In a key decision earlier this month with potentially hefty ongoing implications for developers and property owners, the U.S. Court of Appeals for the Third Circuit held a chemical company liable for nearly $1 million in pre-acquisition cleanup costs. The case is Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical, LLC and offers another clear illustration that property owners and developers may be liable for environmental response costs incurred before they acquired property.
Continue Reading Property Owners and Developers Beware: Third Circuit Holds Chemical Company Liable for Pre-Acquisition Cleanup Costs

Last Thursday, the South Carolina District Court reinstated the Obama-era definition of “waters of the United States” (WOTUS) in roughly half the country, furthering the ambiguity in the never-ending saga over how to define WOTUS under the Clean Water Act. South Carolina Coastal Conservation League, et. al. v. Andrew Wheeler, et. al., No. 2:18-cv-00330, at *14 (D.S.C. Aug. 16, 2018). In its decision, the court invalidated the Trump Administration’s Executive Order suspending the Obama Administration’s WOTUS rule (the “Suspension Order”).

Continue Reading District Court Issues Injunction on President Trump’s “Suspension Order” of the WOTUS Definition

A team of Schiff Hardin attorneys compiled “Recent Developments in Toxic Torts and Environmental Law” for the Tort Trial & Insurance Practice Law Journal originally published in the winter of 2016 (Vol. 51-2) on the evolving landscape of the environmental and toxic tort areas of law. Toxic tort-related topics covered by this article include the growing judicial rejection of the “any exposure” causation theory, heightened party disclosure rules in asbestos litigation, and federal preemption of the Engle Phase I jury findings.
Continue Reading Recent Developments in Toxic Torts and Environmental Law

Yesterday, a judge in the Eastern District of Wisconsin reversed his own ruling and held that NCR Corporation’s liability for the cleanup of polychlorinated biphenyls (PCBs) at the Fox River Superfund Site was not subject to divisibility.  Last May, the court held that NCR had proven that the environmental harm in Operable Unit 4 of the Site was capable of apportionment and could be reasonably apportioned based on NCR Corporation’s contribution of PCBs to this area.  In its May decision, the court held NCR liable only for its portion of the costs and determined NCR was not jointly and severally liable for all the costs of cleaning up PCBs in Operable Unit 4 (OU4).  That ruling upheld NCR’s “divisibility defense” to joint and several liability.  After yesterday’s decision, however, NCR is once again jointly and severally liable for all cleanup costs at OU4.
Continue Reading Judge Rejects NCR Fox River Divisibility Defense in Reconsideration

On September 25, 2014, the Seventh Circuit issued two opinions in litigation related to the Fox River Superfund site in Wisconsin.  The Fox River is a sediment site contaminated primarily with polychlorinated biphenyls (PCBs) from the paper making industry.  In one of these decisions, the Seventh Circuit held that, based on evidence at trial, the environmental harm to the Fox River was theoretically capable of being apportioned among the potentially responsible parties (PRPs), and that a permanent injunction was not an appropriate remedy for enforcing a Unilateral Administrative Order (UAO) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  U.S. v. P.H. Glatfelter Co., No. 13-2436, 13-2441 (7th Cir. Sept. 25, 2014).
Continue Reading Seventh Circuit Finds Environmental Harm ‘Theoretically Capable’ of Apportionment

A Phase I Site Assessment is used primarily to investigate commercial real estate for environmental conditions.  The American Society for Testing and Materials (ASTM) International provides a Standard Practice for environmental professionals undertaking a Phase I Site Assessment.  Last fall, ASTM International published a revised version of the Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process or “ASTM E1527-13.”  
Continue Reading USEPA to Phase Out Use of Older Standard Practice for Site Assessments

A recent Seventh Circuit decision addressed the contours of the general statement that USEPA’s decisions in an “on-going” remediation may not be challenged under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  CERCLA Section 113(h)(4) provides that “[n]o Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action” except during a limited number of actions, none of which allow a plaintiff to challenge an ongoing response action.  42 U.S.C. § 9613(h)(4).  Generally, courts applying this provision have found that parties are prohibited from reviewing ongoing clean-up activities under CERCLA.
Continue Reading Judicial Review of a Superfund Clean-up Can Proceed in Stages

As part of its Climate Action Plan, the Obama Administration issued a “Strategy to Reduce Methane Emissions” (the Methane Strategy) at the end of March 2014.  According to the Methane Strategy, methane emissions currently account for almost nine percent of all domestic greenhouse gas emissions (GHGs) in the United States.  While methane emissions have decreased since 1990, they are expected to increase over the next 15 years if no additional action is taken.  The Obama Administration’s Methane Strategy focuses on reducing methane emissions from landfills, coal mines, and the agriculture and oil and gas sectors.  Building on and updating existing programs is key to the strategy.  The key proposals for reducing methane emissions from these areas are outlined by sector below:
Continue Reading Obama Administration Issues Strategy to Reduce Methane Emissions

A team of Schiff Hardin attorneys compiled “Recent Developments in Toxic Torts and Environmental Law”  for the Tort Trial & Insurance Practice Law Journal originally published in the fall of 2013 (Vol. 49-1) on the evolving landscape of the environmental and toxic tort areas of law. Toxic tort-related topics covered by this article include class action decisions discussing procedural aspects of damage calculations and whether plaintiffs can stipulate to damages to avoid jurisdiction. Key toxic tort subjects covered in this update include “duty to warn” and medical monitoring, punitive damages, and new asbestos-related decisions.
Continue Reading Recent Developments in Toxic Torts and Environmental Law

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides two ways of recovering costs spent on cleaning up a contaminated site from other potentially responsible parties (PRPs).  One way to recover these costs is through a contribution claim under Section 9613(f) of CERCLA.  42 U.S.C. § 9613(f).  Section 9613(f)(3)(B) allows a party that has “resolved its liability to the United States or a State” in an “administrative or judicially approved settlement” to bring a contribution claim.  A contribution claim must be brought within three years, but circuits have split on how to interpret when the statutory time period begins to run.  On Monday, Jan. 27, the Supreme Court denied certiorari in a case that would likely have addressed this split.  Bernstein v. Bankert, 702 F.3d 964, 981 (7th Cir. 2012), aff’d Nos. 11-1501, 11-1523, 2013 WL 3927712, *1 (7th Cir. July 31, 2013), cert. denied, No. 13-568, 2014 WL 273271 (Jan. 27, 2014).
Continue Reading Supreme Court Declines to Review Seventh Circuit Decision on CERCLA Statute of Limitations Issues