January 01, 2012

In Brief

by Theodore L. Garrett


A real estate developer that performed voluntary cleanup actions failed to state a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 113(f) contribution claim against the successor to a former owner, a district court held. Queens West Development Corp. v. Honeywell International, Inc., 2011 WL 3625137 (D.N.J. Aug. 17, 2011). Voluntary cleanup costs are only recoverable under CERCLA section 107(a), and plaintiff also did not claim that it is a responsible party. The company’s nuisance claim was dismissed because historic contamination on plaintiff’s property is not an invasion of property under state nuisance law.

A property owner alleged to have caused contamination to become more widespread may be liable under CERCLA. Saline River Properties v. Johnson Controls, No. 10-10507, 2011 WL 4916681 (E.D. Mich. Oct. 17, 2011). The prior property owner alleged that the present owner, Saline, destroyed the building slab, causing migration of contamination to soils and groundwater. These allegations were sufficient to deny Saline’s CERCLA section 107(a) summary judgment motion, the court stated, noting that the allegations went beyond passive migration.

Air quality

Present and former owners of a power plant were not liable for the alleged failure to obtain pre-construction permits for projects undertaken from 1991 to 1996, a district court held. U.S. v. EME Homer City Generation LP, 2011 WL 4859993 (W.D. Pa. Oct. 12, 2011). The court held that because the projects occurred fifteen to twenty years ago, the five-year limitations period to file claims for civil penalties had expired. The current owners cannot be held liable for injunctive relief because they did not violate the Prevention of Significant Deterioration (PSD) program. Injunctive relief was not warranted against the former owners, the court ruled, because the plant was operating normally under a Title V permit and there was no danger of recurrent violations.

EPA may not bring an enforcement lawsuit against a company that submitted a pre-construction notice estimating that future emissions would not trigger New Source Review (NSR), a court held. U.S. v. DTE Energy Co., 2011 WL 3706585 (E.D. Mich. Aug. 23, 2011). The opinion states that the 2002 NSR rules allow sources “the option of either getting a permit before commencing their projects, or measuring their emissions afterward and running the risk of the Government bringing an enforcement action.” Once the source operator submits a projection that construction would not result in a significant net emissions increase, it need not obtain a NSR permit before beginning construction. The determination whether the project triggered NSR cannot be made until the submission of the report due within sixty days of the calendar year following the project’s completion. The court also rejected EPA’s attempt to challenge the notification, stating that the company was not required to submit back-up data supporting its calculations.      

Water quality

Environmental groups may pursue a lawsuit against a coal company for alleged National Pollutant Discharge Elimination System (NPDES) permit violations even though an enforcement action was pending in state court. Ohio Valley Environmental Coalition v. Maple Coal Co., No. 3:11-0009, 2011 WL 3874576 (S.D. W. Va. Sept. 2, 2011). The district court held that the state action was non-specific and was not being diligently prosecuted, and that injunctive relief is appropriate because of the frequency of the effluent limitations violations.


A district court held that the owner of PCB-contaminated property is not entitled to injunctive relief under the Resource Conservation and Recovery Act (RCRA) to compel the former owner to pay for future cleanup costs or perform remediation. Tyco Thermal Controls LLC v. Redwood Industrials, 2010 WL 3211926 (N.D. Cal. Aug. 12, 2010). Because an EPA-approved RCRA cleanup plan was in place at the site, the current owner is not entitled to the relief requested.

The Third Circuit vacated a lower court decision dismissing, on grounds of abstention, environmental groups’ RCRA and Clean Water Act citizens suit seeking to require the current and prior owners of a site to clean up river sediments. Raritan Baykeeper v. NL Industries, Inc., No. 10-2591, 2011 WL 4537837 (3d Cir. Oct. 2, 2011). The court held that there is little risk of a conflict with state directives in light of agency inaction during the last several years.


A district court vacated an EPA order, prohibiting the manufacture and distribution of a pesticide, under the Federal Insecticide, Fungicide, and Rodenticide Act. American Vanguard Corp.v. Jackson, No. 10-CV-1459, 2011 WL 3606517 (D.D.C. Aug. 17, 2011). The court held that the order was invalid because it was issued by the director of the Waste and Chemical Division whereas another division had been granted delegated authority to issue such orders.  The opinion states that “the Court will not stand idly by and permit significant action undertaken by an official who is not legally authorized to take it.”

Toxic torts

A district court granted in part and denied in part motions to dismiss various personal injury claims against oil drillers, cleanup responders, and a dispersant manufacturer based on exposure to oil and dispersants following the Deepwater Horizon incident. In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, No. MDL 2179, 2011 WL 4575696 (E.D. La. Sept. 30, 2011). The court rejected the derivative immunity argument by responders and the manufacturer because the complaint alleged that BP, rather than the federal government, was in control of response actions. The court held that the plaintiffs’ claims for negligence, gross negligence, product liability, and medical monitoring may proceed under maritime law, but only for plaintiffs who alleged a physical injury.

The Third Circuit affirmed a district court decision denying class certification in a suit alleging that defendants released contaminants at an industrial site near their homes. Gates v. Rohm &Haas Co., 655 F.3d 255 (3d Cir. 2011). Consideration of whether medical monitoring of plaintiffs is medically necessary would require individual proceedings to consider a class member’s specific exposures and medical histories, and the district court found that individual issues predominate over any issues common to the class under the federal class action rule, Rule 23(b)(3). For similar reasons, the district court did not abuse its discretion in refusing to certify a class of owners seeking property damages.

Theodore L. Garrett

Theodore L. Garrett is a partner at Covington & Burling in Washington, D.C. He is a former chair of the Section and is a contributing editor of Trends.