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Showing 10 posts from October 2011.

Last month I blogged about Sackett v. Environmental Protection Agency (10-1062), the case involving pre-enforcement judicial review of compliance orders under the Clean Water Act that will be argued before the United States Supreme Court this term. Read More »

On October 18, the Natural Resources Defense Council filed a lawsuit in California contending that particulate matter in diesel fuel combustion exhaust is a hazardous waste and therefore subject to the requirements of Resource Conservation and Recovery Act (RCRA).  If the Court agrees, then the world of environmental law and regulation is likely to be turned upside down. Read More »

MGKF litigator Chris Ball recently considered this issue in an article published in The Legal Intelligencer. You can drill into what he had to say here.

At least that may be what the defendants in Raritan Baykeeper Inc., et al. v. NL Industries, Inc. et al., are thinking after the Third Circuit gave new life to plaintiffs’ citizen suit claims seeking to compel defendants to remediate contaminants allegedly discharged into the Raritan River.  The defendants successfully argued before the district court that the court should abstain from hearing the plaintiffs’ RCRA and Clean Water Act citizen suit claims because the New Jersey Department of Environmental Protection (NJDEP) had previously entered into an administrative consent order (ACO) with NL Industries, Inc. (NL) requiring NL to investigate contamination and to perform certain remediation activities at the site.  The ACO also required NL to conduct sediment sampling in the Raritan River, which was done in 2000 and 2002.  While some of the sediment samples showed elevated levels of arsenic, copper, lead and zinc, NL concluded that off-site sources were contributing causes of the contaminated sediments.  After reviewing the sediment sample results, NJDEP issued a letter in 2004 acknowledging off-site sources were contributing to the sediment impacts, and concluding that any remedial actions directed at cleaning up the river sediments should be part of a regional clean-up effort.  Read More »

MGKF is hosting a seminar on Environmental Issues and Opportunities in the Marcellus Shale Region on Thursday, November 3, 2011 in Williamsport, PA, and Lynn will be one of the presenters, speaking on litigating in front of the environmental hearing board and defending CERCLA actions. Read More »

Just a quick note that Kate and I, along with other impressive panelists, are participating in a 2 hour ALI-ABA course in December on medical monitoring claims in a post-Dukes world. Details here: Medical Monitoring And Toxic Tort Claims

In a precedential opinion issued on October 12 in the case of DeLalla v. Hanover Ins., No. 10-3933 (3rd Cir. Oct. 12, 2011), the Third Circuit finally picked a side on the question of whether a later-served defendant can remove a case filed in state court more than thirty days after the first defendant was served with the Complaint. But first, some background. Read More »

On October 12, 2011, in a lengthy opinion that concludes with recognizing plaintiffs’ frustration, Judge Terrence McVerry, of the Western District of Pennsylvania, granted defendants’ motions to dismiss all claims brought by governmental plaintiffs against current and former owners of a coal-fired power plant. In United States v. EME Homer City Generation L.P., et al., the U.S. and state intervenors (Pennsylvania, New Jersey and New York) alleged that defendants violated the federal Clean Air Act (“CAA”)’s PSD (prevention of significant deterioration) and Title V requirements. The crux of plaintiffs’ arguments was that defendants failed to obtain necessary permits, and that more stringent CAA emissions standards applied to projects at the power plant’s modified units to reduce SO2 emissions. Read More »

The Supreme Court has had a lot to say in recent years about how the lower courts should be interpreting CERCLA, but the trend appears to have ended, at least for now.  On October 3, the Court declined to review the Eighth Circuit’s decision inMorrison Enterprises, LLC v. Dravo Corp., which held that the contribution provision of § 113(f) of CERCLA provides the exclusive remedy for a PRP that incurs response costs pursuant to an administrative or judicially approved settlement under §§ 106 or 107, such as a consent decree or administrative order on consent (AOC). Read More »

On September 29th, the U.S. District Court for the Northern District of Georgia handed down the first significant ruling of many expected to come out of the Multi-District Litigation involving contaminated drinking water at North Carolina’s Camp Lejeune Marine Corps Base.  Judge J. Owen Forrester, who is presiding over what may end up to be thousands of lawsuits alleging illness or death associated with the tainted water, held that the United States could not rely on North Carolina’s 10-year statute of repose to obtain dismissal of a plaintiff’s claims – even though the contamination occurred well more than 10 years prior to the filing of suit. Read More »