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

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In an unpublished opinion, Sutton v. Hoffmann-La Roche, Inc., No. A-5545-18T3 (N.J. App.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 2015, a pipeline in Santa Barbara County, California ruptured and leaked oil, some of which made its way to the ocean and eventually washed up on local beaches. A class of plaintiffs brought an action in federal district court against defendants Plains All American Pipeline, L.P., and Plains Pipeline L.P. (“Plains”) for claims of statutory violations, negligence, public nuisance, continuing private nuisance, nuisance per se, and trespass. In response, Plains filed a motion for summary judgment which sought to have the claims of the Property Subclass plaintiffs dismissed, primarily on the basis that the harm caused by the oil spill was a “temporary diminution in property value,” and not recoverable as a matter of law.

Last week, Judge Gutierrez of the District Court for the Central District of California issued an order denying most of the defendants’ motion for summary judgment, thereby allowing the litigation to continue. See Keith Andrews et al v. Plains All American Pipeline, L.P. et al., CV 15-4113 PSG (JEMx) (Mar. 17, 2020). The court held that several of plaintiffs’ claims contained genuine issues of material fact that should be brought before a jury, and that it could not rule as a matter of law that plaintiffs had not suffered harm. The claims which merited the most analysis in the order were the common law property claims, i.e.: negligence, nuisance, and trespass. Read More »

Share | Email| Comments|  Topics: California, Class Actions, Contamination, Damages, Negligence, Nuisance, Oil and Gas, Property Damage, Property Value, Real Estate, Trespass

In an opinion and order released last week, the MDL court in In re Gold King Mine Release denied response contractors’ motions to dismiss. No. 1:18-md-02824-WJ, 2019 WL 1282997 (D. N.M. March 20, 2019) (slip opn.). The 2015 Gold King Mine release sent over three million gallons of contaminated wastewater into rivers in Colorado, New Mexico, and Utah. In the wake of the spill, the State of New Mexico, the State of Utah, the Navajo Nation, and multiple individual plaintiffs filed suit against the mine’s owner, the federal government, EPA, and EPA response contractors, Weston Solutions, Inc. and Environmental Restoration, LLCC (the “Response Contractors”). The court’s opinion, which allows the majority of plaintiffs’ CERCLA and tort claims to move forward, comes on the heels of a similar order denying the Federal Government’s motions to dismiss. See In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). Our blog post discussing that earlier opinion and order can be found here.    Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Citizen Suit, Clean Water Act, Cleanup, Colorado, Consultant Liability, Contamination, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Response Action Contractors, Superfund, Trespass, Tribal Lands, Utah, Water

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 an opinion and order released last week, the United States District Court for the District of New Mexico denied the federal government’s motions to dismiss claims relating to the 2015 Gold King Mine wastewater spill. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). The district court was not convinced by the government’s argument that it was entitled to sovereign immunity and that the plaintiffs’ complaints were inadequate. It denied the motions and allowed all but one of the plaintiffs’ claims to proceed to discovery. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Cleanup, Colorado, Contamination, EPA, Federal Tort Claims Act, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Sovereign Immunity, Superfund, Trespass, Tribal Lands, Utah, Water

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

Love Canal – the infamous neighborhood in Niagara Falls, New York where large quantities of chemical waste was dumped, and which became the catalyst for enactment of the federal Superfund program – is still generating legal opinions, nearly 40 years after President Jimmy Carter declared a federal health emergency and Love Canal became the first Superfund site.  Read More »

Share | Email| Comments|  Topics: Contamination, Damages, Defense Costs, Indemnification, Insurance, Insurance Coverage, Medical Monitoring, Negligence, New York, Remediation, Second Circuit, Superfund, Toxic Torts

In a 2-1 decision last week, the Michigan Court of Appeals declined to dismiss a lawsuit against Dow Chemical in connection with dioxin contamination in the soils of the Tittabawassee River flood plain. Henry v. Dow Chemical Co., LC No. 03-047775-NZ (Mich. Ct. App. June 1, 2017).  Affirming the lower court’s denial of Dow’s motion for summary disposition, the Court of Appeals rejected the argument that the plaintiffs’ claims for negligence and nuisance were barred by the applicable statute of limitations even though the public was made aware of potential dioxin contamination in the river from Dow’s operations as early as 1984.  The Court’s analysis, which was accompanied by a dissenting opinion, turned on the fact that Dow failed to support its motion with evidence that the floodplain soils on the plaintiffs’ property were contaminated as far back as the 1980s.  Read More »

Share | Email| Comments|  Topics: Cases to Watch, Causation, Contamination, Damages, Discovery, Discovery Rule, Michigan, Negligence, Nuisance, Real Estate, Residential, Sediment Sites, Statute of Limitations, Toxic Torts