Last month, the D.C. Circuit, reversing a lower court decision, held that Guam was time-barred from pursuing its claims under CERCLA against the US Navy for the cleanup of the Ordot Dump on the island. Government of Guam v. United States of America, No. 1:17-cv-02487 (D.C. Cir. 2020). Of particular interest was the D.C. Circuit's determination that a 2004 Consent Decree entered into between EPA and Guam to resolve claims under a statutory scheme other than CERCLA, the Clean Water Act, nevertheless sufficiently “resolved” Guam’s liability for at least some remediation costs, giving rise to a contribution claim under Section 113 of CERCLA, bringing the D.C. Circuit in line with a majority of other federal appellate courts that have examined the issue. Read More »

Share | Email| Comments|  Topics: CERCLA, Clean Water Act, Cleanup, Contamination, Contribution, Cost Recovery, D.C. Circuit, Landfill, Remediation, Removal, Statute of Limitations, Superfund, Waste

In a report and recommendation issued last week, a magistrate judge with the United States District Court for the District of Idaho found that disputes of fact preclude summary judgment on the majority of claims brought by a landfill against the United States Air Force and two other defendants. Idaho Waste Systems, Inc. v. U.S. Air Force, No. 1:18-cv-00229 (D.C. Idaho Jan. 27, 2020). The magistrate judge recommended dismissing state law claims brought against the Air Force on sovereign immunity grounds, but found that most of the remaining claims, including claims under CERCLA, should go to trial. Read More »

Share | Email| Comments|  Topics: Arranger Liability, Cases to Watch, CERCLA, Contribution, Cost Recovery, Federal Tort Claims Act, Iowa, Landfill, Ninth Circuit, Nuisance, Property Value, Response Action Contractors, Sovereign Immunity, Superfund, Trespass

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, Judge Chad F. Kenney, former Delaware County Court of Common Pleas Judge and recent appointee to the United States District Court for the Eastern District of Pennsylvania, granted Defendant Bethlehem Landfill Company’s motion to dismiss a putative class action alleging that landfill odors created a public and private nuisance for all households within a 2.5-mile radius of the facility. Baptiste v. Bethlehem Landfill Co. et al., No. 18-2691, 2019 WL 1219709 (E.D. Pa. Mar. 13, 2019). The lead plaintiffs, Robin and Dexter Baptiste, reside 1.6 miles from the facility and allege that odors from the facility impacted their property value and ability to enjoy their property. Id. at *5. They alleged that the conditions affected 8,400 households within a 2.5-mile radius. Id.  They styled their claims as claims for public nuisance, private nuisance, and negligence. Id. at *1. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Landfill, Negligence, Nuisance, Odors, Pennsylvania, Private Right of Action, Property Value

In Rice v. First Energy Corporation, a putative class of plaintiffs living near a former landfill filed trespass, nuisance, negligence, and medical monitoring claims against First Energy Corporation and NRG Energy, Inc., alleging that each Defendant was liable for claims arising from their respective subsidiaries’ disposal of coal ash in the landfill. No. 2:17-cv-489-LPL, 2018 WL 4282850, at *1 (W.D. Pa. Sept. 7, 2018). Though it frequently noted Plaintiffs’ lackluster efforts to pursue discovery and their heavy reliance on conclusory, minimalistic arguments, U.S. Magistrate Judge Lisa Pupo Lenihan nevertheless dug deep into the parties' arguments to issue a thorough and strong opinion highlighting the difficulty of piercing a corporate veil in an environmental case and concluding that the Defendants were neither corporate successors nor alter egos of their respective subsidiaries. Id. at *13. Read More »

Share | Email| Comments|  Topics: Alter Ego, Class Actions, Coal Ash, Corporate Veil, Landfill, Medical Monitoring, Negligence, Nuisance, Pennsylvania, Toxic Torts, Trespass

In an opinion issued on February 12, 2018 in the case of Cooper Crouse-Hinds LLC et al. v. City of Syracuse et al., Case No. 5:16-cv-01201 (N.D.N.Y. Feb. 12, 2018), Judge Mae D’Agostino of the United States District Court for the Northern District of New York weighed in on the issue of when state court orders for removal and remediation resolve a potentially responsible party's liability to the government under Section 113 of CERCLA, and in this case allowing, for at least the time being, Section 107 claims to proceed where there was no clear guidance from the Second Circuit. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contribution, Cost Recovery, Landfill, New York, Remediation, Removal, Second Circuit, Superfund

On November 8, 2017, the Pennsylvania Environmental Hearing Board (the “Board”) issued an adjudication in Friends of Lackawanna v. DEP, EHB Docket No. 2015-063-L (Adjudication issued Nov. 8, 2017), in which the Board upheld the Pennsylvania Department of Environmental Protection’s (“DEP”) issuance of a renewal of Keystone Sanitary Landfill, Inc’s (“Keystone”) solid waste management permit for the Keystone Landfill. At the same time, the Board added a condition to the permit requiring Keystone to prepare a groundwater assessment plan based on groundwater degradation observed in one of its monitoring wells. Interspersed throughout this decision was language that shed additional light on the Board’s view of how Article I, Section 27 of the Pennsylvania Constitution, often referred to as the Environmental Rights Amendment, applies to DEP permitting decisions. Read More »

Share | Email| Comments|  Topics: Administrative Hearing, EHB, Environmental Rights Amendment, Groundwater, Landfill, Odors, Pennsylvania, Permits, Waste

Last week, a federal district court in Alabama rejected motions to dismiss a RCRA declaratory judgment and injunctive relief action filed by an environmental interest group against a group of defendants including an Alabama manufacturer that formerly used and disposed of materials containing perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). Tennessee Riverkeeper, Inc. v. 3M Co. et al., No. 16-1029-AKK (Feb. 10, 2017 N.D. Ala.).  This decision follows a chain of increasing regulatory and private scrutiny of PFOA and PFOS.  In May 2016, EPA released more stringent drinking water standards for PFOA and PFOS, and firms that use, used, or disposed of one or both of the chemicals are frequently becoming the targets of regulatory and private enforcement efforts like this one. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Cleanup, Contamination, Drinking Water, Landfill, NPDES, RCRA, Water

In an unpublished opinion issued last week, the Appellate Division of the New Jersey Superior Court found that a local ordinance that declares as a nuisance “the escape into the open air . . . of smoke, fly ash, dust, fumes, vapors, mists, or gases as to cause injury, detriment or annoyance . . .” is neither preempted by the New Jersey Solid Waste Management Act (“SWMA”) nor unconstitutionally broad or vague.  The case, New Jersey v. Strategic Environmental Partners, LLC, No. A-4968-13T4, was decided on November 19, 2015 by Judges Messano and Simonelli. Read More »

Share | Email| Comments|  Topics: Consent Decree, Enforcement, Enforcement Action, Landfill, New Jersey, Nuisance, Odors, Preemption, Waste

On August 1, 2014, the Ninth Circuit Court of Appeals handed down a decision in Arizona v. Raytheon Co., No. 12-15691 (9^th Cir. Aug. 1, 2014), that may give trial courts some pause before approving future CERCLA settlements.  At issue was whether the trial court failed to adequately scrutinize consent decrees entered into between the Arizona Department of Environmental Quality (the “ADEQ”) and twenty-two Potentially Responsible Parties (“PRPs”) allegedly liable under CERCLA for contamination at the Broadway-Patano Landfill Site.  The majority opinion held that the trial court’s deference to the AQED’s judgment that the settlements were fair and reasonable was impermissible, and sent the case back down for a more thorough fairness hearing.   However, the more important aspect of the decision may be that, in dicta, the Court concluded that “[e]ven if EPA had been a party to the proposed consent decrees in this case, the district court would have failed to fulfill its duty to independently scrutinize the parties’ agreements.”  Id. at 21. Read More »

Share | Email| Comments|  Topics: Arizona, CERCLA, Cleanup, Consent Decree, Contamination, Contribution, EPA, Landfill, Ninth Circuit, Remediation, Removal, Superfund