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Showing 19 posts by Eric L. Klein.

D.C. Circuit Invalidates Part of the RCRA Definition of “Solid Waste,” Altering the Regulatory Framework for Recycling of Hazardous Secondary Materials

On July 7, 2017, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or the “Court”) issued a decision invalidating two key elements of the regulatory definition of solid waste under the Resource Conservation and Recovery Act (“RCRA”), as amended by the U.S. Environmental Protection Agency (“EPA” or the “Agency”) in 2015, and rejecting efforts to impose additional conditions on existing exclusions in the hazardous waste program.  See American Petroleum Institute v. EPA, 2017 WL 2883867, No. 09-1038 (D.C. Cir.); 80 Fed. Reg. 1694 (January 13, 2015) (EPA’s “Final Rule” revising the definition of solid waste). The definition is a cornerstone of the RCRA hazardous waste regulatory program, inasmuch as it specifies when recyclable materials may be classified as solid wastes and thus potentially hazardous wastes subject to the hazardous waste regulatory program promulgated by EPA under RCRA Subtitle C.  The Court decision upends a significant part of the RCRA regulatory scheme, has broader implications for the hazardous waste program and beyond, and creates implementation issues at the federal and state level that will likely take years to sort out.  Don Patterson of Beveridge & Diamond (“B&D”) presented oral argument on behalf of the National Mining Association and other Industry Intervenors in opposition to Environmental Petitioners’ challenge, and Eric Klein, another B&D principal, joined Don on the Industry Intervenors’ brief.    Read More ›

Federal Court Dismisses Some of Seattle’s PCB Tort Claims

In a blow to the efforts of municipal plaintiffs to pursue environmental damages through product liability theories, a Washington federal court granted Monsanto’s motion to dismiss Seattle’s design defect and failure to warn claims for damages to the city’s waterways and lands caused by polychlorinated biphenyls (PCBs). See City of Seattle v. Monsanto Co., 16-cv-00107 (W.D. Wash. Feb. 22, 2017). The court, however, allowed the city’s negligence and public nuisance claims to proceed. Read More ›

Illinois Appellate Court Allows Rare “Prospective Nuisance” Claim to Proceed Against Mining Facility

Addressing the relatively uncommon “prospective nuisance” claim, an Illinois appeals court found a group of landowners pleaded sufficient facts to show that a new sand mining operation would result in a nuisance if constructed. See Whipple v. Vill. of N. Utica, 3-15-0547 (Ill. App. Ct., Mar. 9, 2017). The court reversed the trial court’s decision and found that the landowners could proceed with a claim to enjoin construction of the facility Read More ›

Applying Product Liability Theory, Washington State Sues for PCB Damages

In an effort to use product liability theories to hold manufacturers culpable for environmental releases, the Attorney General of Washington State sued PCB manufacturer Monsanto in state court in December.  See Complaint, Washington v. Monsanto, No. 16-2-29591-6 (King Co. Super. Ct. Dec. 16, 2016).  The suit is the first to apply product liability theories honed in more than a decade of MTBE litigation to allegations of statewide PCB contamination in waterways. Read More ›

No Exception for Latent Disease in N.C. Statute of Repose

Highlighting an area of unsettled law in North Carolina toxic tort litigation, a federal district court in the Eleventh Circuit held that the pre-2014 North Carolina statute of repose contained no exception for latent disease, barring disease-based toxic tort suits ten years after they accrue. Specifically, the U.S. District Court in Georgia held that North Carolina's ten-year statute of repose barred the claims of U.S. Marine Corps service members and their families in a multidistrict litigation (MDL) based on personal injury allegedly resulting from exposure to contaminated drinking water. See In re: Camp Lejeune North Carolina Water Contamination Litigation, No. 1:11-MD-2218, 2016 WL 7049038 (N.D. Ga. Dec. 5, 2016). Read More ›

D.C. Remediation Contract Can Trigger Duties to Third Party at Construction Site

In a case highlighting common-law tort duties that can arise from contractual relationships, an environmental contractor at a construction site may be liable to a subcontractor's employee who claims he was injured when exposed to petroleum contamination, according to a federal court in Washington, D.C. See Parker v. John Moriarity & Assoc., No. 15-cv-01506 (D.D.C. Dec. 14, 2016). Read More ›

California Court Blocks Local Measure Banning Ground Application of Biosolids

In a victory for municipalities that recycle biosolids to farmland, Los Angeles’ sanitation district prevailed in its suit against a Kern County initiative banning land application of biosolids. See County Sanitation Dist. No. 2 of Los Angeles County, et al. v. Kern County, 2016 WL 7175653 (Tulare Co. Super. Ct. Nov. 28, 2016).  Defendant Kern County approved Measure E on June 6, 2006, prohibiting the land application of biosolids (treated municipal wastewater sludge) in unincorporated Kern County.  After a two-week bench trial, the Superior Court for Tulare County invalidated Kern County's ban on the grounds that the county had exceeded its police power and the ban was preempted by state law. Read More ›

First-Ever Federal Labeling Requirements for Bioengineered Foods Signed Into Law

On July 29, President Obama signed into law a bill establishing first-ever federal requirements for the labeling of food containing genetically engineered ingredients.  The bill, known as S.764, directs the U.S. Department of Agriculture (USDA) to issue rules to establish mandatory labeling requirements for so-called “bioengineered foods.”  In preparing its new regulations, USDA must determine the threshold levels of a bioengineered substance that will subject a food to the labeling requirements and develop a process for manufacturers and others to obtain a determination from the Agency concerning the status of a given food item under the new program. USDA must issue these rules within the next two years, and food manufacturers, technology developers, and other interested parties are expected to have opportunities to submit comments throughout the rulemaking process. Read More ›

Eric Klein Quoted on Use of Freedom of Information Act to Challenge EPA in Bloomberg BNA

Eric Klein, a Principal and litigator in Beveridge & Diamond's Washington, DC office, was quoted in a Bloomberg BNA Daily Environment Report article titled "Companies Turn to FOIA to Challenge EPA Cleanups." Read More ›

Maryland Court of Appeals OKs Circumstantial Causation Evidence in Lead Paint Cases

In a case that may make it easier to prove causation in Maryland lead paint cases, the Maryland Court of Appeals held that neither direct evidence of the source of lead nor expert testimony was necessary when a trier of fact had sufficient circumstantial evidence to conclude that the subject property was the “reasonable probable” source of lead exposure.  See Rowhouses, Inc. v. Smith, 133 A.3d 1054 (Md. 2016) Read More ›