Toxic Torts Updates

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The Expanding Availability of Apportionment To Limit Liability in Superfund Cases

In Burlington Northern in 2008, the US Supreme Court ruled that Superfund liability could be apportioned whenever there was a reasonable basis for showing that the harm was divisible, such as by considering the length of time...more

Boxer Criticism On Current TSCA Reform Efforts

On September 18, 2014, Senate Committee on Environment and Public Works (EPW) Chair Senator Barbara Boxer (D-CA) issued a statement containing links to Senator Boxer's counterproposal to and critique of the Toxic Substances...more

California Governor Signs Bill Regulating Oil by Rail

On September 25, 2014, California Governor Jerry Brown signed legislation that will provide California’s emergency responders with more information about trains carrying crude oil and require railroad companies to provide...more

The Class Action Chronicle - Fall 2014

This is the fifth edition of The Class Action Chronicle, a quarterly publication that provides an analysis of recent class action trends, along with a summary of class certification and Class Action Fairness Act rulings...more

Summary of Changes in the Chemical Safety Improvement Act (CSIA, S. 1009) and the Boxer TSCA Version Released September 2014

This analysis reviews the changes made to the original version of the Chemical Safety Improvement Act (CSIA) (identified as CSIA1 in this memorandum) based on Senator Barbara Boxer's (D-CA) version of the Toxic Substances...more

Texas Supreme Court oral arguments (9/14)

No. 12-0803 -- Texas Dep't of Aging & Disability Servs. v. Cannon -- The plaintiff brought a wrongful-death case against the department and department employees. The department moved to dismiss the employees, arguing that...more

Deepwater Horizon ruling puts focus on prevention

Last week’s decision by District Judge Carl Barbier exposes the UK-headquartered energy giant to up to $18bn in fines for the 2010 drillship incident because, under the same US laws that cover tanker spills, civil penalties...more

Aboveground Storage Tank Act Interpretive Rule

This morning, the West Virginia Department of Environmental Protection (“DEP”) filed a proposed interpretive rule (the “Interpretive Rule”) with the West Virginia Secretary of State’s office implementing, in part, the recent...more

Continuing Litigation Over Titanium Dioxide in Sunscreen and Cosmetics Underscores Importance of Exposure Assessments in...

In an ongoing Proposition 65 litigation brought in late 2013 by the Public Interest Alliance (PIA) targeting more than 100 sun-protection and powder-cosmetics manufacturers, plaintiff claims defendants’ products expose...more

PHMSA Proposes Regulations Claimed to Make Business Easier for Retailers and Transporters and Finalizes a Regulation that Could...

The Pipeline and Hazardous Materials Safety Administration (PHMSA) recently published two proposed regulations that may positively affect retailers and transporters, if implemented as proposed. In addition, PHMSA finalized a...more

MN PUC Affirms Path of Contentious Litigation for Externalities Value Determination

The MN PUC held a hearing on September 4, 2014, to address the impending investigation of social costs of pollutants under Minn. Stat. § 216B.2422 subd. 3 (known as externalities values). First established in the late 1990s,...more

Chance Of 2014 TSCA Reform Shrinking Fast

Stakeholders agree that the chances of legislative reform to the Toxic Substances Control Act (TSCA) are small -- and getting smaller as the days progress. Both Hill staff and industry trade representatives acknowledge that...more

Responsible Mercury Management Post-MEBA

Several domestic industries have historically produced elemental mercury as either a main product or a byproduct of their operations. This mercury has typically been sold to third parties that have utilized it in the...more

NPDES Permits Are Construed Narrowly Against the Permittee

In July, we noted that the Clean Water Act’s permit shield defense would be construed narrowly, applying only where a permittee had clearly disclosed that the relevant pollutant to the agency. This week, in Alaska Community...more

No Need To Wait For NJDEP’s Approval When Seeking Contribution For Site Cleanups

Parties that find themselves responsible for the remediation of contaminated property in New Jersey do not have to wait for the New Jersey Department of Environmental Protection (“NJDEP”) to approve a final cleanup plan...more

In re Paulsboro Derailment Cases: Putting the Brakes on Defendants’ Momentum Regarding Recent Ascertainability Developments Within...

In a recent unpublished decision, Judge Robert B. Kugler of the United States District Court for the District of New Jersey addressed the rapidly developing “ascertainability” requirement in class action litigation within the...more

Georgia-Pacific Consumer Products, LP v. Ratner et al.: Proving Commonality in Class Certification Cases Post-Wal-Mart v. Dukes

After the U.S. Supreme Court’s decision in Wal-Mart Stores Inc. v. Dukes, 131 S.Ct. 2541 (2011) — which heightened requirements for plaintiffs seeking class certification — at least two courts reviewing toxic-tort issues have...more

EPA's Concern Over TCE Vapor Intrusion Is Misguided

On July 9, 2014, the Director of the U.S. Environmental Protection Agency's Superfund Division in Region 9 issued a memo to staff setting an “operational framework” to address “inhalation exposures [to trichloroethylene] in...more

CERCLA’s Three Year Statute of Limitations for Contribution Applies To Non-CERCLA Settlements

Parties which settle environmental liability in a judicially approved settlement have three years from the date of that settlement in which to seek contribution even if the settlement is not a CERCLA settlement. That is the...more

The Wait Is Over: Liable Parties Can Now Seek Early Contribution Claims Without New Jersey Department of Environmental Protection...

The recent Supreme Court of New Jersey ruling in Magic Petroleum v. Exxon Mobil demonstrates a trial court’s ability to allocate liability to “dischargers” while maintaining the role of the state’s Department of...more

Not So Fast: New York’s High Court Relieves Pressure on Liability Carriers to Disclaim Coverage “As Soon As Possible”

Under a New York statute, a liability insurer that denies coverage for a death or bodily injury claim must provide written notice of its decision “as soon as is reasonably possible.” Last year, in Long Island Lighting Co. v....more

Federal Court Determines Low Levels of Carcinogens PCE and TCE Insufficient to Establish Private RCRA Cause of Action Absent...

Further underscoring the importance of expert testimony to support environmental claims, the United States District Court for the District of New Jersey in Leese v. Lockheed Martin Corp., et al., No. 11-5091 (JBS/AMD), 2014...more

Importance of Judicial Approval of CERCLA Settlements

Before a Superfund settlement becomes enforceable, it must be reviewed by a federal court to confirm that it is fair, reasonable, and consistent with CERCLA’s objectives. This judicial review is at the heart of CERCLA’s...more

Grant Recipients Likely to Accept a 50 Percent Share of Cleanup Costs Under New Washington Grant Funding Rule

The new Department of Ecology (Ecology) grant funding rules, which are expected to go into effect in September 2014, will change the way grant recipients resolve contribution claims against other liable parties under the...more

How Much Deference Do States Get in Entering CERCLA Consent Decrees? Probably A Lot, But Perhaps Not As Much as You Thought

In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA...more

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