edward casmere, joshua r. more, j. michael showalter, amy ... pdfs/recent... · the world of toxic...

RECENT DEVELOPMENTS IN TOXIC TORTS AND

ENVIRONMENTAL LAW

Edward Casmere, Joshua R. More, J. Michael Showalter,Amy Antoniolli, Bina Joshi, David M. Loring, Ashley L.Thompson, Raghav Murali, Matthew V. Chimienti,Meghan R. McMeel, Shawna Boothe, Davin M. Reust,Mishan Wroe, and Ashley M. Simpson

I. Introduction.............................................................................. 641II. Class Actions ............................................................................ 642

A. Courts Take Differing Views on Whether Self-Identifying Affidavits Are Sufficient to Determine ClassMembership....................................................................... 642

B. Courts Undertake a More Rigorous Analysis ofCommonality at the Class Certification Stage ................ 643

C. Clean Air Act Does Not Preempt Certain State LawClaims ................................................................................ 644

III. Medical Monitoring ................................................................. 644A. New York Declines Opportunity to Create an

Independent Medical Monitoring Claim......................... 644B. First Circuit Requires Significantly Probative Evidence

of Physiological Change to Support Claim for MedicalMonitoring......................................................................... 645

IV. Asbestos .................................................................................... 646

Edward Casmere, Joshua R. More, and J. Michael Showalter are partners in the Chi-cago office of Schiff Hardin LLP. Bina Joshi, David M. Loring, Ashley L. Thompson, Ra-ghav Murali, Matthew V. Chimienti, Shawna Boothe, and Davin M. Reust are associatesand Amy Antoniolli is a staff attorney in the firm’s Chicago office. Ashley M. Simpson isan associate in the firm’s New York office, and Meghan R. McMeel and Mishan Wroe areassociates in the firm’s San Francisco office. Mr. Casmere is a vice-chair of the TIPS ToxicTorts & Environmental Law Committee.

639

A. California Supreme Court to Address Appellate Split onHousehold Duty................................................................ 646

B. Cursory “Should Have Known” Claims Do Not Satisfythe Foreseeability Prong of the Duty Analysis................ 647

C. Ohio Supreme Court Disqualifies Medical ExpertOpinion in Lung Cancer Case ......................................... 647

D. Texas Supreme Court Rejects “Any Exposure” Theory ofLiability in Mesothelioma Cases ...................................... 648

E. Asbestos Claims Not Barred by Workers’ CompensationAct Exclusivity Provision .................................................. 649

F. Transparency in Asbestos Trust Claim Filings ............... 650V. Hydraulic Fracturing ............................................................... 651

A. New York’s Highest Court Weighs in on Viability ofFracking Bans .................................................................... 651

B. Colorado Supreme Court Agrees to Hear Fracking CaseAddressing Plaintiffs’ Requirement to DemonstratePrima Facie Causation Nexus .......................................... 652

C. West Virginia Federal Court Finds Plaintiffs’Causation Evidence Insufficient to WithstandSummary Judgment........................................................... 653

D. Fracking Cases Produce Conflicting Results inTexas.................................................................................. 653

VI. Emerging Product Regulations and Tort Claims .................. 654A. Developments in e-Cigarette Regulations and Litigation 654B. Proposed Regulations for Flame Retardants ................... 654

VII. Punitive Damages..................................................................... 655A. Punitive Damages That Are Double Compensatory

Damages Do Not Offend Due Process ........................... 655B. Punitive Damages Claims Are Now Permissible in New

York City Asbestos Litigation .......................................... 655C. Eastern District of Pennsylvania Determines That

Punitive Damages Awards Are Available in MaritimeClaims of Unseaworthiness, but Not to Seamen’sFamilies.............................................................................. 656

VIII. Resource Conservation and Recovery Act .............................. 656IX. Clean Air Act............................................................................ 657

A. U.S. Environmental Protection Agency’s Clean PowerPlan .................................................................................... 657

B. Clean Air Act Litigation Developments .......................... 6581. U.S. Supreme Court Upholds EPA’s Authority to

Determine the Amount of Interstate Air Pollutionfrom Upwind States ..................................................... 658

2. Notice of Violation Is Not Final Agency Action....... 658

640 Tort Trial & Insurance Practice Law Journal, Winter 2015 (50:2)

3. EPA’s Interpretation of a State ImplementationPlan Controls over a State’s Interpretation of ItsOwn Regulations.......................................................... 659

4. EPA Must Interpret and Apply Its RegulationsConsistently Across the Country................................. 659

5. Court Invokes Clean Air Act Fee Shifting Provisionto Award Defendants over $6.4 Million ..................... 660

6. Supreme Court Finds EPA Overstepped Authority inRegulating Greenhouse Gas Emissions from SmallSources.......................................................................... 660

X. Clean Water Act ...................................................................... 661A. EPA Issues Final 316(b) Rules for Cooling Water Intake

Structures........................................................................... 661B. EPA and U.S. Army Corps of Engineers Jointly Propose

Revised Definition of “Waters of the United States” ..... 661XI. Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA)................................................... 662A. Seventh Circuit Holds Harm at CERCLA Site Is

Theoretically Capable of Apportionment; PermanentInjunction Cannot Be Used to Enforce a CERCLA§ 106(b) Order .................................................................. 662

B. Seventh Circuit Discusses Scope of District Court’sConsideration of Allocation Factors and Holds PRP IsLimited to Contribution Claims ...................................... 663

C. Judicial Review of a Superfund Cleanup Can Proceed inStages ................................................................................. 664

D. Supreme Court Declines to Address Circuit Split onCERCLA Statute of Limitations Issues for ContributionActions ............................................................................... 665

E. Additional Case Law in Circuit Split on Whether aSettlement Must Resolve CERCLA Liability to Triggera PRP’s Right to Bring a Contribution Action ............... 665

F. Sixth Circuit Looks to Four Factors to DetermineWhether Agreement “Resolves Liability” for Purposes ofTriggering a Potentially Responsible Party’s (PRP) Rightto Bring a CERCLA Contribution Action ...................... 666

i. introduction

The world of toxic torts and environmental law continues to be dynamic.The past year has seen changes in many areas, including but not limited tointerpretations of the Resource Conservation and Recovery Act, theClean Water Act, and the Clean Air Act. Courts also considered whether

Toxic Torts and Environmental Law 641

medical monitoring claims can be independently viable causes of actionand whether duties can be owed for unforeseeable injuries in asbestoscases. This article covers new court decisions, proposed and final regula-tions, and interpretations of regulations in the toxic tort and environmen-tal contexts. This article discusses, for example, developments regardingduties owed and causation standards in asbestos-related personal injuryclaims; the Environmental Protection Agency’s first rule regulating car-bon emissions from existing power plants; decisions regarding apportion-ment of harm at Comprehensive Environmental Response, Compensa-tion, and Liability Act sites; and hydraulic fracturing-related litigationactivity—an area that is expanding beyond traditional environmentalclaims into the toxic tort arena. More broadly, this article covers toxictort and environmental law developments in ten areas: class actions, med-ical monitoring, asbestos, hydraulic fracturing, emerging product regula-tions and tort claims, punitive damages, the Resource Conservation Act,the Clean Air Act, the Clean Water Act, and the Comprehensive Environ-mental Response Compensation and Liability Act.

ii. class actions

A. Courts Take Differing Views on Whether Self-Identifying Affidavits AreSufficient to Determine Class Membership

In the last year, six federal courts have weighed in on whether to acceptpurported class action plaintiffs’ self-identifying affidavits as the solemeans of ascertaining class membership.

In McCrary v. Elations Co., LLC, the Central District of California de-termined that such affidavits were sufficient to meet the ascertainabilityrequirement.1 It was enough, according to the court, that the class defini-tion described “a set of common characteristics sufficient to allow” a pro-spective plaintiff to “identify himself or herself as having a right to recoverbased on the description.”2

Five other courts, however, refused to accept self-identifying affidavitsas the sole means of ascertaining class membership, although they reliedon different rationales to reach that decision. In Sethavanish v. ZonePerfectNutrition Co., the Northern District of California declined to rely on self-identifying affidavits, agreeing that such a procedure could invite fraudu-lent or inaccurate claims and undermine the finality of any judgment withrespect to absent class members.3 The Northern District of California ad-dressed the issue again in Jones v. ConAgra Foods, Inc. and decided that the

1. 2014 WL 1779243, at *8 (C.D. Cal. Jan. 13, 2014).2. Id.3. 2014 WL 580696, at *4–6 (N.D. Cal. Feb. 13, 2014).


case fit none of the situations where self-identification may be deemedsufficient.4 The Central District of California,5 the District Court ofNew Jersey,6 and the Third Circuit7 declined to rely on self-identifyingaffidavits because such a practice would deprive defendants of the oppor-tunity to challenge class membership.

B. Courts Undertake a More Rigorous Analysis of Commonality at the ClassCertification Stage

In Georgia-Pacific Consumer Products, LP v. Ratner, the Georgia SupremeCourt decertified a class of plaintiffs who alleged that hydrogen sulfidegas emissions from a neighboring mill, which housed more than a hundredacres of solid waste, caused damage to their property.8 Relying heavily onWal-Mart Stores Inc. v. Dukes,9 the court held that the class failed to pres-ent evidence sufficient to show commonality.10 Anecdotal evidence of cor-rosion on some air conditioning units in the vicinity of the mill was notenough to show questions of law or fact common to the class.11

Similarly, in Parko v. Shell Oil Co., the Seventh Circuit reversed classcertification of a purported class that alleged that an oil refinery had leakedbenzene and other contaminants into the groundwater, causing their prop-erty values to diminish.12 The district court had treated the Federal Ruleof Civil Procedure 23 prerequisites as a pleading requirement and deter-mined that plaintiffs need only show intent to proceed on a common the-ory of causation, injury, and damages, but need not present evidence onfactual disputes bearing on the issue of commonality.13 The Seventh Cir-cuit reversed, holding that the class failed to present evidence sufficient toshow that questions of law or fact common to the class predominated overindividual issues.14 The case was then remanded to the district court tohear evidence addressing “the realism of the plaintiffs’ injury and damagesmodel in light of the defendant’s [commonality arguments].”15

4. 2014 WL 2702726, at *10 (N.D. Cal. June 13, 2014) (stating that cases where self-identification has been deemed sufficient generally involve situations where consumers arelikely to have retained receipts, where the purchase was a memorable big ticket item, orwhere the defendant would have access to a master list of either consumers or retailerswho dealt with the items at issue).

5. In re POM Wonderful LLC, 2014 WL 1225184, at *6 (C.D. Cal. Mar. 25, 2014).6. Stewart v. Beam Global Spirits & Wine, Inc., 2014 WL 2920806, at *3–5 (D.N.J.

June 27, 2014).7. Carrera v. Bayer Corp., 727 F.3d 300, 309 (3d Cir. 2013).8. Georgia-Pac. Consumer Prods., LP v. Ratner, 762 S.E.2d 419, 420–21 (Ga. 2014).9. 131 S. Ct. 2541 (2011).

10. Ratner, 762 S.E.2d at 527.11. Id. at 529–30.12. Parkov. Shell Oil Co., 739 F.3d 1083, 1087 (7th Cir. 2014).13. Id.14. Id. at 1086.15. Id.


C. Clean Air Act Does Not Preempt Certain State Law Claims

In a matter of first impression, the Third Circuit held that that the CleanAir Act, 42 U.S.C. §§ 7401–7671, does not preempt state law tort claimsbrought against a source of pollution located within one state.16 In Bell v.Cheswick Generating Station, property owners brought a putative class ac-tion in state court against a coal-fired electrical generation facility, alleg-ing that the facility emitted harmful odors and deposited ash and otherparticulates on their property.17 The case was removed to federal court,where the district court held that the Clean Air Act preempted the prop-erty owners’ nuisance, negligence, and trespass claims.18 The Third Cir-cuit reversed, relying on the Supreme Court’s decision in InternationalPaper Co. v. Ouellette,19 which addressed whether the Clean Water Actpreempted a state law nuisance action. The Third Circuit determinedthat Ouellette controlled its preemption analysis because the Clean AirAct and Clean Water Act contained virtually identical savings clauseswith no meaningful differences.20

iii. medical monitoring

A. New York Declines Opportunity to Create an Independent MedicalMonitoring Claim

In December 2013, New York’s highest court decided not to create an in-dependent medical monitoring cause of action.21 In Caronia v. Philip Mor-ris USA, Inc., the court decided that a “threat of future harm is insufficientto impose liability against a defendant in a tort context.”22 The court rea-soned that requiring a plaintiff to show physical harm before recoveringmedical monitoring damages makes sense, because that requirement “de-fines the class of persons who actually possess a cause of action, provides abasis for the factfinder to determine whether a litigant actually possesses aclaim, and protects court dockets from being clogged with frivolous andunfounded claims.”23 The court reasoned that creating an independentmedical monitoring cause of action “would lead to the inequitable diver-sion of money away from those who have actually sustained an injury.”24

The decision was not unanimous. Chief Judge Lippman dissented,

16. Bell v. Cheswick Generating Station, 734 F.3d 188, 190 (3d Cir. 2013).17. Id. at 189.18. Id. at 190.19. 479 U.S. 481 (1987).20. Bell, 734 F.3d at 194–97.21. Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439 (N.Y. 2013).22. Id. at 446.23. Id.24. Id. at 451.


arguing that “judicial hesitance and legislative deference only serve tothwart the ends of justice.”25

In February 2014, a New York intermediate appellate court appliedCaronia and held that plaintiffs who actually suffered property damagefrom contamination of soil and groundwater could seek recovery for med-ical monitoring, even absent a showing of physical injury.26 The plaintiffsin Ivory v. International Business Machines Corp. sought medical monitoringas consequential damages in connection with other tort claims, includingtrespass.27 Relying on Caronia’s holding that New York’s tort jurispru-dence does not allow a claim for medical monitoring without evidenceof present physical injury or damages to property,28 the court held thatplaintiffs who allege present property damage may “pursue medical mon-itoring damages consequential to the trespass cause of action.”29

B. First Circuit Requires Significantly Probative Evidence of PhysiologicalChange to Support Claim for Medical Monitoring

Applying Massachusetts law, the First Circuit affirmed summary judg-ment against class action plaintiffs who failed to establish a medical mon-itoring claim on the grounds that no members of the plaintiff class hadsuffered subcellular change from their alleged exposure to beryllium.30

In Genereux v. Raytheon Co., the plaintiffs sought medical monitoringfor themselves and their families after Raytheon allegedly negligently ex-posed the plaintiffs to beryllium used in the company’s manufacturingprocess.31 An earlier Massachusetts case, Donovan v. Philip Morris USA,Inc., had established that medical monitoring costs are recoverable as anindependent cause of action if a plaintiff can make a showing that“there has been at least a corresponding subcellular change.”32 In Gener-eux, the First Circuit applied Donovan and held that absent any “signifi-cantly probative evidence” of physiological change, defendants were enti-tled to summary judgment.33 Unlike the Donovan plaintiffs, who “sufferedsubcellular harm which necessarily mean[t] increased risk of lung can-cer,”34 the Genereux plaintiffs “share[d] no such universal harm” andtherefore, could not demonstrate a definitive increased risk of future

25. Id. at 452.26. Ivory v. Int’l Bus. Mach. Corp., 116 A.D.3d 121, 132 (N.Y. App. Div. 2014).27. Id. at 130.28. Caronia, 22 N.Y.3d at 452.29. Ivory, 116 A.D.3d at 132.30. Genereux v. Raytheon Co., 754 F.3d 51, 56 (1st Cir. 2014).31. Id.32. Donovan v. Philip Morris USA, Inc. (Donovan I), 914 N.E.2d 891, 901 (Mass. 2009).33. Genereux, 754 F.3d at 59.34. Donovan v. Philip Morris USA, Inc. (Donovan II), 268 F.R.D. 1, 16 (D. Mass. 2010).


disease.35 Because plaintiffs in Genereux did not preserve the issue ofwhether increased risk of injury alone was enough to permit recovery,the First Circuit refused to address that issue on appeal.36

iv. asbestos

A. California Supreme Court to Address Appellate Split on Household Duty

In August 2014, the California Supreme Court granted review in twohousehold exposure cases: Kesner v. Superior Court,37 a negligence caseagainst an employer, and Haver v. BNSF Railway Co.,38 a premises liabilitycase. The decisions conflicted regarding whether asbestos defendantsowed a duty to household-exposed plaintiffs.

The California Court of Appeal decided Kesner first, reversing the trialcourt’s nonsuit.39 Between 1973 and 1979, the plaintiff ’s uncle was em-ployed by Pneumo Abex; during that time the plaintiff stayed at his un-cle’s house a couple of nights each week.40 The court assumed thatAbex knew generally of the risks of household asbestos exposure but de-termined that the extent of its knowledge at the time was a question of factfor the jury.41 The court distinguished the 2012 decision in Campbell v.Ford,42 which held that a property owner has no duty to protect familymembers of workers on its premises from secondary asbestos exposure,on the grounds that the passive involvement of a plant owner was unlikethe role of employer.43

Months later, the court held in Haver that the wife of an employee whoworked at BNSF during the 1970s is owed no duty of care in a premisesliability case even though BNSF purportedly “knew at all times of thedanger of asbestos exposure, including secondary exposure to the spousesof its employees.”44 This decision followed Campbell and distinguishedKesner on the grounds that it was a negligence, rather than a premises li-ability, case.45

35. Genereux, 754 F.3d at 56.36. Donovan II, 268 F.R.D. at 57–59.37. 171 Cal. Rptr. 3d 811, review granted and opinion superseded sub nom. Kesner v. S.C.

(Pneumo Abex LLC), 331 P.3d 179 (Cal. 2014).38. 172 Cal. Rptr. 3d 771, as modified ( June 23, 2014), review granted and opinion superseded

sub nom. Haver v. BNSF Ry. Co., 331 P.3d 179 (Cal. 2014).39. Kesner, 171 Cal. Rptr. 3d at 815–16.40. Id. at 813.41. Id. at 817.42. 141 Cal. Rptr. 3d 390 (Cal. 2012).43. Id. at 816.44. Haver, 172 Cal. Rptr. 3d at 773.45. Id. at 774.


B. Cursory “Should Have Known” Claims Do Not Satisfy the ForeseeabilityProng of the Duty Analysis

In Gillen v. Boeing Co., the MDL-875 Court in the Eastern District ofPennsylvania held that Boeing did not owe a duty of care to the wife ofa Boeing worker.46 In granting Boeing’s motion to dismiss, the court con-sidered the relationship between the parties, the social utility of the actors’conduct, the foreseeability of harm, and public policy.47 The court con-cluded that the two parties were “legal strangers” and that the public pol-icy concerns associated with expanding liability were great: there wouldbe a limitless number of potential plaintiffs, including “children, babysit-ters, neighbors, dry cleaners, or any other person who potentially came incontact with [the worker’s] clothes.”48

Similarly, a Georgia trial court refused to extend a duty under strict li-ability to a pipefitter’s daughter who claimed exposure to asbestosthrough laundering her father’s clothes between 1969 and 1973.49 Thecourt reasoned that a manufacturer’s duty to warn extends only to ordi-nary consumers and users of the product, and the daughter was neither.50

An Oklahoma district court likewise granted summary judgment to anemployer due to a lack of foreseeability and policy considerations, holdingthat the defendant owed no duty of care to the employee’s wife.51 Thecourt specifically rejected the proposition that the injury from householdexposure to asbestos was foreseeable when the alleged exposure occurredin 1959.52

C. Ohio Supreme Court Disqualifies Medical Expert Opinionin Lung Cancer Case

Ohio’s statutory scheme governing asbestos cases imposes certain re-quirements on lung cancer plaintiffs who have smoking histories.53 Insuch cases, plaintiffs must submit a report within thirty days of filing alawsuit showing the prima facie evidence of the exposed individual’s phys-ical impairment.54 The evidence must include a “diagnosis by a

46. 2014 WL 4211354, at *5–6 (E.D. Pa. Aug. 26, 2014).47. Id. at *2–5.48. Id. at *4.49. Fletcher v. Water Applications Distrib. Grp., Inc., 13-cv-75 (Ga. Super. Ct. July 14,

2014).50. Id. (citing Rohrbach v. Owens-Corning Fiberglas Corp., 965 F.2d 844 (10th Cir. 1992)).51. Bootenhoff v. Hormel Foods Corp., 2014 WL 3744011, at *14 (W.D. Okla. July 30,

2014).52. Id. at *10–11 (specifically disregarding the testimony of plaintiff ’s asbestos expert Dr.

Barry Castleman, and finding that the Walsh-Healey Act did not provide a means for estab-lishing that household exposure was foreseeable when the alleged exposure occurred in1959).53. OHIO REV. CODE ANN. § 2307.92(C)(1) (West 2014).54. OHIO REV. CODE ANN § 2307.93.


competent medical authority that the exposed person has primary lungcancer and that exposure to asbestos is a substantial contributing factorto that cancer.”55

In Renfrow v. Norfolk South Railway Co.,56 the plaintiff ’s decedentsmoked a pack and a half of cigarettes per day for fifty years and allegedexposure to asbestos as a railroad brakeman.57 The plaintiff included inher affidavit a report from Dr. Laxminarayana C. Rao, a board-certifiedpulmonologist and internist who had not treated the decedent.58 To bea “competent medical authority,” the Ohio statute requires that a medicaldoctor (1) be a “board certified internist, pulmonary specialist, oncologist,pathologist, or occupational medicine specialist”; (2) “actually be treatingor have treated and have or had a doctor-patient relationship with the ex-posed person”; (3) not have relied on expert or other reports of third par-ties; and (4) “spend not more than 25 percent of his professional practicein consulting or providing expert services. . . .”59 The court ruled that Dr.Rao was not a “competent medical authority” as defined by the statute,noting that Dr. Rao had never actually treated the decedent, nor did heever have a doctor-patient relationship with him.60

D. Texas Supreme Court Rejects “Any Exposure” Theory of Liabilityin Mesothelioma Cases

The Texas Supreme Court rejected the “any exposure” theory and ex-tended the substantial factor causation test to mesothelioma cases in Bosticv. Georgia-Pacific Corp.61 In Bostic, the Texas Supreme Court affirmed re-versal of a jury verdict in favor of the plaintiff, holding that the evidence ofcausation was insufficient to support the verdict.62 Referring to its deci-sion in Borg-Warner Corp. v. Flores,63 which applied the substantial factortest in asbestosis cases, the Bostic court extended the Flores substantial fac-tor test to mesothelioma cases.64 The court held that “establishingcausation-in-fact against a defendant in an asbestos-related disease caserequires scientifically reliable proof that the plaintiff ’s exposure to the de-fendant’s product more than doubled his risk of contracting the dis-ease.”65 The court further held that the dose of asbestos to which a

55. OHIO REV. CODE ANN § 2307.92(C)(1)(a).56. 18 N.E.3d 1173 (Ohio 2014).57. Id. at 1175.58. Id.59. Id. at 1182 (citing OHIO REV. CODE ANN. § 2307.91(Z)).60. Id. at 1179 (citing OHIO REV. CODE ANN § 2307.91(Z)(2)).61. 439 S.W.3d 332, 336 (Tex. 2014).62. Id. at 336.63. 232 S.W.3d 765 (Tex. 2007).64. Bostic, 439 S.W.3d at 342.65. Id. at 350.


plaintiff is exposed must be quantified, but need not be established withmathematical precision.66 A defendant’s product is not a substantial factorif, in light of evidence of other exposures, reasonable persons would notregard the product as a cause of the disease.67 The court rejected “butfor” causation in favor of the substantial factor test.68

The Bostic plaintiffs unsuccessfully argued that Flores was distinguish-able because the development of asbestosis requires a heavy dose of asbes-tos exposure, while mesothelioma could develop from a much lowerdose.69 Rejecting that argument, the court held that the “some exposure”or “any exposure” theories of causation were insufficient in mesotheliomacases.70 Such a low standard, the court reasoned, would result not only instrict liability, but also absolute liability for any manufacturer of anyasbestos-containing product that a plaintiff may have encountered in hisor her lifetime.71

E. Asbestos Claims Not Barred by Workers’ CompensationAct Exclusivity Provision

The Pennsylvania Supreme Court dramatically increased the potential li-ability of employers for employees’ latent occupational diseases in Tooey v.AK Steel Corp., in which two former employees sued for workplace asbes-tos exposure more than 300 weeks after their last date of employment.72

The Supreme Court of Pennsylvania held that the exclusivity provision ofthe Pennsylvania Worker’s Compensation Act did not apply to diseasesfirst manifesting after 300 weeks and thus did not bar the former employ-ees’ claims.

Similarly, the Illinois Appellate Court held that asbestos-related claimsof long latency fit an exception to the exclusivity bar provided by the Il-linois Workers’ Compensation Act.73 In Folta v. Ferro Engineering, theplaintiff ’s decedent was diagnosed with mesothelioma forty-one yearsafter employment.74 By that point, the plaintiff ’s decedent’s workers’compensation claims were time-barred by the Workers’ CompensationAct’s twenty-five-year statute of repose.75 The court held that becauseof the significant latency period of the disease, an exception to the

66. Id. at 353.67. Id.68. Id. at 344.69. Id. at 338.70. Id.71. Id.72. 81 A.3d 851, 855–56 (Pa. 2013).73. Folta v. Ferro Eng’g, 14 N.E.3d 717, 724 (Ill. App. Ct. 2014) (citing Meerbrey v. Mar-

shall Field & Co., Inc., 564 N.E.2d 1222 (Ill. 1990)).74. Id. at 719.75. Id.


exclusivity rule allowed the plaintiff to bring a common law action againsthis employer.76 The Illinois Supreme Court has granted Ferro Engineer-ing leave to appeal this decision.77

F. Transparency in Asbestos Trust Claim Filings

In In Re Garlock Sealing Technologies, LLC, the bankruptcy court determin-ing the valuation of Garlock’s future asbestos liabilities analyzed the prac-tices related to bankruptcy trust filings by plaintiffs in asbestos litiga-tion.78 The court reviewed Garlock’s asbestos litigation history,including the claiming patterns against it in litigation, and how it was ul-timately forced to seek bankruptcy protection.79

The court scrutinized the interplay between the claims made by plain-tiffs against Garlock in the tort system and the claims made by those sameplaintiffs against bankruptcy trusts that operated outside the tort system.80

The court permitted discovery on the litigation/trust submission claimsissue in fifteen lawsuits filed against Garlock prior to its bankruptcy fil-ing.81 In each of those fifteen cases, the plaintiffs filed multiple trust sub-missions after litigation and failed to disclose evidence supporting theclaims evidence to the tort system defendants such as Garlock.82 The Gar-lock court outlined several lawsuits in which plaintiffs chose to withholdbankruptcy trust submissions, obtained settlements with viable defen-dants, and then proceeded to file multiple claims often with affidavitsthat contradicted the evidence presented in the course of the lawsuits.83

The court found that “many plaintiffs’ firms to delay filing trust claimsfor their clients so that their remaining tort system defendants wouldnot have that information.”84

The Garlock decision is not alone in its push to increase bankruptcytrust transparency. A Missouri state court ordered a plaintiff to provideinformation regarding settlement with asbestos trusts to tort system de-fendants.85 The defendants in the Missouri action had argued that disclo-sure of the claims information was necessary to discover the plaintiff ’s de-cedent’s complete exposure history.86 The court agreed, ruling that “such

76. Id. at 726.77. Folta v. Ferro Eng’g, 20 N.E. 3d 1253 (Ill. Sept. 24, 2014).78. 504 B.R. 71, 82–87 (2014).79. Id. at 73.80. Id. at 82–87.81. Id. at 84–85.82. Id. at 85.83. Id. at 84–85.84. Id. at 84.85. Memorandum and Order, Twisselman v. BorgWarner Morse TEC, Inc., No. 1322-

CC-01233, at 3 (Mo. Cir. Ct. July 23, 2014).86. Id. at 2.


information should be disclosed in the interests of the administration ofjustice, as the national scope and interplay of asbestos claims warrants ju-dicial scrutiny of a party’s filing of multiple claims in multiple forums, soas to protect the integrity of the judicial process.”87

State legislatures have also addressed the issue of transparency in theasbestos trust claiming process. Wisconsin now requires a plaintiff to pro-vide to all parties a sworn statement identifying each personal injury claimthe plaintiff has filed or anticipates filing against an asbestos trust withinforty-five days of filing an action.88 Within sixty days of filing, a plaintiffmust provide a copy of each executed proof of a claim against an asbestostrust; all documents relating to the settlement of a claim (if the claim issettled); and a list of each claim the plaintiff reasonably anticipates filingagainst an asbestos trust, including the amount the plaintiff anticipatesclaiming against the trust.89 The plaintiff has an ongoing duty to supple-ment this information.90 All trust claims materials are admissible in evi-dence and not subject to any privilege, and defendants may seek discoveryagainst asbestos trusts in asbestos cases.91 Wisconsin defendants mayidentify trusts not named by the plaintiff against which the defendant be-lieves the plaintiff may have a claim, and the court may order a plaintiff tofile a claim with that trust.92 Plaintiffs must credit liable defendants withcertain amounts received from asbestos trusts when determining verdictpayments.93 Plaintiffs who fail to provide information in accordancewith the statute are subject to sanctions,94 including possible attorneyfees.95

v. hydraulic fracturing

A. New York’s Highest Court Weighs in on Viability of Fracking Bans

New York’s high court held that towns could use local zoning ordinancesto ban hydraulic fracturing.96 Wallach v. Town of Dryden involved two con-solidated cases.97 The town in each case argued that it had authority to banhydraulic fracturing under a New York law allowing towns to enact zoningordinances to foster the “health, safety, welfare, or the general morals of

87. Id. at 2–3.88. WIS. STAT. ANN. § 802.025(2)(a) (2014).89. WIS. STAT. ANN. § 802.025(2)(b).90. WIS. STAT. ANN. § 802.025(2)(c).91. WIS. STAT. ANN. § 802.025(3).92. WIS. STAT. ANN. § 802.025(4).93. WIS. STAT. ANN. § 802.025(6).94. WIS. STAT. ANN. § 802.025(7).95. WIS. STAT. ANN. § 804.12(4).96. Wallach v. Town of Dryden, 16 N.E.3d 1188 (NY. 2014).97. Id. at 1191.


the community.”98 The defendants argued that the New York legislatureenacted a subsequent statute providing for the comprehensive regulationof energy, which contained a preemption clause and displaced all localzoning ordinances.99 Alternatively, the defendants argued that, at a mini-mum, the state statute did not allow for local zoning laws that entirelybanned or forbid hydraulic fracturing.100 New York’s high court agreedwith the towns, holding that the subsequent state statute, enacted long be-fore the hydraulic fracturing debate developed, did not evidence a clear in-tent to preempt all local zoning laws directed at energy companies.101

B. Colorado Supreme Court Agrees to Hear Fracking Case AddressingPlaintiffs’ Requirement to Demonstrate Prima Facie Causation Nexus

The Colorado Supreme Court agreed to hear a case addressing plaintiffs’requirement to demonstrate prima facie nexus of causation in hydraulicfracturing cases.102 In Strudley v. Antero Resources Corp., the plaintiffsbrought common law negligence, nuisance, strict liability, trespass, andmedical monitoring claims against the defendants, alleging that their op-eration of natural gas wells within one mile of the plaintiffs’ property con-taminated the plaintiffs’ wells with harmful chemicals.103 The trial courtissued a so-called Lone Pine order,104 requiring the plaintiffs before dis-covery to detail their alleged injuries and damage and show at least min-imal evidence of causation.105 In May 2012, the trial court granted the de-fendants’ motion to dismiss, holding that the plaintiffs did not meet theirburden of making a prima facie showing that their exposure to the chem-icals had caused their alleged injuries.106 The Colorado Court of Appealsreversed, holding that the trial court erred in issuing the Lone Pine order,because such an order went against the broader policy that conflictsshould be resolved in favor of discovery.107 On April 7, 2014, the

98. Id. at 1194 (quoting N.Y. TOWN LAW § 261 (McKinney)).99. Id. at 1198 (citing N.Y. ENVTL. CONSERV. LAW § 23-0303 (McKinney) (the preemp-

tion clause reads as follows: “The provisions of this article shall supersede all local laws orordinances relating to the regulation of the oil, gas and solution mining industries. . . .”)).100. Id. at 1201.101. Id. at 1203.102. Antero Res. Corp. v. Strudley, 2014 WL 1357327, at *1 (Colo. Apr. 7, 2014).103. Strudley v. Antero Resources Corp., 2012 WL 1932470, at *1 (Colo. Dist. Ct.

May 9, 2012).104. “Lone Pine orders” are issued in mass toxic tort cases, requiring plaintiffs to demon-

strate (1) the identity of the chemical or substance that caused the alleged injury, (2) the spe-cific injury allegedly caused by the substance, and (3) a causal link between exposure and theinjury. Lore v. Lone Pine Corp., 1986 WL 637507, at *2 (N.J. Super. Ct. Law Div. Nov. 18,1986).105. Strudley, 2012 WL 1932470, at *1–2.106. Id. at *4.107. Strudley v. Antero Resources, 2013 WL 3427901, at *1, 3–4 (Colo. Ct. App. July 3,

2013).


Colorado Supreme Court granted the defendants’ petition for writ ofcertiorari.

C. West Virginia Federal Court Finds Plaintiffs’ Causation EvidenceInsufficient to Withstand Summary Judgment

A West Virginia federal court granted summary judgment to the defen-dant, finding that the plaintiffs’ evidence was insufficient to prove thattheir drinking water was contaminated by methane released from Marcel-lus Shale drilling operations.108 After the plaintiffs voluntarily dismissedtheir punitive damages and statutory claims, the court granted the defen-dant’s motion for summary judgment on the remaining negligence claimand ruled that the plaintiffs failed to show “more than a mere possibility”that the defendant was the source of methane gas in the residential watersupply.109

D. Fracking Cases Produce Conflicting Results in Texas

Two recent Texas cases reached divergent rulings with respect to hydrau-lic fracturing and causation. A Texas jury awarded plaintiffs $2.9 millionin a hydraulic fracturing-related nuisance suit,110 while the court in an-other case granted summary judgment for the defendant and held thatthe plaintiffs submitted insufficient evidence of causation.111

In Parr v. Aruba Petroleum, the plaintiffs’ claimed that air pollutionfrom Aruba’s gas and oil operations near their ranch was making themsick.112 Aruba argued that only twenty-two of the one hundred wellsdrilled within two miles of the plaintiffs’ ranch belonged to Aruba.113

Thus, the alleged illness-causing emissions could have come from anothercompany’s wells.114 The jury issued a verdict in favor of the plaintiffs,finding that Aruba “intentionally created a private nuisance” that affectedthe plaintiffs’ health. The jury awarded the plaintiffs $2.9 million in dam-ages.115 In contrast, a Texas trial court in August 2014 determined that

108. Magers v. Chesapeake Appalachia LLC, 2014 WL 4352084, at *9 (N.D. W. Va.Sept. 2, 2014).109. Id. at *7.110. Parr v. Aruba Petro. Inc., Case No. 11-01650-E (Dallas Cnty. Ct. 2011).111. Cerny v. Marathon Oil Corp., Case No. 13-00005-00118-CVK (Karnes Cnty. Ct.

2013).112. Pls.’ Eleventh Am. Pet., Parr et al. v. Aruba Petro. Inc., Case No. 11-01650-E, ¶ 1

(Dallas Cnty. Ct. 2011).113. See generally Aruba Petro. Inc.’s Bench Br. on Responsible Th. Parties and Settling

Parties, Parr, et al. v. Aruba Petroleum Inc., Case No. 11-01650-E (Dallas Cnty. Ct. 2011),available at http://courts.dallascounty.org/ViewDocumentFragment.aspx?DocumentFragmentID=10456342 &CheckDocumentGroups=0.114. Id. at 4.115. Jury Verdict, Parr v. Aruba Petro., Inc., No. CC-11-01650-E (Dallas Cnty. Ct.

Apr. 22, 2014).


there was insufficient evidence of causation and granted Marathon’s mo-tion for summary judgment in Cerny v. Marathon Oil Corp.116

vi. emerging product regulations and tort claims

A. Developments in e-Cigarette Regulations and Litigation

The FDA has proposed new regulations aimed at e-cigarettes. While his-torically the FDA only regulated e-cigarettes marketed for therapeuticpurposes, on April 25, 2014, the FDA proposed a new rule that wouldallow it to regulate e-cigarettes marketed and sold for any purpose.117

The proposed regulation targets e-cigarettes by expanding the FDA’s pre-vious definition of “tobacco products” under the Family Smoking Preven-tion and Tobacco Control Act of 2009.118 The proposed regulationcomes in the wake of the FDA’s attempt to ban e-cigarettes in 2009,which failed when the D.C. Circuit held that the ban exceeded theFDA’s statutory authority.119

In addition, California courts this year are entertaining two class actionlawsuits brought against e-cigarette manufacturers. In one, filed in statecourt in Los Angeles, the lead plaintiff brought misrepresentation claimsagainst e-cigarette company Fumizer, arguing that its manuals claim to“help you quit smoking” while its other marketing materials disclaimany similar benefits.120 The other was filed in state court and removedto the Central District of California.121 The lead plaintiff in that casealso brought misrepresentation claims and argued that e-cigarettes weremarketed as being healthy although their impact on health remainsuncertain.122

B. Proposed Regulations for Flame Retardants

New York Senator Charles Schumer recently proposed legislation thatwould ban what he has identified as “the ten worst” flame retardantsfrom upholstered furniture and children’s products, including changingtable pads, portable crib mattresses, pajamas, nap mats, and nursing pil-lows.123 Dubbed the Children and Firefighter Protection Act, the pro-

116. Case No. 13-00005-00118-CVK (Karnes Cnty. Ct. 2013).117. 79 Fed. Reg. 23141.118. Id.119. See Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 892 (D.C. Cir. 2010) (hold-

ing that FDA lacked authority to ban e-cigarettes under the drug/device provisions of theFederal Food Drug, and Cosmetics Act, but that FDA has authority to regulate e-cigarettesunder the Family Smoking Prevention and Tobacco Control Act of 2009).120. Joseph Sheppard v. Fumizer LLC, No. BC558408 (L.A. Cnty. Super. Ct. 2014).121. McGovern v. NJoy, Inc. et al., No. 8:14-cv-00427 (C.D. Cal. 2014).122. Id.123. Press Release, Office of Sen. Charles Schumer, New Study Shows, Flame-Retardants

in Furniture and Everyday Items Like Children’s Toys, Pajamas & Pillows are Highly Toxic,


posed legislation would ban TDCPP, TCEP, TBBPA, decabromodiphe-nyl ether, antimony trioxide, HBCD, TBPH, TBB, chlorinated paraffins,and TCPP.124 The proposed legislation would also require the ConsumerProduct Safety Commission to study and identify potential dangers ofother flame retardants with an eye toward banning them as well.125

vii. punitive damages

A. Punitive Damages That Are Double Compensatory DamagesDo Not Offend Due Process

In Garlock Sealing Technologies, LLC v. Dexter, the Kentucky Court of Ap-peals upheld a punitive damages award that was more than twice theamount of the compensatory damages allocated to the defendant.126

The jury awarded the plaintiff $1,599,749 in compensatory damagesand determined that Garlock was 17 percent liable for the harm($271,957).127 The jury also awarded the plaintiff $600,000 in punitivedamages against Garlock.128 Garlock appealed and the Kentucky Courtof Appeals determined that, based on the facts presented at trial, Garlock’sconduct was sufficiently wanton and reckless to warrant that amount ofpunitive damages.129 The court further determined that the punitive dam-ages amount did not violate Garlock’s due process rights as there is nobright-line rule defining when a punitive damages award is excessive.130

B. Punitive Damages Claims Are Now Permissible in New York CityAsbestos Litigation

Since 1988, the New York City Asbestos Litigation (NYCAL) Case Man-agement Order (CMO) has streamlined the asbestos personal injury law-suits filed in New York County. In 1996, Justice Freedman amended theCMO, adding Section XVII, which deferred punitive damages claimsuntil further notice. In July 2014, a group of plaintiffs filed a motion toremove Section XVII and allow punitive damages claims in NYCALcases.131

Harm Greatly Outweighs Benefit; Schumer Unveils First Bill to Ban 10 Most Toxic FlameRetardants—Plan Critical to Protect Kids from Developmental Dangers & Cancer, Sept. 15,2014, available at http://www.schumer.senate.gov/newsroom/press-releases.124. Id.125. Id.126. Garlock Sealing Tech., LLC v. Dexter, 2014 WL 3795407, at *1 (Ky. Ct. App.

Aug. 1, 2014).127. Id.128. Id.129. Id. at *3.130. Id. at *4.131. In re New York City Asbestos Litig., 2014 WL 1767314, at *1 (N.Y. Sup. Ct. Apr. 8,

2014)


Justice Heitler allowed the motion, held that punitive damages may bepursued where conduct is accompanied by “an improper state of mind ormalice,” and determined that due process protections would ensure thatdefendants would not be subject to excessive punitive damages awards.132

Going forward, the court may hear arguments about whether to allow ajury charge regarding punitive damages at the end of the evidentiaryphase of each NYCAL trial.133 If the jury determines that punitive dam-ages are warranted, that same jury will hear a second trial to determine theamount.134

C. Eastern District of Pennsylvania Determines That Punitive DamagesAwards Are Available in Maritime Claims of Unseaworthiness,but Not to Seamen’s Families

The Eastern District of Pennsylvania determined that although punitivedamages are available to seamen in general maritime claims of unsea-worthiness, they are not available to the families of seamen in survival ac-tions. The decision, In re Asbestos Products Liability Litigation, related toclaims brought by merchant marines and their family members againstthe employers-shipowners for asbestos-related injuries that they sustainedon the ships.135

viii. resource conservation and recovery act

On August 20, 2014, the Ninth Circuit determined that emissions of die-sel particulate matter from a rail yard were not regulated by the ResourceConservation and Recovery Act (RCRA).136 In Center for Community Ac-tion and Environmental Justice v. BNSF Railway Co., the court held that therail yard’s emissions did not constitute a “disposal” of solid waste underRCRA and, more broadly, that emissions from indirect sources like railyards “fall entirely out of the ambit of federal regulation.”137 The courtrejected plaintiffs’ contention that the rail yard emissions constitute “dis-posal” under RCRA.138 “Disposal” occurs, according to the court, wherethe solid waste is first placed “into or on any land or water” and is there-after “emitted into the air” and does not extend to indirect air emissions,such as those from the rail yards.139

132. Id. at *6–8.133. Id. at *12.134. Id.135. In re Asbestos Prods. Liab. Litig. 2014 WL 3353044, at *2 (E.D. Pa. July 9, 2014).136. Center for Cmty. Action & Envtl. Justice v. BNSF Ry. Co., 764 F.3d 1019 (9th Cir.

2014).137. Id. at 1029.138. Id. at 1021.139. Id. at 1024.


ix. clean air act

A. U.S. Environmental Protection Agency’s Clean Power Plan

On June 2, 2014, the U.S. Environmental Protection Agency (EPA) re-leased its first rule regulating carbon emissions from existing powerplants.140 In this proposal, known as the Clean Power Plan, the EPAsets a target of a 30 percent reduction in carbon dioxide (CO2) emissionsfrom 2005 levels by 2030.141 The Clean Power Plan was proposed pursu-ant to the EPA’s authority under Clean Air Act § 111(d) and has two maincomponents: state-specific goals for reductions in carbon emissions frompower plants and guidelines to assist states in developing plans to meetthose goals.142

With respect to the first component, the development of state-specificgoals, the EPA has proposed a two-part goal structure in which an “in-terim goal” must be met on average between 2020 and 2029, and a“final goal” must be met by 2030.143 The state-specific goals included inthe proposed rule were based on the EPA’s review of 2012 emissiondata for each particular state, any existing programs in that state to reduceCO2 emissions, and application of the “best system of emission reduction”(BSER).144 The EPA determined that the BSER would be a combinationof measures that can be grouped into four categories, or “building blocks,”to reduce carbon intensity: (1) power plant efficiency improvements; (2) re-dispatch (i.e., meeting demand by increasing the use of existing natural gascombined cycle plants instead of coal-fired plants); (3) increased relianceon zero-emitting generation sources such as nuclear and renewable energygeneration; and (4) demand-side energy efficiency programs.145

The second component of the Clean Power Plan is a set of proposedguidelines to assist states in developing state-specific plans to meet theproposed goals.146 While the EPA derived the state-specific goals by ap-plying the four building blocks, the agency has stressed that states will stillhave flexibility when choosing how to meet their goals from one or moreof these mechanisms.147 The EPA claims that it will allow states alreadyimplementing CO2 reduction programs to continue to rely on and expandthose programs.148 The proposed rule also allows states to submit

140. Carbon Pollution Emission Guidelines for Existing Stationary Sources: ElectricUtility Generating Units, 79 Fed. Reg. 34830 ( June 18, 2014).141. Id. at 34832.142. Id. at 34833.143. Id. at 34837.144. Id. at 34834.145. Id.146. Id. at 34835.147. Id.148. Id. at 34834.


multistate plans to reduce costs and to increase efficiency.149 Initial plansmust be submitted to the EPA by June 30, 2016,150 and complete plansmust be submitted by June 30, 2017. If choosing a multistate approach,the complete plans must be submitted by June 30, 2018.151

B. Clean Air Act Litigation Developments

1. U.S. Supreme Court Upholds EPA’s Authority to Determine theAmount of Interstate Air Pollution from Upwind States

In Environmental Protection Agency v. EME Homer City Generation, L.P.,152

the Supreme Court upheld the EPA’s Cross-State Air Pollution Rule(Transport Rule). The Transport Rule was the EPA’s second attemptto regulate so-called interstate pollution—pollution generated intwenty-eight “up-wind” states that migrates to “downwind” states. TheD.C. Circuit Court had vacated the Transport Rule on grounds thatthe EPA had improperly forced a federal program on states and requiredsome states to reduce pollution disproportionate to that state’s contribu-tion to the pollution problem.153 The Supreme Court disagreed.154 TheCourt upheld the EPA’s application of the “Good Neighbor” provision ofthe Clean Air Act, which the EPA interpreted to allow it to require statesto reduce pollution based both on the “the magnitude of up-wind states’contributions and the cost associated with eliminating them.”155

2. Notice of Violation Is Not Final Agency Action

In Luminant Generation Co., LLC v. Environmental Protection Agency,156 theFifth Circuit held that it lacked subject-matter jurisdiction to hear Lumi-nant’s challenge to a notice of violation (NOV) issued by EPA under theClean Air Act. The court found that the NOV did not constitute “finalagency action” under the Administrative Procedure Act.157 EPA mustissue a NOV before it may file a complaint or take other administrativemeasures to address alleged noncompliance with the Clean Air Act.158 Al-though the NOV alleged that Luminant had violated certain provisions ofthe Clean Air Act, the NOV did not “itself determine Luminant’s rightsor obligations and no legal consequences flow from the issuance of the

149. Id. at 34833.150. Id. at 34838.151. Id.152. 134 S. Ct. 1584 (2014).153. Id. at 1593.154. Id. at 1610.155. Id. at 1606–07.156. 757 F.3d 439 (5th Cir. 2014).157. Id. at 442.158. Id.


notice.”159 The Fifth Circuit’s ruling is consistent with rulings in theThird and Ninth Circuits.160

3. EPA’s Interpretation of a State Implementation Plan Controlsover a State’s Interpretation of Its Own Regulations

In United States v. Duke Energy Corp.,161 the district court determined thatthe EPA’s interpretation of a state implementation plan (SIP) took prece-dence over a state’s interpretation of its own rules implementing theClean Air Act. Although the EPA has promulgated regulations imple-menting the Clean Air Act, CAA § 110 of the statute grants states the au-thority to implement the Act by promulgating a SIP.162 The SIP must bereviewed and approved by the EPA. Once approved, the state regulationsare federally enforceable, but implemented by the state. Duke argued thatNorth Carolina’s interpretation of its SIP, which conflicted with theEPA’s interpretation, was controlling.163 The court disagreed, interpret-ing the SIP as a federal law implemented within a state regulatory pro-gram.164 In particular, the court found that where conflict exists, EPA’sinterpretation of a SIP controls over the state’s interpretation, especiallywhere the SIP merely adopts the relevant federal regulation.165

4. EPA Must Interpret and Apply Its Regulations ConsistentlyAcross the Country

In National Environmental Development Clean Air Project v. EnvironmentalProtection Agency (NEDA), the D.C. Circuit held that the EPA had violatedits regional consistency regulation by interpreting the Clean Air Act dif-ferently in different regions.166 This case stems from a dispute concerninghow to determine whether nominally separate facilities constitute a single“source” under the Clean Air Act. At issue was the EPA’s policy concern-ing the interpretation of the word “adjacent.” The EPA had historicallyinterpreted “adjacent” based on the “functional interrelationships” ofthe facilities, not simply on physical distance.167 In Summit PetroleumCorp. v. Environmental Protection Agency, the Sixth Circuit held thatEPA’s functional interrelationship test was inappropriate.168 The EPAthen issued a directive instructing its regions to continue to apply the

159. Id.160. Id. at 444.161. 981 F. Supp. 2d 435 (M.D.N.C. 2013).162. 42 U.S.C. § 7410.163. Duke Energy Corp., 981 F. Supp. 2d at 450–51.164. Id. at 444.165. Id. at 445.166. 752 F.3d 999 (D.C. Cir. 2014).167. Id. at 1002.168. 690 F.3d 733 (6th Cir. 2012).


functional interrelationship test outside of the Sixth Circuit’s jurisdic-tion.169 The petitioners in NEDA alleged that the EPA’s Summit directiveput regulated entities outside of the Sixth Circuit at a competitive disad-vantage by subjecting those sources to more stringent permitting require-ments.170 The D.C. Circuit agreed. Relying on the EPA’s regional consis-tency regulations, 40 C.F.R. §§ 56.3(a) and (b), the court held that theSummit directive was “plainly contrary” to those regulations that requiredEPA to “establish uniform criteria for implementing the Act.”171 TheEPA was not free to apply a different “adjacency” test depending on asource’s location.172

5. Court Invokes Clean Air Act Fee Shifting Provision to AwardDefendants over $6.4 Million

Fee shifting provisions exist in several of the major environmental stat-utes. Some legislative history indicates that they exist to compensateplaintiffs for performing the public service of suing potential polluters.However, in Sierra Club v. Energy Future Holdings Corp., a court awarded$6.4 million in fees to a defendant after it determined the plaintiff ’s claimsto be unfounded.173 Applying the Supreme Court’s decision in Christians-burg Garment Co. v. Equal Employment Opportunity Commission,174 theWestern District of Texas held that “prevailing defendants may beawarded attorney and expert fees if the plaintiff ’s claims were ‘frivolous,unreasonable, or groundless, or that the plaintiff continued to litigateafter it clearly became so.’ ”175 While acknowledging that a heightenedstandard is appropriate when awarding fees to defendants because ofthe risk of discouraging future plaintiffs, the court still held plaintiff ’sclaims to be “frivolous, unreasonable, or groundless,” in part becausethe plaintiff was aware, before it filed suit, that defendant’s Title V permitexempted it from deviations during maintenance, start-up, or shutdownactivities.176

6. Supreme Court Finds EPA Overstepped Authority in RegulatingGreenhouse Gas Emissions from Small Sources

In Utility Air Regulatory Group v. Environmental Protection Agency, the Su-preme Court limited the EPA’s authority to regulate greenhouse gases,holding that the EPA did not have authority to change a term of the

169. Nat’l Envtl. Dev. Ass’n Clean Air Project, 752 F.3d at 1003.170. Id.171. Id.172. Id.173. No. W-12-cv-108 (W.D. Tex. Aug. 29, 2014).174. 434 U.S. 412 (1978).175. Sierra Club, No. W-12-cv-108, at *2 (W.D. Tex. Aug. 29, 2014).176. Id. at *13.


Clean Air Act.177 The Court concluded that “[w]ere we to recognize theauthority claimed by EPA in the Tailoring Rule, we would deal a severeblow to the Constitution’s separation of powers.”178 As a result, the Courtconcluded that the EPA cannot require a Title V or prevention of signif-icant deterioration permit solely on the basis of a source’s GHGemissions.179

x. clean water act

A. EPA Issues Final 316(b) Rules for Cooling Water Intake Structures

On May 19, 2014, the EPA issued final “Phase II” rules underSection 316(b) of the Clean Water Act for existing facilities180 that(1) use cooling water intake structures designed to withdraw at leasttwo million gallons of water per day from waters of the United States,(2) have or are required to have a National Pollutant Discharge Elimina-tion System permit, and (3) use at least 25 percent of the water they with-draw exclusively for cooling purposes.181 The majority of sources subjectto these rules are electric generating plants, but the rules also apply topulp and paper mills, chemical manufacturing plants, iron and steel man-ufacturing, petroleum refineries, food processing facilities, and aluminummanufacturers.182 The final rules allow sources flexibility to pick one ofseven options to reduce fish impingement, the entrapment of aquaticlife on the intake structure, or against a screening device at intake.183

The national best technology available for entrainment, the intake ofaquatic life through a cooling water intake structure and into a coolingwater system, including the condenser or heat exchanger, must be seton a site-specific basis.184

B. EPA and U.S. Army Corps of Engineers Jointly Propose RevisedDefinition of “Waters of the United States”

On March 25, 2014, the EPA and the U.S. Army Corps of Engineersjointly announced a proposed rule to amend the regulatory definition of“waters of the United States,” a term that essentially sets the boundaries

177. Util. Air Regulatory Grp. v. Envtl. Prot. Agency, 134 S. Ct. 2427, 2449 (2014).178. Id. at 2446.179. Id.180. New facilities are subject to the previously promulgated Phase I rules found at 40

C.F.R. Subpart I. 66 Fed. Reg. 65256 (Dec. 18, 2001).181. National Pollutant Discharge Elimination System-Final Regulations to Establish

Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Re-quirements at Phase I Facilities, 79 Fed. Reg. 48300 (Aug. 15, 2014).182. Id. at 48301.183. Id. at 48321.184. Id. at 48322.


of federal jurisdiction under the Clean Water Act.185 This proposed rulewas promulgated in light of the Supreme Court cases in United States v.Riverside Bayview,186 Solid Waste Agency of Northern Cook County v. U.S.Army Corps of Engineers,187 and Rapanos v. United States,188 which de-termined the streams and wetlands that were subject to the CleanWater Act protection. The proposed rule has the potential to signifi-cantly expand the authority of the EPA and the Corps under theClean Water Act.

The proposed rule provides that certain water bodies, which, undercurrent law, would have been deemed to be subject to federal jurisdictiononly after a case-by-case determination, would now be jurisdictional wa-ters by definition.189 Under the proposed rule, waters of the United Stateswould include not only traditional navigable waters, interstate waters, ter-ritorial seas, and tributaries of those water bodies, but also waters andwetlands that are adjacent to those waters.190 The proposed rule also in-cludes several definitions central to the interpretation of “waters of theUnited States,” including the terms “tributary” and “adjacent.”191 Otherwaters that do not fit within any of the proposed categories may be con-sidered jurisdictional if, after a case-specific analysis, the Corps deter-mines that these waters have a significant nexus to a traditional navigablewater, interstate water, or territorial sea.192

xi. comprehensive environmental response,compensation, and liability act (cercla)

A. Seventh Circuit Holds Harm at CERCLA Site Is Theoretically Capableof Apportionment; Permanent Injunction Cannot Be Used to Enforce aCERCLA § 106(b) Order

Since the Supreme Court’s Burlington Northern decision in 2009,193 manyhave tried, but few have succeeded, in convincing courts that the harm at aComprehensive Environmental Response, Compensation, and LiabilityAct (CERCLA) site is capable of apportionment. Recently, the Seventh

185. Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed.Reg. 22188 (Apr. 21, 2014).186. 474 U.S. 121 (1985).187. 531 U.S. 159 (2001).188. 547 U.S. 715 (2006).189. 79 Fed. Reg., supra note 185, at 22188.190. Interpreting Justice Kennedy’s concurring opinion in Rapanos v. United States, 547

U.S. 715 (2006), the agencies have since applied the “significant nexus” test to determinewhether adjacent wetlands or tributaries are subject to Clean Water Act jurisdiction on acase-by-case basis.191. 79 Fed. Reg., supra note 185, at 22201, 22206.192. Id. at 22211.193. Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 614 (2009).


Circuit vacated a district court order and held that harm at a CERCLAsite was theoretically capable of apportionment. The decision in thatcase, United States v. P.H. Glatfelter Co., stemmed from an action to en-force a CERCLA § 106(b) order in which the district court held thatharm at the site was binary in nature, i.e., concentrations of PCBs inthe river over 1.0 ppm were harmful, and concentrations at or belowwere not.194 Because the defendant failed to refute that its discharges,by themselves, were sufficient to cause PCB concentrations above the1.0 ppm threshold and require the cleanup, the district court concludedthe harm was not divisible.195 The Seventh Circuit disagreed. It deter-mined that it was an oversimplification to conclude that harm was binarybecause evidence suggested that areas with increased concentrations ofPCBs posed increased risk, and areas with higher concentrations ofPCBs would result in higher costs for cleanup.196 The Seventh Circuitthus concluded that the harm was “theoretically capable of apportionmentif [the defendant] could show the extent to which it contributed to PCBconcentrations” and remanded the case for further proceedings.197 Thecourt also vacated the district court’s permanent injunction to enforcethe § 106(b) order, concluding that although an injunction is an appropri-ate remedy to enforce an EPA order issued under § 106(a), it is not an ap-propriate remedy for enforcing a § 106(b) order.198

B. Seventh Circuit Discusses Scope of District Court’s Consideration ofAllocation Factors and Holds PRP Is Limited to Contribution Claims

In NCR Corp. v. George A. Whiting Paper Co., the Seventh Circuit vacatedand remanded a district court’s decision that one defendant should pay for100 percent of the cleanup costs at a CERCLA site in Wisconsin.199 NCRhad brought contribution claims against other potentially responsible par-ties (PRPs), which then countersued NCR for contribution.200 The dis-trict court ordered targeted discovery focusing solely on the respectiveparties’ knowledge of PCBs and the risks posed.201 The district courtheld that NCR should pay for 100 percent of the cleanup costs basedon NCR’s knowledge, in contrast with the other PRPs’ lack of knowledge,of the environmental dangers.202 The Seventh Circuit determined thatthe district court should have considered additional relevant equitable fac-

194. 768 F.3d 662, 676–77 (7th Cir. 2014).195. Id.196. Id. at 677.197. Id. at 678.198. Id at 681–82.199. 768 F.3d 682, 684 (7th Cir. 2014).200. Id. at 686.201. Id. at 696.202. Id. at 696–99.


tors, such as volume, other sources of PCBs, and parties’ cooperation withthe government cleanup effort.203 The Seventh Circuit distinguished be-tween “determining an action based on a single factor, and considering onlycertain factors on the way to the decision.”204 It held that because the dis-trict court did not consider other relevant equitable factors, it was “unableto say whether the record adequately supported the court’s decision to se-lect knowledge as the decisive factor.”205

The Seventh Circuit further held that NCR could bring CERCLA§ 113(f ) contribution claims, but could not bring CERCLA § 107 cost re-covery claims against the other PRPs.206 It reached this decision for tworeasons: (1) because there was an administrative order resolving NCR’s li-ability, NCR was limited to a § 113(f ) contribution claim with respect tothe administrative order; and (2) because a § 113(f ) contribution claimwas available for NCR’s claims related to its ongoing civil action underCERCLA § 106, a § 107(a) cost recovery claim was not available toNCR for those claims.207

C. Judicial Review of a Superfund Cleanup Can Proceed in Stages

A Seventh Circuit decision addressed the contours of how EPA decisionsin an “on-going” remediation may be challenged under CERCLA.208

CERCLA provides that “[n]o Federal court shall have jurisdiction . . .to review any challenges to removal or remedial action” except in limitedcircumstances, none of which allow a plaintiff to challenge an ongoing re-sponse action.209 Generally, courts applying this provision have foundthat parties are prohibited from reviewing ongoing cleanup activities.But in Frey v. Environmental Protection Agency, the Seventh Circuit heldthat where a cleanup has been divided into phases, parties may challenge“completed” phases even where other work remains ongoing.210 By thetime the Frey plaintiffs filed a CERCLA citizen suit challenging theEPA’s cleanup of three former landfills, the agency and the PRPs had al-ready separated the cleanup into three stages, and the first stage of theclean-up was complete.211 The Seventh Circuit upheld the districtcourt decision permitting review of the first phase on the merits, explain-ing that “[i]f the EPA adopts a new remediation plan after an old plan is

203. Id. at 702.204. Id. at 701.205. Id. at 702.206. Id. at 692.207. Id. at 690–93.208. Frey v. Envtl. Prot. Agency, 751 F.3d 461, 469 (7th Cir. May 1, 2014).209. 42 U.S.C. § 9613(h)(4).210. Frey, 751 F.3d at 468.211. Id. at 469.


complete, a court remains able to review citizens’ claims about the oldplan that are not directly affected by the new plan.”212

D. Supreme Court Declines to Address Circuit Split on CERCLAStatute of Limitations Issues for Contribution Actions

One way to recover costs under CERCLA is through a contribution claimunder § 113(f ).213 Section 113(f )(3)(B) allows a party that has “resolved itsliability to the United States or a State” in an “administrative or judiciallyapproved settlement” to bring a contribution claim.214 A contributionclaim must be brought within three years, but the circuits have split onhow to interpret whether the three-year time period begins to runwhen a party has completed “satisfactory performance” of its obligationsunder the settlement agreement or on the date when the agreement issigned.215 On January 27, 2014, the Supreme Court denied certiorari inBernstein v. Bankert, a case that would likely have addressed this split.216

E. Additional Case Law in Circuit Split on Whether a Settlement Must ResolveCERCLA Liability to Trigger a PRP’s Right to Bring a Contribution Action

The federal appellate courts continue to be split on whether the right tobring a § 113(f )(3)(B) contribution claim is (1) triggered solely by the res-olution of CERCLA liability, or (2) can arise out of a settlement that doesnot address CERCLA liability specifically, but still resolves a potentiallyresponsible party’s liability for contamination (under, for example, a statelaw). In 2013, the Third Circuit held that an order that did not addressCERCLA liability, but resolved a potentially responsible party’s liabilityfor contamination under two Pennsylvania environmental remediationstatutes, triggered the party’s right to pursue a CERCLA § 113(f )(3)(B)contribution claim.217 This holding conflicts with the Second Circuit’s2005 decision in Consolidated Edison Co. of New York, Inc. v. UGI Utilities,Inc., holding that § 113(f )(3)(B) contribution claims are triggered onlywhen CERCLA claims are resolved.218 This year, the District Court ofMontana decided that it was not necessary to resolve CERCLA liabilityto trigger a party’s right to a contribution claim.219 Siding with theThird Circuit, the court explained that “[t]he most logical and appropriate

212. Id.213. 42 U.S.C. § 9613(f ).214. 42 U.S.C. § 9613(f )(3)(B).215. Compare Bernstein v. Bankert, 702 F.3d 964, 976 (7th Cir. 2012), aff ’dNos. 11-1501,

11-1523, 2013 WL 3927712, at *1 (7th Cir. July 31, 2013), cert. denied, 134 S. Ct. 1024(2014), with Chitayat v. Vanderbilt Assocs., 702 F. Supp. 2d 69, 83 (E.D.N.Y. 2010).216. Bernstein, 702 F.3d at 981.217. Trinity Indus., Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131 (3d Cir. 2013).218. 423 F.3d 90, 95 (2d Cir. 2005).219. Asarco LLC v. Atl. Richfield Co., No. 12-cv-00053 (D. Mont. Aug. 26, 2014).


construction is simply to apply CERCLA’s definition of the term ‘re-sponse,’ which encompasses the terms ‘remove, removal, remedy, and re-medial action . . . includ[ing] enforcement activities related thereto.”220

The court also noted that “[i]f Congress intended to narrow the scopeof § 113(f )(3)(B) to cover only settlements that expressly resolve CER-CLA liability, it could have done so, as it did in § 113(f )(1).”221

F. Sixth Circuit Looks to Four Factors to Determine Whether Agreement“Resolves Liability” for Purposes of Triggering a Potentially ResponsibleParty’s (PRP) Right to Bring a CERCLA Contribution Action

In Hobart Corp. v. Waste Management of Ohio, Inc., the Sixth Circuit heldthat when an administrative settlement and order on consent (ASAOC)resolves a PRP’s liability, the ASAOC is an administrative settlementunder CERCLA § 113(f )(3)(B) and therefore triggers the PRP’s rightto bring a contribution claim under CERCLA.222 In Hobart, the SixthCircuit considered four factors to determine whether the ASAOC re-solved the PRP’s liability: (1) whether the agreement stated that it re-solved the PRP’s liability, (2) whether the PRP received contribution pro-tection from the agreement, (3) whether the agreement’s title indicatedthat it was a settlement agreement, and (4) whether the agreement con-tained a covenant not to sue.223 The court found that the ASAOC re-solved the PRP’s liability, and therefore the PRP was authorized tobring a contribution action to recover costs incurred pursuant to theASAOC. The PRP, however, was not entitled to bring a cost recovery ac-tion.224 The court also determined that because the ASAOC resolvedsome liability when it was executed, the statute of limitations for a contri-bution action was triggered by the date that the agreement was signed andthe PRP had three years from that date to bring its contribution claim.225

220. Id. at 14.221. Id.222. 758 F. 3d 757, 771 (S.D. Ohio 2014).223. Id. at 768–69.224. Id. at 771.225. Id. at 771–72.


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