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Showing 31 posts in Cases to Watch.

The federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), better known as Superfund, provides private parties with two types of claims to recover costs associated with investigating and remediating contaminated sites – a cost recovery claim under CERCLA Section 107(a), 42 U.S.C. § 9607(a), and a contribution claim under Section 113(f), 42 U.S.C. § 9613(f).  A party has a claim for contribution under CERCLA Section 113(f)(3)(B) if that party has “resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.”  A party can therefore settle its liability for a contaminated site with the EPA or a state government, and then seek to recover a portion of the costs of that settlement from other potentially responsible parties who contributed to the contamination at the site.  But, CERCLA imposes a 3-year statute of limitations on Section 113 contribution actions, which begins to run from the date of entry of the administrative or judicially approved settlement.  While at first, this may appear to be a cut-and-dry statute of limitations, there is ample case law exploring the nuances of what it means for a party to have “resolved” its liability with the government such that the 3-year statute of limitations begins to run.  Last month, the United States Courts of Appeals for the Ninth Circuit added to that growing body of case law, in Asarco, LLC v. Atlantic Richfield Co., 866 F.3d 1108 (9th Cir. 2017). Read More »

In a 2-1 decision last week, the Michigan Court of Appeals declined to dismiss a lawsuit against Dow Chemical in connection with dioxin contamination in the soils of the Tittabawassee River flood plain. Henry v. Dow Chemical Co., LC No. 03-047775-NZ (Mich. Ct. App. June 1, 2017).  Affirming the lower court’s denial of Dow’s motion for summary disposition, the Court of Appeals rejected the argument that the plaintiffs’ claims for negligence and nuisance were barred by the applicable statute of limitations even though the public was made aware of potential dioxin contamination in the river from Dow’s operations as early as 1984.  The Court’s analysis, which was accompanied by a dissenting opinion, turned on the fact that Dow failed to support its motion with evidence that the floodplain soils on the plaintiffs’ property were contaminated as far back as the 1980s.  Read More »

Earlier this week, the New Jersey Supreme Court ruled that Spill Act contribution claims against the State of New Jersey for events prior to April 1, 1977 – the date the statute was enacted – are barred by the doctrine of sovereign immunity.  This ruling places the State on an unequal footing with private parties for historic environmental liability under the Spill Act, and in effect, creates an automatic orphan share for pre-1977 sites where the State would otherwise have liability.  Read More »

In the latest development in the ongoing dispute between EQT Production Company (“EQT”) and the Pennsylvania Department of Environmental Protection (“DEP”) over DEP’s calculation of continuing violations of the Clean Streams Law (“CSL”), the Pennsylvania Commonwealth Court held that Section 301 of the CSL prohibits acts or omissions resulting in the initial active discharge or entry of industrial waste into waters of the Commonwealth, and does not authorize ongoing penalties for the continuing presence of that industrial waste in waters of the Commonwealth after its initial entry.  The Commonwealth Court’s decision in this case, EQT Production Co. v. Dept. of Envt’l Prot., No. 485 M.D. 2014 (Jan. 11, 2017), comes over one year after the Pennsylvania Supreme Court decided EQT Production Co. v. Dept. of Envt’l Prot., 130 A.3d 752 (Pa. 2015), which we reported on, holding that EQT may be permitted to challenge DEP’s continuing-violation interpretation in the Commonwealth Court before the Pennsylvania Environmental Hearing Board decides and imposes the ultimate penalty, given the threat of ballooning penalties under DEP’s ongoing-violation interpretation.  Read More »

Earlier this month, for the first time a New Jersey trial court applied the often pled, but seldom effective, laches defense to bar a private-party claim for contribution under the New Jersey Spill Compensation and Control Act (the “Spill Act”).  Laches is an equitable principle that can be used to defend a claim that has become too “stale” by the plaintiff’s unreasonable delay in pursuing the claim, and where the defendant has suffered some harm from the delay.  Laches can bar a claim even if the plaintiff initiates the lawsuit within the applicable statute of limitations, or where no statute of limitations exists – such is the case for private party contribution claims under the Spill Act, which last year the New Jersey Supreme Court affirmed in Morristown Assoc. v. Grant Oil Co., 220 N.J. 360 (2015) are not subject to any statute of limitations.  In light of the Morristown decision, private claims for contribution under the Spill Act could therefore be brought decades after the discovery of contamination at a site.   Read More »

Yesterday, Judge Corbett O’Meara, of the United States District Court for the Eastern District of Michigan, dismissed a proposed class action complaint filed by a group of residents in Flint, Michigan regarding the drinking water contamination crisis against the City of Flint and several City employees, local politicians, Michigan’s Governor Snyder, the Michigan Department of Environmental Quality, and the Michigan Department of Health.  The proposed class action included various state statutory and common law claims, as well as a constitutional claim asserted under 42 U.S.C. § 1983, a civil rights cause of action that allows private parties to recover monetary damages from state and local government entities for deprivation of constitutional rights.  The plaintiffs did not include a Safe Drinking Water Act claim in their complaint, possibly as a tactical maneuver, since the sole remedy available in a citizen suit filed under the Safe Drinking Water Act is injunctive relief, rather than monetary damages which are available for a § 1983 constitutional claim.   Read More »

To close out 2015, the Pennsylvania Supreme Court issued several opinions last week, including one that may potentially impact how parties challenge penalties assessed by the Pennsylvania Department of Environmental Protection (“DEP”) for violation of state environmental laws.  The case, EQT Production Co. v. Dept. of Envt’l Prot., No. J-67-2015 (Dec. 29, 2015), involves a challenge by EQT, a natural gas fracking operator, to civil penalties levied by DEP for contamination caused by a leaking fracking water impoundment.  EQT had already commenced a formal cleanup under Pennsylvania’s “Act 2” voluntary remediation program when DEP issued a civil penalty settlement demand under Pennsylvania’s Clean Streams Law for over $1.27 million, $900,000 of which was tied to ongoing violations.  DEP took the position that each day the contamination remained in the soil and/or entered groundwater or surface water constituted a continuing violation subject to additional penalties.  EQT disagreed and argued that under the Clean Streams Law, penalties could not exceed those that accrued during the time that contamination was actually being discharged into the environment.  The operator also argued that the Act 2 program governed their remediation efforts to address the contamination that remained at the site.   Read More »

Early this month, the Second Circuit heard oral argument in Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States EPA, No. 14-1823, an appeal from the Southern District of New York’s March 2014 ruling which invalidated the “water transfer” exemption rule from National Pollutant Discharge Elimination System (“NPDES”) permitting requirements.  A decision from the Second Circuit, which will have far reaching effects on public and private entities alike, is expected in 2016. Read More »

Another opinion was issued yesterday in the Morristown Associates v. Grant Oil Co. case, Dkt. No. A-0313-11T3 (N.J. App. Div., Nov. 17, 2015), a case which became famous earlier this year when the New Jersey Supreme Court held that there is no statute of limitations for private-party contribution claims under the New Jersey Spill Act. After the case was remanded following the New Jersey Supreme Court’s decision, the Appellate Division had to address several issues that the parties had appealed, but were deemed moot when the Appellate Division previously dismissed the case on statute of limitations grounds.  Read More »

The New Jersey Superior Court Appellate Division recently confirmed that the New Jersey Spill Act applies retroactively and abrogates the State of New Jersey’s sovereign immunity for contribution to contamination.  The case, NL Industries, Inc. v. State, Dkt. No. L-1296-14 (Law Div., Middlesex Cnty., August 27, 2014), affd. Dkt. No. A-0869-1413, (App. Div., Aug. 26, 2015), deals with the remediation of contamination related to the historic construction of a sea wall and jetty in the Laurence Harbor section of Old Bridge Township.  The sea wall and jetty are part of the Raritan Bay Superfund site, which was placed on the National Priorities List in November 2009 after EPA detected elevated levels of lead and heavy metals in the soil, beach, sand, and sediments surrounding the Bay.  In January 2014, the EPA issued a unilateral administrative order to NL Industries, the manufacturer of lead and other heavy metal slags that were used to construct the sea wall, to clean up the contamination, which is anticipated to cost in excess of $75 million.   Read More »