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Showing 60 posts by Megan R. Brillault.

NJDEP to Allow Capping as Remedial Option for VOCs with Groundwater Pathways

At the end of August, the New Jersey Department of Environmental Protection (“NJDEP”) issued guidance that allows volatile organic compounds (“VOCs”) released to groundwater to be left in place under certain circumstances; the change could provide considerable cost savings for parties responsible for such releases.  NJDEP’s new guidance will permit capping to be considered as a remedial option for sites with VOC risks or impacts to groundwater.  See Capping of Volatile Contaminants for the Impact to Ground Water Pathway.  The new policy supplements guidance issued in 2014, which allowed for capping of inorganic and semi-volatile organic contaminants under certain circumstances, but had not included VOCs, such as certain gasoline constituents, acetone, benzene, toluene, TCE, PCE, xylenes, and others.  See Capping of Inorganic and Semi-Volatile Contaminants for the Impact to Ground Water Pathway.  VOCs are often found in subsurface contamination at gasoline service stations, dry cleaners, and manufacturing facilities.  Read More ›

New York Extends Statute of Limitations for Personal Injury Damages Caused by Contamination from Superfund Sites

On July 21, 2016, New York Governor Cuomo signed into law New York State Assembly Bill No. A09568, which amends the statute of limitations for filing actions to recover damages for
personal injury caused by contamination from Superfund sites.  The legislation is a result of public concern about the discovery of water contamination in Hoosick Falls, New York, and  Flint, Michigan. Read More ›

Clearing the CERCLA Air: Ninth Circuit Holds Air Emissions Are Not Disposal

In a case of first impression, this week, the Ninth Circuit Court of Appeals
held that the owner of a Canadian smelter was not liable as a person who
“arranged for disposal” of hazardous substances when it emitted those compounds
into the air and the substances were deposited onto land and water downwind. 
Pakootas v. Teck Cominco Metals, No. 15-35228 (9th Cir.
July 27, 2016).  Overturning the district court’s decision, the Court excluded from the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") definition of "disposal," the emission of hazardous substances into the air that are then deposited elsewhere.  The Court relied heavily on the reasoning and analysis from two previous Ninth Circuit decisions to determine that the term “disposal” as construed under CERCLA did not include the passive depositing of compounds onto land or water through emission into the air.  The Court’s holding follows Ninth Circuit precedent that passive migration does not constitute disposal under CERCLA. Read More ›

Megan Brillault Quoted in Bloomberg BNA on Recent Amendments to the Federal Rules of Civil Procedure

Megan Brillault, a Principal in Beveridge & Diamond's New York office and leader of the firm's Litigation practice group, was quoted in a Bloomberg BNA Daily Environment Report titled "Civil Rule Changes Could Affect Environmental Litigation." Read More ›

Texas Supreme Court Rules that CERCLA PRP Letters and Enforcement Proceedings Are “Suits” Subject to the Duty to Defend Under Standard CGL Insurance Policies

On June 26, 2015, the Texas Supreme Court held that enforcement proceedings under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”)—including the issuance of a “PRP letter” notifying the recipient that it is a potentially responsible party—constitute a “suit” subject to the duty to defend under standard commercial general liability insurance policies, joining the substantial majority of courts that have considered the issue. McGinnes Indus. Maint. Corp. v. Phoenix Ins. Co., No. 14-0465 (Tex. June 26, 2015). Read More ›

Maryland High Court Slashes Billion-Dollar Jury Award and Clarifies Toxic Tort Standards

Reversing nearly all of the $1.6 billion in jury verdicts that had been entered against Defendant Exxon Mobil Corporation by lower courts, the Maryland Court of Appeals on February 26, 2013, issued a pair of opinions that may make recovery of damages more difficult for Maryland plaintiffs in toxic exposure cases. Read More ›

New Hampshire Jury Awards State $236M in MTBE Case

Approximately six weeks after getting the Maryland Supreme Court to agree that nearly all of the $1.6 billion in damages awarded by lower courts should be overturned, Exxon Mobil Corporation found itself facing a new toxic tort jury award, this one in favor of the State of New Hampshire in the amount of $236 million. The jury found ExxonMobil responsible for groundwater clean-up costs allegedly associated with the gasoline additive methyl tert-butyl ether (“MTBE”). New Hampshire v. Hess Corp., No. 03-C-0550 (N.H. Sup. Ct. Apr. 9, 2013), available at www.bdlaw.com/assets/attachments/Hess.pdf. The jury found in favor of the State on its failure to warn, design defect and negligence claims. Read More ›

D.C. Court Denies Class Certification in Drinking Water Case

In a significant victory for Defendant D.C. Water and Sewer Authority (“D.C. Water”), which is represented in the action by Beveridge & Diamond, the Superior Court of the District of Columbia denied Plaintiffs’ motion for class certification in a putative class action relating to claims of injuries due to lead allegedly found in drinking water in the city. Parkhurst v. D.C. Water & Sewer Auth., No. 2009 CA 000971 B (D.C. Sup. Ct. Apr. 8, 2013), available at www.bdlaw.com/assets/attachments/Parkhurst.pdf. Read More ›

Supreme Court Shoots Down Stipulated CAFA Caps

In a setback to plaintiffs seeking to get a tactical advantage by litigating in state court, the Supreme Court held that potential class action plaintiffs cannot cap their damages in an effort to avoid the reach of the Class Action Fairness Act (“CAFA”). The Standard Fire Ins. Co. v. Knowles, No. 11-1450 (U.S. Mar. 19, 2013), available at www.bdlaw.com/assets/attachments/Knowles.pdf. CAFA allows defendants to remove to federal court those putative class actions that seek at least $5 million in the aggregate, assuming other factors are satisfied. Knowles, slip op. at 1. In Knowles, the Supreme Court held that potential class-action plaintiffs could not cap their damages in an effort to keep their cases in state court and circumvent CAFA. Id.   Read More ›

Federal Court Certifies Class on Liability Claims Despite Differences Among Class Members on Exposure, Damages

In a limited but significant victory for class action plaintiffs, a federal court in Indiana granted class certification to 1,700 Indiana residents with respect to only the liability portion of their claims against the owners of a wood recycling facility based on alleged exposure to smoke, dust and “extreme noxious odors.” Greene v. Will, 3:09-cv-00510 (N.D. Ind. Jan. 29, 2013), available at www.bdlaw.com/assets/attachments/Greene.pdf. The district court held that the issues of which defendants caused the alleged harm, what chemicals were emitted, and when the chemicals were emitted, could and should be determined on a class-wide basis. Greene. slip. op at 7-9.   Read More ›