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Showing 15 posts in Groundwater.

On August 10, 2020, the Ninth Circuit reversed a lower court’s grant of defendants’ motion for summary judgement, permitting plaintiffs’ case to move forward in a Superfund action for contribution. See Arconic v. APC Investment, No. 19-55181 (9th Cir. Aug. 10, 2020), a case we had reported on here. At issue was whether a settlement between plaintiffs and certain de minimis parties for future potential response costs was an adequate triggering event for the statute of limitations period (against different defendants) in an action for contribution under CERCLA Section 113(f). The Ninth Circuit held that it was not, explaining that in the context of a “judicially approved settlement,” the proper triggering event was a settlement which imposed actual cleanup costs in excess of a party’s estimated liability at the site. Read More »

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 »

In an unpublished opinion, Sutton v. Hoffmann-La Roche, Inc., No. A-5545-18T3 (N.J. App.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 »

Today, the Supreme Court altered Clean Water Act jurisprudence when it vacated and remanded a closely-watched Ninth Circuit decision which pertained to the federal government’s authority to oversee of the migration of pollution through groundwater to navigable waters. See County of Maui, Hawaii v. Hawaii Wildlife Fund et al., No. 18-260, 590 U.S. ____ (Apr. 23, 2020). In writing for the 6-3 majority, Justice Breyer presented the central issue of the litigation as “whether the [Clean Water] Act ‘requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,’ here, ‘groundwater.’” Id. at 1 (internal citations omitted). The Court held that a permit issued under the Clean Water Act is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Id. Because the “functional equivalent” standard is slightly amorphous, the Court introduced several factors to aid courts, the Environmental Protection Agency (EPA), and the regulated community in making permitting determinations. See Breyer Factors, below. Read More »

It has been more than a decade since the United States Supreme Court decided Burlington Northern & S.F. R. Co. v. United States, 129 S. Ct. 1870 (2009), holding that liability under Section 107(a) of CERCLA is not necessarily joint and several, but in appropriate circumstances can be divisible. And yet, courts still struggle to determine when liability is divisible and thus subject to apportionment rather than equitable allocation, with the latter, joint and several liability, still remaining the go to default. The March 30, 2020 decision from the U.S. District Court for the Southern District of Indiana, in the case of Von Duprin, LLC v. Moran Electric Service, Inc., No. 1:16-cv-01942-TWP—DML (S.D. Ind. Mar. 30, 2020), is no exception. The Court found that liability for a comingled plume of volatile organic compounds (“VOCs”) was divisible, but then applied equitable factors to allocate liability. And, in getting to its final decision, the Court also discussed what costs can be recovered under 107(a), the standard for determining compliance with the National Contingency Plan (“NCP”), and what steps a lessee needs to take to avail itself of the bona fide prospective purchaser (“BFPP”) defense. This is going to be a long one, so pull up a chair. Read More »

On April 9, 2019, Judge John Z. Lee of the District Court for the Northern District of Illinois, Eastern Division denied the City of Evanston’s motion for a preliminary injunction against two utility companies in a RCRA action that sought to compel the utility companies to investigate and remediate polycyclic aromatic hydrocarbon (PAH) contamination in the area.  After a lengthy evidentiary hearing spanning eight days, Judge Lee found that the city had failed to meet its overall burden of proving likelihood of success on the merits, in part because he believed one of the city’s main theories of contamination to be “simplistic.”  (Memorandum Opinion and Order, at *4, City of Evanston v. Northern Illinois Gas Company, No. 16 C 5692 at *19 (N.D. Ill. Apr. 9, 2019)). And on May 16, 2019, the Seventh Circuit Court of Appeals affirmed a similar decision in Varlen Corporation v. Liberty Mutual Insurance Company, No. 17-3212 (7th Cir. May 16, 2019), excluding an expert witness and granting summary judgment to the defendant because the expert's testimony regarding the cause of contamination was found to be unreliable, having failed to meet the Daubert standard. Read More »

Last week, the Central District of Illinois dismissed a case wherein an environmental group sought to extend liability to a corporation based on a groundwater connection to the Middle Fork River under the Clean Water Act (the “CWA”). Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 18-cv-02148 (C.D. Ill. Nov. 14, 2018). In so doing, the court held that it was bound by the Seventh Circuit’s 1994 decision in Village of Oconomocow Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994) wherein the Circuit court had held that discharges into groundwater were not regulated under the CWA. The district court’s decision is in line with the Sixth Circuit’s recent decisions in Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, (6th Cir. Sept. 24, 2018) and Tennessee Clean Water Network v. Tennessee Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018), discussed by this blog here and in contrast to the Fourth Circuit’s decision in Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018), discussed by this blog here. Read More »

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 »

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 »

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 »