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Showing 13 posts in Appellate Litigation.

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 ›

California Appellate Court Upholds “Every Exposure” Theory

Deferring to the role of a jury in resolving questions of competing scientific theories, a California appeals court upheld a trial court’s ruling allowing expert testimony based on the “every exposure” theory, calling it “the subject of legitimate scientific debate.”  See Davis v. Honeywell Int’l Inc., 199 Cal.Rptr.3d 583 (Cal. Ct. App. 2016). Read More ›

Beveridge & Diamond Secures Unanimous Ruling in Pennsylvania Supreme Court Shielding Biosolids Land Application from Tort Claims

Litigators in the Firm’s Washington, DC office secured a unanimous ruling from the Supreme Court of Pennsylvania in favor of Beveridge & Diamond client Synagro and persuaded the Court to hold that land application of biosolids is an agricultural activity shielded from untimely litigation by Pennsylvania’s Right to Farm Act (RTFA).

The Court’s opinion reversed the Pennsylvania intermediate appellate court and resolved critical questions regarding the division of labor between judge and jury, the scope of the RTFA, and the use of biosolids as fertilizer on farms.  In Gilbert v. Synagro Central, ___ A.3d ___, 2015 WL 9282354 (Dec. 21, 2015), the Court unanimously held that (1) application of the RTFA’s statute of repose presents a legal question that only a judge may resolve and (2) biosolids application is a “normal agricultural operation” protected by the RTFA.

The suit arose from farming operations in York County, Pennsylvania.  Neighboring landowners complained of odors from farmers’ use of biosolids—nutrient-rich material produced from sewage sludge—and filed a lawsuit asserting claims of nuisance, negligence and trespass.  The trial court granted the defendants’ motion for summary judgment on the ground that the plaintiff landowners filed their claims outside the RTFA’s one-year statute of repose.  On appeal, the Superior Court of Pennsylvania reversed, holding that whether biosolids application qualified as a “normal agricultural operation” protected by the RTFA required a jury to evaluate the manner in which biosolids had been applied.

The Pennsylvania Supreme Court’s majority and concurring opinions reject the lower court’s rationale in full.  In language with implications for future tort cases, the justices emphasized that the RTFA, like any statute of repose, is jurisdictional and thus, its “applicability is a question for the trial court, not the jury.”  The Court further explained that whether a particular activity, such as biosolids application, falls within the definition of a term used in a statute of repose is to be treated as a question of law that only a judge can resolve.  The opinion makes clear that the RTFA can only function properly if its bar against litigation is not contingent on a jury’s determinations.

The Gilbert decision confirmed that biosolids application is a normal agricultural operation entitled to protection by the RTFA and likely will influence courts across the country in their review of legal issues regarding biosolids recycling to farmland.  Citing numerous statistics and the briefs of a broad coalition of amici, the Court acknowledged the widespread use of biosolids in agriculture in Pennsylvania and America across the country.  This opinion represents a clear statement by a state’s highest court that biosolids use is an accepted and common practice in modern farming that is entitled to protection from untimely and burdensome litigation.

The decision has received extensive media coverage, including articles in Law360, Bloomberg BNA Daily Environment ReportE&E Greenwire, and Waste360 (subscriptions required).  For more information, contact Beveridge & Diamond principal Jimmy Slaughter, who led the defense and argued the case before the Pennsylvania Supreme Court (jslaughter@bdlaw.com, 202.789.6040).

Beveridge & Diamond has represented municipalities and their contractors on biosolids, wastewater and drinking water issues since the Firm’s founding forty years ago.  The Firm’s work includes defense of civil suits and enforcement actions and prosecution of constitutional claims against local ordinances that interfere with biosolids recycling.  Beveridge & Diamond also defends toxic tort lawsuits for public and private sector clients in state and federal courts across the country.

Beveridge & Diamond Argues Before Pennsylvania Supreme Court for Right to Farm Act Protection

Jimmy Slaughter, a litigator in Beveridge & Diamond’s Washington office, argued before the Pennsylvania Supreme Court  for protection from tort lawsuits for farmers and their contractors  under the Pennsylvania Right to Farm Act’s statute of repose. Read More ›

Washington State Supreme Court Declines Review of Beveridge & Diamond Win in Court of Appeals Preempting Biosolids Ban

Jimmy Slaughter, a litigator and Principal in Beveridge & Diamond’s Washington, DC office, was quoted in a Law360 article titled “Washington High Court Won't Revisit Biosolids Ban Reversal.”  The article discusses the Supreme Court of Washington’s decision to decline review of the State Court of Appeals’ ruling that a county ban on applying biosolids to farmland as fertilizer violated the state constitution. Dep't of Ecology v. Wahkiakum County, 337 P.3d 364 (Wn. App. 2014), review denied , 2015 Wash. LEXIS 467 (Wn. 2015). Read More ›

Beveridge & Diamond Secures Approval of $3.7 Billion Clean Water Act Consent Decree

Litigators from Beveridge & Diamond’s Washington and Baltimore offices won approval of a major Clean Water Act consent decree over the objections of environmental groups.  On January 6, 2014 Judge George Marovich of the U.S. District Court for the Northern District of Illinois entered a historic consent decree between the United States, Illinois, and the Metropolitan Water Reclamation District of Greater Chicago (MWRDGC or the District) to govern the ongoing Tunnel and Reservoir Plan (TARP), a multi-billion dollar project to improve stormwater control and wastewater management throughout metropolitan Chicago.   The ruling comes after 7 years of consent decree negotiation with the US Environmental Protection Agency, the Department of Justice, and the State of Illinois, and 3 years of aggressive litigation brought by several environmental groups that sought more work than called for in the decree. Benjamin F. Wilson, Richard Davis and Sarah Albert lead the multi-office team from Beveridge & Diamond that represents MWRDGC regarding the consent decree and the litigation.  Read More ›

Beveridge & Diamond Principal James Slaughter Quoted in Law360 on Pending Supreme Court Case on CERCLA Preemption of Tort Claims

Jimmy Slaughter was quoted in a January 17th, 2014 article appearing in Environmental Law360 and Product Liability Law360 titled “High Court Primed To Limit CERCLA Preemption” regarding a case before the U.S. Supreme Court regarding whether the Superfund law overrides state statutes of repose that limit toxic tort and environmental tort claims.   Read More ›

Greenwire Reports on Beveridge & Diamond Win in California Supreme Court on Solid Waste Preemption Case

Litigators from the Firm’s Washington and California offices defeated the Sierra Club’s effort to secure California Supreme Court review of a Court of Appeal decision striking down a voter initiative that limited solid waste imports into Solano County, California. Sierra Club. v. County of Solano, 2013 WL 3963602 (Ca. Ct. App. July 31, 2013), review denied, Ca. Sup. Ct. No. S212943 (Oct. 23, 2013). The unanimous Court of Appeal decision held that California law preempted the waste import restrictions. The Court also rejected arguments that intervening legislation should not be given effect while the case was on appeal, and denied arguments for preserving the attorney fee award to the environmental petitioners that sought to enforce the voter initiative against Beveridge & Diamond’s client, the Potrero Hills Landfill. Beveridge & Diamond Principal Jimmy Slaughter is quoted in the Greenwire article, which is available here.  

Defense Research Institute Reports on Beveridge & Diamond Appellate Win in Drinking Water Case

DRI, the leading organization for defense lawyers, reports in its latest issue of its online magazine The Voice on the Firm’s recent win in the District of Columbia Court of Appeals. In a unanimous published opinion, the Court affirmed a defense judgment for Beveridge & Diamond client DC Water, agreeing with the trial court that the Plaintiffs failed to prove that that drinking water supplied to apartment buildings owned by the plaintiffs caused pinhole leaks in the plumbing in the buildings. Cormier v. District of Columbia Water & Sewer Authority, ___ A.3d ___, 2013 D.C. App. LEXIS 387 (D.C. 2013). The Court of Appeals’ ruling followed a three week bench trial in District of Columbia Superior Court, reported at Cormier v. D.C. Water and Sewer Authority, 2011 D.C. Super. Lexis 7, 139 DWLR 2157 (D.C. Super. Ct. 2011). . The case centered on extensive expert testimony on water chemistry, water distribution and corrosion science. To read the article, click here.  

Beveridge & Diamond Litigation Victory Featured in Westlaw Journal

Westlaw Journal Environmental’s current issue covers Beveridge & Diamond's recent win for client Waste Connections, securing a unanimous ruling from the California Court of Appeal that California law preempted a voter initiative that sought to limit solid waste imports into Solano County, California. The decision in Sierra Club v. County of Solano, 2013 WL 3963602, also rejected arguments that intervening legislation should not be given effect while the case was on appeal, and rejected arguments for preserving the attorney fee award to the environmental petitioners that sought to enforce the voter initiative against Beveridge & Diamond’s client.   Read More ›