On January 15, 2020, Judge Gerald J. Pappert of the Eastern District of Pennsylvania dismissed two groups of private plaintiffs’ claims against the United States Navy regarding perfluorocarbon contamination, PFOS and PFOA, in drinking water supplies around former Navy facilities in Bucks and Montgomery Counties, Pennsylvania. Giovanni v. U.S. Dept. of Navy, No. 16-4873, 17-765, -- F.Supp.3d --, 2020 WL 224683 (E.D. Pa. Jan. 15, 2020). Read More »

Share | Email| Comments|  Topics: Cancer, CERCLA, Class Actions, Contamination, Damages, HSCA, Medical Monitoring, Pennsylvania, PFAS, Superfund, Third Circuit, Toxic Torts

Under the Clean Water Act (CWA), a TMDL establishes the maximum amount of each pollutant that an impaired water segment can receive while still meeting identified water quality standards. After EPA receives a proposed TMDL from the state, it has a non-discretionary duty to either “approve or disapprove” the TMDL. See 33 U.S.C. § 1313(d)(2). If EPA approves the TMDL, it becomes effective. If EPA disapproves the TMDL, it must produce and issue its own TMDL within thirty days. Just before the close of 2019, the Ninth Circuit affirmed the decision of the District Court for the Western District of Washington to compel the Environmental Protection Agency (EPA) to issue a temperature total maximum daily load (TMDL) for the Columbia and Snake Rivers. Columbia Riverkeeper v. Wheeler, No. 18-35982 (9th Cir., Dec. 20, 2019). At issue in the litigation was whether the “constructive submission doctrine” applied when Washington and Oregon failed to submit required temperature TMDLs and whether that failure triggered a non-discretionary duty for EPA to issue the TMDL itself. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Ninth Circuit, TMDL, Water

On December 17, 2019, the Honorable Judge Charles F. Lettow of the United States Court of Federal Claims, issued a 46-page opinion finding the federal government liable for taking a flowage easement on private properties within the Addicks and Barker Reservoirs and upstream of the Addicks and Barker Dams—two federal flood control projects along the gulf coast in Texas.  In re Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, No. 17-9001L, slip op. (Fed. Cl. Dec. 17, 2019).  The decision is the first step for upstream property owners hoping to recover damages for severe flooding caused by Tropical Storm Harvey over two years ago. Read More »

Share | Email| Comments|  Topics: Army Corps, Flooding, Takings, Takings Clause

The adage “you can’t put the toothpaste back in the tube” has manifested itself in two recent federal court decisions. Under separate theories, both the Second Circuit and the District Court of the District of Columbia have issued decisions that highlight the difficulty environmental groups faced in challenging energy infrastructure projects that have been completed during the course of litigation. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Citizen Suit, D.C. Circuit, Energy, Marcellus Shale, NEPA, New York, NPDES, Oil and Gas, Pipelines, Second Circuit

Sometimes a movie can solve one mystery but hold off answering others, leaving viewers eager for the sequel. Legal opinions can be the same, as is the Third Circuit’s opinion in Cranbury Brick Yard, LLC v. United States, No. 18-3287 (3^rd Cir. Nov. 22, 2019). After holding that the limitations period for a contribution action accrues from the date of entry into a non-judicial settlement and order on consent, the Court then sidesteps the issue of exactly what limitations period applies. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Federal Tort Claims Act, New Jersey, Remediation, Statute of Limitations, Superfund, Third Circuit

Thanks to amendments to the New Jersey Spill Act in the summer of 2019, and the superior court, appellate division’s recent decision in NJDEP v. Alsol Corporation, No. A-3546-17T1, -- A.3d --, 2019 WL 5947024 (N.J. Super. App. Nov. 13, 2019), NJDEP has clear jurisdiction to bring civil penalty actions in municipal court for violations of the Spill Act.  Among the summer 2019 amendments to the New Jersey Spill Act was the addition of an explanatory sentence at the end of N.J.S.A. 58:10-23.11u(d), the statutory section providing jurisdiction for NJDEP’s issuance of civil penalties in superior or municipal court, as shown by the underlining below. Read More »

Share | Email| Comments|  Topics: Spill Act

Relying on Texas caselaw, the Fifth Circuit, in Gao v. Blue Ridge Landfill TX, L.P., No. 19-40062 (5^th Cir. Oct. 30, 2019), affirmed a district court decision which held that homeowners who moved near a preexisting landfill were subject to a two-year statute of limitations to bring suit based on odors emanating from the landfill. The case, while reliant on state law, nonetheless suggests that such claims that sound in nuisance need to be brought quickly, and that even a change in operations or uptick in odor complaints may be insufficient to reset the clock on the viability of claims. Read More »

Share | Email| Comments|  Topics: Air, Fifth Circuit, Landfill, Nuisance, Odors, Statute of Limitations, Texas, Waste

Last week the Supreme Court of Montana held that there is no implied private right of action for judicial enforcement under the Montana Water Use Act (Act).  In Lyman Creek, LLC v. City of Bozeman, DA 19-0112 (Mont. 2019), the Court determined that the Act reserves the right of enforcement only for the Montana Department of Natural Resources and Conservation (DNRC), the attorney general, and the county attorneys. Read More »

Share | Email| Comments|  Topics: Enforcement, Montana, Private Right of Action, Water, Water Use

Earlier this month, the United States District Court for the Southern District of Ohio denied motions to dismiss filed by 3M Company, DuPont, Chemours, and other chemical companies in a putative class action lawsuit relating to exposure to PFAS chemicals. Hardwick v. 3M Company, Case No. 2:18-cv-1185 (S.D. Ohio). The court held that the named plaintiff had properly alleged an injury-in-fact for purposes of Article III standing and Ohio law by claiming that he was exposed to PFAS chemicals and that PFAS have been linked to negative health outcomes, despite arguments by the chemical companies that he had not suffered an actual, compensable injury.   Read More »

Share | Email| Comments|  Topics: Class Actions, Medical Monitoring, Ohio, PFAS, Sixth Circuit, Toxic Torts

On September 20, 2019, hitting a trifecta of commonly-litigated CERCLA issues, Judge Nancy J. Rosenstengel, Chief Justice of the United States District Court for the Southern District of Illinois, partially denied and partially granted Defendants’ Motion to Dismiss in The Premcor Refining Group Inc., v. Apex Oil Company, Inc., et. al., No. 17-cv-738-NJR-MAB (S.D. Ill.). The Court held (a) Premcor had adequately pled fact to withstand a defense that the petroleum exclusion barred the claims; (b) Premcor could not simultaneously plead 107 and 113 claims, dismissing its cost recovery claims inasmuch as Premcor had settled its claims with the State of Illinois; and (c) the contribution protection Apex Oil obtained in its settlement with the State of Illinois included CERCLA claims barred Premcor’s claims. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Consent Decree, Contamination, Contribution, Cost Recovery, Illinois, Remediation, Superfund