Environmental Law Portal

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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations. 

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Wide-ranging Federal Plans to Address Chemical Process Safety and Security

Substantive changes may be coming to OSHA’s process safety management standard, EPA’s Risk Management Plan regulations, and DHS’s CFATS program. Companies affected by these and other programs regulating process safety and security should be aware of the developments and, as appropriate, consider participating in the rulemaking process. This alert reports on why and how multiple federal agencies are newly focused on updating and expanding their programs related to handling hazardous chemicals safely and securely.  Read More ›

Phthalates Panel Recommends Additional CPSC Restrictions

Over the next several months, the U.S. Consumer Product Safety Commission (CPSC) will be reviewing the report and recommendations of an agency advisory panel regarding risks of phthalates in children’s products. If implemented by CPSC through rulemaking, the recommendations of the long-delayed report would restrict phthalates more stringently.   Read More ›

DOT Proposes Rules for Rail Transport of Flammable Materials: New Standards for Classification, Tank Cars, Emergency Preparedness

Following recent events highlighting the potential devastating effects of accidents involving rail transportation of flammable liquids, the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the U.S. Department of Transportation (DOT) released a pre-publication copy of a Notice of Proposed Rulemaking (NPRM) on July 23 designed to improve the safety of transporting such materials. The proposed regulations come more than a year after the derailment and explosion of a train carrying 72 tank cars, each filled with 30,000 gallons of Bakken crude oil in Lac-Mégantic, Quebec, that killed 47 people. PHMSA will accept comments on the proposed rules until September 30, 2014 79 FR 45015 (Aug. 1, 2014).  Given the extensive comments received on the Advanced Notice of Proposed Rule Making (ANPRM), the agency has indicated it does not intend to extend the comment period.   Read More ›

What’s New Under the Food Safety Modernization Act?

The FDA Food Safety Modernization Act (FSMA), enacted in 2011, shifted the focus of the Food and Drug Administration (FDA) from responding to food contamination incidents to preventing contamination from occurring.[1] FSMA amends the Federal Food, Drug, and Cosmetic Act (FFDCA) as it applies to the food supply, and provides FDA with new authority to regulate food. This alert outlines the major provisions of FSMA applicable to industry and FDA’s efforts to implement these provisions. Read More ›

EPA Issues Preliminary Guidance on Its Interpretation and Implementation of UARG v. EPA

In a memo sent to Regional Administrators on July 24 (“Memo”), EPA’s Offices of Air and Radiation and Enforcement and Compliance Assurance provided a first look at how the Agency is interpreting its PSD and Title V permitting authority following the Supreme Court’s recent decision in Utility Air Regulatory Group v. EPA. Many questions remain unanswered, but the Agency did provide its guidance on the following:

  1. EPA confirmed that it will no longer require sources to apply for PSD and Title V permits on the basis of greenhouse gas (“GHG”) emissions alone (so-called “non-anyway” or “Step 2” sources);
  2. EPA re-established 75,000 tons per year (“tpy”) as the threshold for triggering BACT requirements for GHG emissions from sources that trigger PSD requirements on the basis of emissions of conventional pollutants (so-called “anyway” sources); and
  3. EPA set forth its view that state permitting authorities may continue to require non-anyway sources to obtain PSD and Title V permits if there is independent state authority to do so. 
Read More ›

Supreme Court Says CERCLA Does Not Preempt Repose Defense for Tort Claims

The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from certain contaminated sites. CTS Corp. v. Waldburger, No. 13-339 (June 9, 2014). Specifically, the Court considered whether Section 309 of the Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as the Superfund law or CERCLA), which preempts a state “statute of limitations,” also preempts a state statute of repose. In a 7-2 decision, the Court held it does not, reversing a Fourth Circuit ruling and resolving a split in the lower courts.  Read More ›

Iowa Supreme Court Rules Pollution Suit Not Preempted by Clean Air Act

Striking a blow to defendants seeking to limit the scope of toxic tort claims based on air emissions, the Iowa Supreme Court ruled that a putative class action filed by residents asserting tort claims against a corn milling facility was not preempted by the federal Clean Air Act (CAA) or Iowa state law. The court also refused to dismiss the case based on the political question doctrine. See Freeman v. Grain Processing Corp., No. 13-0723 (Iowa June 13, 2014).  Read More ›

Jury Awards Nearly $3 Million in First U.S. Toxic Tort Verdict Related to Fracking

Although the torrent of toxic tort litigation related to hydraulic fracturing that many predicted has not materialized, the first jury award for toxic tort claims relating to hydraulic fracturing operations has now been handed down. A Dallas jury found that Defendant Aruba Petroleum, Inc. intentionally interfered with homeowners’ use of their property in Fort Worth by drilling natural gas wells on neighboring property, causing personal injury and property damage. See Parr v. Aruba Petroleum, Inc., No. CC-11-01650-E (Dallas Co. Ct. at Law, jury verdict June 19, 2014).  Read More ›

New York High Court Finds Expert Failed to Satisfy Causation Requirement

In a decision that reaffirms the importance of expert testimony, New York’s highest court ruled that a plaintiff’s expert had failed to establish either general or specific causation such that the plaintiff could withstand summary judgment. See Cornell v. 360 W. 51st Street Realty, LLC, 2014 NY Slip Op 02096 (N.Y. March 27, 2014). The case arose out of a woman’s claim that exposure to dampness and mold in her apartment caused her to suffer a variety of physical symptoms, which eventually forced her out of her apartment. She filed suit against her landlord and other related entities, claiming personal injuries, property damage, and constructive eviction, among other causes of action. Read More ›

New York High Court Limits Requirements for Early Medical Evidence

A recent ruling by New York’s highest court may make it somewhat easier for toxic tort plaintiffs to survive early motions practice in New York. The New York Court of Appeals ruled that lead-based paint plaintiffs were not required to have a medical professional causally connect their injuries to lead exposure in order to bring a claim. Hamilton v. Miller, Case Nos. 113 & 114 (N.Y. June 12, 2014). The decision still squarely places the burden of proof with plaintiffs, however, and may require plaintiffs to hire an expert during discovery to meet their burden.  Read More ›