmental Claims Handling in Oregon

by Molly Eckman | Cozen O'Connor on 5/8/2013

On March 13, 2013, the Oregon legislature introduced Senate Bill 814 to create sweeping reforms on environmental claims handling regulations and available remedies for insureds facing liability for cleanup of contaminated...more

Manatt, Phelps & Phillips, LLP

Insurance Recovery Law -- May 01, 2013

by Manatt, Phelps & Phillips, LLP on 5/2/2013

Insurers Had Duty to Defend Regardless of Whether Allegations in Underlying Cases Are True or False, Says Illinois Court - On April 12, 2013, an Illinois trial court ordered that Travelers Casualty & Surety Company,...more

Saul Ewing LLP

Bad Faith Sentinel - April 2013

by Gregory M. Boucher, Carolyn Due, Matthew M. Haar, Joseph C. Monahan, Amy L. Piccola, Thomas S. Schaufelberger | Saul Ewing LLP on 5/1/2013

In This Issue: - Western District Of Washington: Denial of a Defense Where Additional-Insured Status Was Arguable, and Doing So in Reliance on Extrinsic Evidence, Were Both Acts of Bad Faith - New York Court...more

Looper Reed & McGraw, P.C.

Mistakes Have Consequences – British Petroleum’s Settlement

by Cleve Clinton | Looper Reed & McGraw, P.C. on 4/30/2013

Three years ago, Tilting told tales of oil spill legal problems suffered by Forrest Gump, Bubba Gump Shrimp Company, Wok Ann chu-gumm Seafood Restaurants, Chef Red Fishy and Bishop Carp. Tilting predicted class action...more

Burr & Forman

BP Unable To Block Oil Spill Claim Payments

by John Schifino | Burr & Forman on 4/29/2013

On March 15, 2013, BP asked United States District Court Judge Carl Barbier, Jr. to block the Deepwater Horizon claims administrator from awarding “business economic losses” that BP contends are “fictitious” claims for...more

Polsinelli

Missouri To Pilot Reforms To Corrective Action Clean-Up Program

by Adam Troutwine | Polsinelli on 4/29/2013

Businesses involved in clean-up of environmentally contaminated sites often face a time-consuming and expensive process. The Missouri Department of Natural Resources and the Environmental Protection Agency will pilot reforms...more

Foley Hoag LLP - Environmental Law

What Response Costs Are Necessary Under CERCLA

by Robert S. Sanoff | Foley Hoag LLP - Environmental Law on 4/24/2013

In a post last year, I discussed what I I thought was the dubious dismissal of a CERCLA cost recovery action in Stratford Holding, LLC v. Fog Cap Retail Investors LLC. ...more

Farella Braun + Martel LLP

EPA Issues Long-Awaited Vapor Intrusion Guidance for Public Comment

by John Gregory | Farella Braun + Martel LLP on 4/23/2013

More than ten years after issuing draft guidance regarding the increasingly significant subject of vapor intrusion (VI), the U.S. Environmental Protection Agency (EPA) has just released for public comment drafts of two...more

Schmidt & Clark, LLP

Lawsuits Investigated for Victims of West, Texas Fertilizer Plant Explosion

by Schmidt & Clark, LLP on 4/23/2013

On Wednesday, April 17, 2013, at approximately 7:30 p.m., a fire alarm was sounded at the West Fertilizer Company in the small community of West, Texas. While firefighters worked to put out the blaze, police and paramedics...more

Bennett Jones LLP

Abolishment of Limitation Periods for Contaminated Sites in BC Put on Hold

by Wally Braul, Laura Gill, Michael Theroux | Bennett Jones LLP on 4/23/2013

In 2012, the government of B.C. passed legislation that would eliminate any limitation period previously applicable to actions to recover the costs of environmental remediation under the Environmental Management Act, S.B.C....more

Manatt, Phelps & Phillips, LLP

Insurance Recovery Law -- Apr 18, 2013

by Manatt, Phelps & Phillips, LLP on 4/19/2013

Ninth Circuit Narrows Insurers' Options in Pursuing Subrogation Claims Under CERCLA - Why it matters: The Ninth Circuit confirmed that Chubb could have maintained a subrogation action against potentially liable parties...more

K&L Gates LLP

Fourth Circuit Restricts “Bona Fide Prospective Purchaser” Defense

by William Cleveland, IV, Perrin Dargan, III, David Franchina | K&L Gates LLP on 4/19/2013

On April 4, 2013, the Fourth Circuit issued a ruling in PCS Nitrogen Inc. v. Ashley II of Charleston that, among other things, may limit the availability of the “bona fide prospective purchaser” (“BFPP”) defense that Congress...more

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