Highlights from the July/August 2016 Issue of the Chemical Waste Litigation Reporter

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The most noteworthy decisions this month are the following:

  • In WildEarth Guardians v. EPA, Case No. 14-1145 (D.C. Cir. July 29, 2016), in a case where the D.C. Circuit held that particulate matter 2.5 (PM-2.5) is subject to a different and stricter statutory framework than the EPA had originally applied, and the agency accordingly adjusted certain statutory deadlines by rule so that states would not miss deadlines about which they could not have known and which did not apply under the original framework, the D.C. Circuit dismissed as moot an environmental group’s petition challenging this rule as applied to a 1997 PM-2.5 standard, and denied this petition on the merits as applied to a 2006 PM-2.5 standard, holding that
  • In Pakootas v. Teck Cominco Metals, Ltd., No. 15-35228, D.C. No. 2:04-cv-00256-LRS (9th Cir. July 27, 2016), in a case of first impression, a three-judge panel of the United States Court of Appeals for the Ninth Circuit unanimously held that hazardous substances contained in airborne emissions do not constitute a “disposal” within the meaning of CERCLA even after they come to rest on or in the land or water. Reversing the district court’s holding on that issue, the appellate court determined that the owner-operator of a lead smelter was not liable as an “arranger” under CERCLA for the disposal of hazardous substances emitted from its smokestack. Though the court described plaintiffs’ interpretation of CERCLA as plausible under CERCLA’s text and structure, and consistent with the ordinary dictionary definition of “disposal,” it found the reasoning of two previous decisions within the circuit to be persuasive and on-point.
  • In Ohio Valley Environmental Coalition, Inc. v. U.S. Army Corps of Engineers, No. 14-2129 (4th Cir. July 8, 2016), Judge Duncan, writing for the Fourth Circuit Court of Appeals, affirmed the district court’s grant of summary judgment in favor of the Army Corps of Engineers in a challenge to a § 404 permit. Plaintiffs claimed that the Corps’ environmental review violated both NEPA and the Clean Water Act (CWA) by failing to consider the health-related impacts of surface coal mining. Consistent with its own precedent, the Fourth Circuit held that the Corps’ review was properly limited to the effects of the permitted discharge activity alone. The proper agency to consider overall public health implications of surface coal mining was the West Virginia Department of Environmental Protection (WVDEP), which had exclusive jurisdiction to issue an operating permit under the Surface Mine Control and Reclamation Act (SMCRA).
  • In AmeriPride Services, Inc. v. Valley Industrial Services, Inc., No. 2:00-cv-MCE-EFB (E.D. Cal. July 13, 2016), the federal district court for the Eastern District of California granted, in large part, a previously non-settling defendant’s motion for summary judgment.
  • In Meyer v. Kalanick, No. 15 Civ. 9796 (S.D.N.Y July, 29, 2016), the Defendant, Uber, filed a motion to compel arbitration in an anti-trust lawsuit, arguing that the plaintiff consented to binding arbitration when he registered to use the mobile ride-sharing application. At issue is whether the contract provided the plaintiff with “reasonably conspicuous notice” of the contract terms and whether the plaintiff manifested assent to those terms. The court ultimately concluded that the manner in which Uber presented its “Terms of Service” did not put the plaintiff on notice that by using the application, he agreed to binding arbitration, effectively waiving his right to a jury trial. In particular, the court noted the following deficiencies in Uber’s registration process: (1) the plaintiff’s consent to the contract terms, including the arbitration clause, was not a condition of using the Uber application; (2) the contract terms did not appear on the user’s screen and could only be accessed by clicking through two sets of hyperlinks; and (3) the size and placement of the hyperlink to the user agreement was considerably less prominent than other prompts on the registration screen. Therefore, the court held that the arbitration clause was not binding on the plaintiff, finding that Uber failed to provide reasonable notice of contract terms.
  • In Mendoza v. Monsanto, No. 1:16-cv-00406-DAD-SMS (E.D. Cal. July 7, 2016), Judge Drozd of the federal district court for the Eastern District of California ruled that a plaintiff’s state common law claims were not preempted under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Plaintiff brought claims against defendant alleging that she developed non-Hodgkin lymphoma as a result of her use of defendant’s Roundup product, and that defendant failed to warn her. Defendant moved to dismiss arguing that plaintiff’s claims were preempted under FIFRA because they amounted to state rules that were “in addition to or different from” those required by FIFRA. Defendant sought judicial notice of six documents issued by EPA that it argued demonstrated that EPA deemed Roundup to not be carcinogenic. However, the Court held that the documents were not relevant and were not entitled to judicial notice. Accordingly, the plaintiff was allowed to proceed on her claims. Moreover, the court held that claims based on an alleged design defect were not barred by comments j and k to the Restatement (Second) of Torts § 402A.
  • In MPM Silicones, LLC v. Union Carbide Corp., No. 1:11-CV-1542 (BKS/ATB) (N.D.N.Y. July 7, 2016), Judge Sannes, of the federal district court for the Northern District of New York, held that CERCLA claims by an owner of a contaminated site against a prior owner and operator were time-barred. The actions of the previous owners were a part of a lengthy RCRA cleanup process and were carried out more than six years before a tolling agreement between the parties. The Court relied on Second Circuit precedent to find that CERCLA’s statute of limitations may be triggered by the actions of a previous site owner, even before the plaintiff acquired ownership of the site and incurred recoverable costs. The Court also declined to grant defendant summary judgment on its CERCLA counterclaims finding that plaintiff could properly assert a bona fide prospective purchaser defense. The Court also allowed plaintiff to proceed on some of its state law claims.
  • In Concerned Pastors for Social Action v. Khouri, No. 16-10277 (E.D. Mich. July 7, 2016), Judge Lawson, of the federal district court for the Eastern District of Michigan, concluded that a suit by residents of Flint against city and state officials involved in the local drinking water crisis would not interfere with EPA’s ongoing remediation. The court therefore denied defendants’ motion to dismiss, and will allow the suit to go forward. In reaching its decision, the court determined that:


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