Jul 14, 2015

The Energy /Water Connection and the Role of HB 57

SGR Partners Andy Thompson and Steve O’Day are scheduled to speak at the State Bar of Georgia Environmental Law Section Summer Seminar on July 24-25, 2015 at Hilton Head Island.  Andy will speak on a “Current Events” panel and will address recent developments in the Clean Water Act Permit Shield Defense, and Steve will speak on a panel entitled “Water Supply and Energy Demand: Striking the Right Balance” and will address “The Energy/Water Connection and the Role of HB 57.”

May 26, 2015

Liability Allocation Under CERCLA Within Court’s Discretion

A Federal Appeals Court in the Ninth Circuit has unanimously ruled on April 2, that Federal Trial Courts are not required to employ a specific formula when allocating costs between private parties for clean-up expenses incurred under CERCLA. The Court stated that District Courts have discretion in determining the most equitable method of accounting for settlements between private parties in a contribution action, and stated that this approach is consistent with both federal common law and the intent of CERCLA. Under the Ruling, District Courts can apply equitable factors in deciding whether to subtract from a Plaintiff’s potential recovery the… Read more

May 4, 2015

Land Deposition of Air Pollutants Constitutes Disposal of Hazardous Waste

Disagreeing with a decision by the Ninth Circuit Court of Appeals, the U.S. District Court for the Southern District of Ohio, Judge Algenon Marbley, ruled on March 10 that the deposition on land of perfluorooctanoic acid (C8) on a well field owned by a rural water district constitutes disposal of hazardous waste under the Resource Conservation and Recovery Act (RCRA). Contamination of soil and groundwater from such deposition thus can be addressed in an RCRA citizens suit if shown that it is an imminent and substantial endangerment to human health or the environment.  The Little Hocking Water Association, et al… Read more

Mar 23, 2015

Federal Court Rules That CERCLA Prevents Federal Nuisance Claims for Hazardous Materials Contamination

Following the reasoning of the Supreme Court in Connecticut v. American Electric Power Co., Inc. (AEP), 546 U.S. ___ (No. 10-174, S. Ct. 2011), the U.S. District Court for the Eastern District of Washington ruled in January that federal common law nuisance claims filed by Washington residents living downstream and downwind of a Canadian metal smelter and fertilizer manufacturing facility must be dismissed, because CERCLA displaces the federal common law of nuisance. Barbara Anderson, et al. v. Teck Metals, 2015 BL 1624 (E.D. Wash. No. 13-CV-420, 1/5/15). Former and current residents of Northport, Washington filed a class action alleging that air… Read more

Mar 16, 2015

Federal Court Decision in Clean Air Act Citizen Suit Case

On February 25, 2015, the U.S. District Court for the Eastern District of Arkansas issued a decision in the case of Nucor Steel-Ark. v. Big River Steel, in which the plaintiff steel company attempted to utilize the citizen suit provision of the federal Clean Air Act (CAA) to stop a competitor from constructing a $1.3 billion steel mill. In the case, the plaintiff steel company alleged that the defendant competitor violated the CAA because the defendant had received a state-issued air quality permit for a new steel mill to be constructed, but had failed to conduct certain air quality modeling… Read more

Feb 23, 2015

Sixth Circuit Upholds Permit Shield Defense Under CWA General Permits

A Sixth Circuit Court of Appeals panel has ruled for the first time that the Clean Water Act’s (CWA) permit shield defense protects a permittee covered under a General Permit from a citizen suit alleging discharges of toxins not specifically authorized by the permit. The 2-1 ruling issued January 27 in Sierra Club v. ICG Hazard, No. 13-5086 (6th Cir. Jan. 27, 2015) is the first federal appellate decision extending the two-part permit shield test adopted by the Fourth Circuit in Piney Run Preservation Association v. County Commissioners of Carroll County, MD, 268 F. 3d 255 (4th Cir. 2001) to… Read more

Oct 13, 2014

Federal Appellate Court Decision In Groundwater Contamination Case

On October 6, 2014, the U.S. Court of Appeals for the Eleventh Circuit, which is the appellate court for federal district courts in Georgia, Florida, and Alabama, issued a decision in the case of Joseph Adinolfe et al. v. United Technologies Corporation, a toxic tort case in which hundreds of property owners in a residential area of Palm Beach County, Florida sued an aerospace company for damages resulting from purported groundwater contamination. In the case, the plaintiffs alleged that one plaintiff had developed cancer as a result of exposure to contamination in drinking water wells and that the remaining plaintiffs… Read more

Sep 2, 2014

Recent Trend in Environmental Litigation: Public Nuisance Cases Against Regulated Entities for Air Pollution

A June 13 ruling by the Iowa Supreme Court highlights a recent trend in environmental litigation: lawsuits against regulated entities asserting state law public nuisance claims for air pollution.  In 2011, the U.S. Supreme Court held unanimously that the Clean Air Act preempts federal common law nuisance claims against a utility for emissions of greenhouse gases. American Electric Power v. Connecticut, 564 U.S. ___ (2011). Since then, litigants have sued power utilities and other entities with Clean Air Act permits under the state common law of nuisance in various states. In 2010, the Fourth Circuit Court of Appeals held that the… Read more

Apr 2, 2012

Eleventh Circuit Issues Important Decision on Remedies Available Under CERCLA

By Andy Thompson, In a March 6, 2012 decision, the U.S. Court of Appeals for the Eleventh Circuit held that parties who enter into a consent decree with the U.S. Environmental Protection Agency (EPA) following an EPA enforcement action and then seek recovery of cleanup costs from other potentially responsible parties (PRPs) are limited to a contribution claim under § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and may not simultaneously pursue a cost recovery action under § 107(a) of CERCLA. In the case of Solutia, Inc., et al. v. McWane, Inc., et al., the… Read more

Mar 20, 2012

Andy Thompson Published in Georgia Bar Journal

SGR Partner Andy Thompson recently published an article entitled “The Sophisticated User Defense: It’s Not Just for Drug Companies Anymore” in the February 2012 Georgia Bar Journal. The Georgia Bar Journal is a bi-monthly publication of the State Bar of Georgia and is distributed to more than 35,000 attorneys in the state of Georgia and throughout the United States. Andy’s article discusses the application of the “sophisticated user” defense, also known as the “learned intermediary” doctrine, in toxic tort cases in Georgia—specifically, the defense is increasingly being utilized by manufacturers and suppliers of allegedly hazardous products in defending against failure… Read more