The D.C. Circuit recently held that EPA was not required to consider mitigation measures taken at a site when determining whether to add the site to the National Priorities List (“NPL”) under CERCLA. Meritor, Inc. v. EPA, No. 18-1325, 2020 WL 4299124 (D.C. Cir. July 28, 2020).

In 2016, the U.S. Environmental Protection Agency (“EPA”) conducted a study of indoor air quality at the Rockwell International Wheel & Trim facility (the “Site”), located in Mississippi, and discovered elevated concentrations of toluene, trichloroethylene (“TCE”), and cis-1,2-dichloroethene (“DCE”) in the main building at the Site. In 2017, Meritor, Inc. (“Meritor”), which inherited liability for contamination at the Site, conducted a subsurface investigation beneath the main building and uncovered elevated levels of toluene and TCE. In that same year, Meritor installed a sub-slab depressurization system designed to mitigate the impacts of vapor intrusion in the main building. In 2018, notwithstanding Meritor’s mitigation efforts, EPA added the Site to the NPL based on vapor intrusion impacts. Read More »

Share | Email| Comments|  Topics: CERCLA, D.C. Circuit, National Priorities List, Solvents, Superfund, Vapor Intrusion

In late July 2020, the United States District Court for the Southern District of Ohio granted in part and denied in part defendants’ motion to dismiss in a case involving releases of uranium radiation and other non-radioactive waste onto plaintiffs’ property. See Op. and Order, McGlone v. Centrus Energy Corp., et al., Case No. 2:19-cv-02196 (S.D. Ohio, July 31, 2020). Claims involving the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Price-Anderson Act and were dismissed for failing to state a claim, while most state law tort claims for releases of non-radioactive waste were permitted to move forward, the court clarifying that medical monitoring exists as a form of damages under Ohio law and not as a separate claim. Read More »

Share | Email| Comments|  Topics: CERCLA, Medical Monitoring, Negligence, Nuisance, Ohio, Price-Anderson Act, Remediation, Removal, Statute of Limitations, Superfund, Trespass

In MPM Silicones, LLC v. Union Carbide Corporation, the U.S. Court of Appeals for the Second Circuit held that there can be more than one “remedial action” at a site under certain circumstances for the purpose of determining the statute of limitations under CERCLA. Dkt. No. 17-3468(L), 17-3669(XAP) (2d Cir. 2019). The decision clarified a statement in a prior decision by the Second Circuit that had suggested otherwise. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Groundwater, PCBs, Remediation, Second Circuit, Statute of Limitations, Superfund, West Virginia

Content for this post was provided by Isabel Teuton, a MGKF summer associate.

In National Fuel Gas Supply Corp. v. Schueckler, 2020 WL 3453939 (N.Y. June 25, 2020),the State of New York Court of Appeals held that the issuance of a certificate of convenience and necessity by the Federal Energy Regulatory Commission (FERC) under the Natural Gas Act (NGA) exempted the holder of the certificate from complying with the public notice and hearing requirements of New York’s Eminent Domain Procedure Law (EDPL) even where the certificate holder had not yet met other conditions attached to the certificate. The Court reasoned that since FERC placed no condition on the vested eminent domain power granted with the certificate and had completed its mandated analysis of the pipeline’s effect on the public interest, there was a valid exemption from further review under EDPL 206(A), thus permitting the condemnation to move forward. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Condemnation, Eminent Domain, Natural Gas Act, New York, Oil and Gas, Pipelines

Last week the Third Circuit Court of Appeals issued a precedential opinion reversing the Eastern District of Pennsylvania’s decision granting a Motion to Dismiss a complaint filed by homeowners concerning alleged odors and air contaminants emanating from the Bethlehem landfill, thus reviving the case. Baptiste v. Bethlehem Landfill Co., No. 19-1692, slip op. (3d. Cir. July 13, 2020). In doing so, the Court found that a class of Pennsylvania homeowners allegedly affected by landfill odors may bring suit under theories of negligence, public nuisance and private nuisance. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Damages, Landfill, Negligence, Nuisance, Odors, Pennsylvania, Pennsylvania Department of Environmental Protection, Property Damage, Property Value, Residential, Solid Waste Management Act, Third Circuit, Waste

In a Letter Order issued on July 10, 2020, the United States District Court for the District of New Jersey held that broad language by which an entity assumed the liabilities of a dissolved entity was sufficient to confer both personal jurisdiction and liability on the entity which assumed the obligations. Occidental Chemical Corporation v. 21^st Century Fox America, et. al., Civ. Action No. 18-11273 (D.N.J. July 10, 2020). In doing so, the Court brushed aside arguments that the jurisdiction was lacking because the dissolved entity had ceased operations in New Jersey long before the assumption of liability and that the lack of specificity in the assumption precluded a finding that CERCLA liability was included. Read More »

Share | Email| Comments|  Topics: CERCLA, Contribution, Cost Recovery, New Jersey, Personal Jurisdiction, Sediment Sites, Successor Liability, Superfund

This Post was authored by Lisa Maeyer, a MGKF summer associate. 

On June 8, 2020, the Commonwealth Court of Pennsylvania affirmed a trial court’s holding that flooding from sewage overflows not resulting from intentional activity on the part of a sanitary authority did not constitute a de facto taking of a landowner’s affected property. In the Matter of: Condemnation by the Franklin Twp. Sewage Auth., No. 1237 C.D. 2019, 2020 WL 3039070 (Pa. Cmwlth. June 8, 2020). In particular, the Court held that because the sewage overflows resulted from the age of the system and infiltration and inflows not caused by any actions of the Franklin Township Municipal Sanitary Authority (the “Authority”), the lower court properly sustained preliminary objections to Plaintiff William Ott’s petition seeking compensation for a de facto taking of his property. Read More »

Share | Email| Comments|  Topics: Condemnation, Damages, Eminent Domain, Flooding, Pennsylvania, Property Damage, Property Value, Real Estate, Sovereign Immunity, Stormwater, Takings, Trespass, Water

Reversing the Fourth Circuit, the Supreme Court on Monday issued its opinion in United States Forest Service v. Cowpasture River Preservation Association, No. 18-1584 (June 15, 2020). In a 7-2 decision, Justice Thomas wrote for the majority that the Appalachian National Scenic Trail’s passage through United States National Forest land is best viewed as a grant of an easement to the National Park Service rather than a transfer of ownership of the underlying land. In doing so, the Court upheld the Forest Service’s right to permit a pipeline to run beneath the Trail under the Mineral Leasing Act (MLA). Read More »

Share | Email| Comments|  Topics: Federal Energy Regulatory Commission, FERC, Forest Service, Fourth Circuit, Interior, Mineral Leasing Act, National Forest Management Act, NEPA, Oil and Gas, Permits, Pipelines, Public Lands, Supreme Court, United States Supreme Court

In an unpublished opinion, Sutton v. Hoffmann-La Roche, Inc., No. A-5545-18T3 (N.J. App. Div. May 27, 2020), the Appellate Division of the New Jersey Superior Court recently affirmed a lower court’s certification of a class seeking damages due to lost property value premised upon the existence of contaminated groundwater.  Certification of similar homeowner classes has been illusive in federal courts, and thus of particular note here, the Appellate Division made clear that the while the language of New Jersey’s class certification rule is “textually similar” to the federal rule, New Jersey’s interpretation of its own rule is “far more liberal and permissive toward class certification.” Op. at 30, n. 6. Although the local nature of the case most likely made the Class Action Fairness Act inapplicable, this decision is further evidence of the importance to defendants in class action litigation of exercising removal jurisdiction whenever possible. Read More »

Share | Email| Comments|  Topics: CAFA, Certification, Class Actions, Contamination, Damages, Groundwater, Negligence, New Jersey, Nuisance, Property Value, Residential, Trespass

In two recent decisions, courts have continued to preclude “classic” tort claims without proof of a current symptomatic condition and to place substantial limits on medical monitoring clams under state common law. In Benoit v. Saint-Gobain Performance Plastics Corporation, No. 17-3941 (2d Cir. 2020), the Second Circuit affirmed a district court’s denial of defendants’ motion to dismiss medical monitoring damages based on personal injury but cast significant doubt of the viability of such relief in the absence of any physical manifestation of exposure.  And in Letart v. Union Carbide Corporation, No. 2:19-cv-00877 (S.D. W.Va. 2020), the Court granted a motion to dismiss plaintiffs’ common law claims but allowed medical monitoring claims related to ethylene oxide (“EtO”) emissions to proceed, yet without addressing or determining whether the plaintiffs can meet the evidentiary requirements for such claims.  Read More »

Share | Email| Comments|  Topics: Medical Monitoring, PFAS, Second Circuit, Toxic Torts