Last week, the United States Court of Appeals for the Third Circuit resurrected two separate lawsuits filed by residents living near the Willow Grove Naval Air Reserve Station in Horsham Township, Pennsylvania and the Naval Air Development Center in Warminster Township, Pennsylvania, which both seek to have the Navy fund medical monitoring programs for exposure to drinking water impacted by two emerging contaminants – perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) – attributable to operations at the two Naval facilities.  In two parallel cases that were joined for appeal – Giovanni et al. v. U.S. Dep’t of the Navy and Palmer et al. v. U.S. Dep’t of the Navy, 2018 WL 4702222 (3d Cir. Oct. 2, 2018) – the Third Circuit held that the residents’ claims for medical monitoring under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”) were not barred by the Navy’s ongoing investigation and remediation at the sites under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), because a request for medical monitoring “does not interfere with or alter the ongoing cleanup efforts.”  In contrast, the Third Circuit affirmed the dismissal of the residents’ separate claim that sought to have the Navy perform a government-led health assessment or health effects study, which was barred as a challenge to the Navy’s ongoing response actions at the sites. Read More »

Share | Email| Comments|  Topics: Cases to Watch, CERCLA, Drinking Water, Groundwater, HSCA, Medical Monitoring, Pennsylvania, RCRA, Remediation, Removal, Sovereign Immunity, Third Circuit, Toxic Torts

Last week the Third Circuit held that the owner of a remediated site could be liable under CERCLA § 107(a) for environmental response costs incurred before it acquired the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem., LLC., __ F.3d __, No. 17-2607, 2018 WL 4844077 (3d Cir. 2018). In its opinion reversing the district court’s grant of partial summary judgment in advance of trial, the court concluded that “all costs” in § 107(a)(4)(A) means an owner is “indeed liable for all response costs, whether incurred before or after acquiring the property.” Id. at *5. Our blog post discussing the district court’s decision, 204 F. Supp. 3d 814 (E.D. Pa. 2016), can be found here.  Read More »

Share | Email| Comments|  Topics: Allocation, Bona Fide Prospective Purchaser, Case Update, CERCLA, Contamination, Contribution, Cost Recovery, HSCA, Pennsylvania, Pennsylvania Department of Environmental Protection, Real Estate, Remediation, Superfund, Third Circuit

Last week, the Sixth Circuit Court of Appeals held in two separate cases that the Clean Water Act does not extend liability to pollution that reaches navigable waters via groundwater. Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, (6th Cir. Sept. 24, 2018); Tennessee Clean Water Network v. Tennessee Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018). Instead, the court adopted the bright line rule that for a point source discharge to be actionable under the CWA, it must “dump directly into” navigable waters. The decisions departed from the Fourth and Ninth Circuits’ rulings earlier this year, which held that a “direct hydrological connection” between a discharge and waterbody was sufficient for CWA liability. Our prior blog post on the Fourth Circuit’s decision, Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018) can be found here. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Coal Ash, Contamination, Effluents, Groundwater, Navigability, Rapanos, Sixth Circuit, Water

In the latest development in parallel cases captioned EQT Prod. Co. v. Department of Environmental Protection which have been moving through Pennsylvania state courts and the Environmental Hearing Board ("EHB") since early 2014, the Commonwealth Court of Pennsylvania affirmed the EHB’s assessment of penalties totaling $1,137,295.76 against the hydraulic fracturing company, EQT Production Company (“EQT”), for contamination to groundwater arising from a leaking wastewater impoundment. EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 844 C.D. 2017, 2018 WL 4289310 (Pa. Commw. Ct. Sept. 10, 2018). Specifically, on September 10, 2018, the Commonwealth Court held that the EHB did not commit an error of law when it held that, under Clean Streams Law (“CSL”), penalties could be assessed for every day that contamination entered the groundwater from soils “through fundamental hydrologic principles,” even if the initial spill event had ceased and there was no direct evidence of daily transmission of contamination from soil to groundwater. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Case Update, Civil Penalties, Clean Streams Law, Contamination, Declaratory Relief, EHB, Groundwater, Hearing Board, Marcellus Shale, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Water