This entry was authored by MGKF Summer Associate Karina Zakarian

On June 25, the United States Court of Appeals for the Fourth Circuit, in a case of first impression, vacated the United States District Court for the District of Maryland’s holding in 68th Street Site Work Group v. Alban Tractor Company et al., No. 23-1155 (4th Cir. Jun. 25, 2024), that arranger liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) requires a potentially responsible party to have knowledge that the waste it discards is hazardous. Rather, the Fourth Circuit found that the mere intent to dispose of waste suffices to establish liability under CERCLA. According to the Court, imposing scienter on arrangers of waste disposal would contradict both legislative intent and the strict liability scheme governing superfund site remediation. Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Contribution, Fourth Circuit, Landfill, Maryland, Superfund, Waste

Rejecting federal officer removal and federal question removal theories, the Fourth Circuit affirmed the District of West Virginia’s remand of a state tort suit against the remediators of an EPA-permitted Resource Conservation and Recovery Act (“RCRA”) site.  W.V. St. Univ. Bd. of Govs. v. Dow Chem. Co. et al., No. 20-1712, __ F.4^th __, 2022 WL 90242 (Jan. 10, 2022). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Federal Jurisdiction, Federal Procedure, Fourth Circuit, Groundwater, Negligence, Nuisance, Procedure, RCRA, Removal, Subject Matter Jurisdiction, Superfund, Trespass, West Virginia

On October 12, 2021, the United States District Court for the District of Maryland granted summary judgment to Defendant Schumacher & Seiler, Inc. (“S&S”) and dismissed Plaintiff 68^th Street Site Work Group’s claim for contribution under CERCLA. See 68^th Street Site Workers Group v. AIRGAS Inc., Slip Op. (October 12, 2021). The District Court, applying the “underlying acts” or “conduct” approach, held that the Defendant’s CERCLA liability arose prior to, and was therefore discharged by, its Chapter 11 bankruptcy. Read More »

Share | Email| Comments|  Topics: Bankruptcy, CERCLA, Cleanup, Contamination, Contribution, Fourth Circuit, Landfill, Maryland, Superfund

On May 17, 2021, the Supreme Court vacated an appellate court decision which had remanded to state court an action seeking to hold petroleum companies liable for the effects of climate change, finding that the appellate court impermissibly restricted the scope of its review of a district court’s order. Although, as noted by the Supreme Court, “[t]he only question before us is one of civil procedure,” the case of BP P.L.C. v. Mayor and City Council of Baltimore, Docket No. 19-1189 (May 17, 2021) may have a profound practical impact on ongoing environmental litigation. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Climate Change, Decisions of Note, Energy, Fourth Circuit, Greenhouse Gas, Oil and Gas, Procedure, Refinery, Removal, Supreme Court, United States Supreme Court

Reversing the Fourth Circuit, the Supreme Court on Monday issued its opinion in United States Forest Service v. Cowpasture River Preservation Association, No. 18-1584 (June 15, 2020). In a 7-2 decision, Justice Thomas wrote for the majority that the Appalachian National Scenic Trail’s passage through United States National Forest land is best viewed as a grant of an easement to the National Park Service rather than a transfer of ownership of the underlying land. In doing so, the Court upheld the Forest Service’s right to permit a pipeline to run beneath the Trail under the Mineral Leasing Act (MLA). Read More »

Share | Email| Comments|  Topics: Federal Energy Regulatory Commission, FERC, Forest Service, Fourth Circuit, Interior, Mineral Leasing Act, National Forest Management Act, NEPA, Oil and Gas, Permits, Pipelines, Public Lands, Supreme Court, United States Supreme Court

Quoting a Dr. Seuss book, the United States Court of Appeals for the Fourth Circuit on Thursday issued its opinion in Cowpasture River Preservation Association v. United States Forest Service, No. 18-1144 (4^th Cir. Dec. 13, 2018). The Court held that the US Forest Service (the “Forest Service”) violated the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”), as well as lacked statutory authority under the Mineral Leasing Act (“MLA”) to grant a pipeline right of way across the Appalachian National Scenic Trail (the “Appalachian Trail”), failing to “speak for the trees” as Seuss’s Lorax directs. Read More »

Share | Email| Comments|  Topics: Energy, Federal Energy Regulatory Commission, FERC, Fourth Circuit, Mineral Leasing Act, National Forest Management Act, Natural Gas, NEPA, Pipelines

Last Thursday, the Fourth Circuit Court of Appeals held that environmental groups could bring a citizen suit under the Clean Water Act (“CWA”) against the owner of a ruptured gasoline pipeline where the pipeline had been repaired but the spilled gasoline allegedly continued to travel through groundwater and into nearby surface waters regulated by the CWA as “navigable waters.” Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018). In doing so, the Court weighed in on an issue that was of first impression to the Fourth Circuit and has significant implications for CWA liability – whether the discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant pursuant to the CWA. The Court also resolved the preliminary jurisdictional issue by finding that the plaintiffs had adequately alleged an “ongoing violation” as necessary to allege a CWA violation in the district court.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Fourth Circuit, Navigability, Oil and Gas, Pipelines, Water

The Clean Water Act (“CWA”) generally forbids discharging contaminated effluent into waters of the United States unless the discharger holds a National Pollution Discharge Elimination System (“NPDES”) permit. Once a discharger holds a permit, they are shielded from discharge related liability- unless, as the Fourth Circuit observed in the recent case of Ohio Valley Environmental Coalition v. Fola Coal Company, LLC, No. 161024 (4th Cir., 1/04/2017), the permit holder is noncompliant. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Contamination, Fourth Circuit, NPDES, Permits, Water

In 2014, we covered the United States Supreme Court’s decision in CTS Corp. v. Waldburger et al., 134 S. Ct. 2175 (June 9, 2014).  In Waldburger, the Court overturned a decision by the Fourth Circuit, and held that while CERCLA preempts state statutes of limitations in toxic tort personal injury and property damage actions, it does not preempt state statutes of repose, like the North Carolina statute of repose at issue, from barring similar actions.    Last week, in Stahle v. CTS Corp., No. 15-1001 (March 2, 2016), the Fourth Circuit addressed an even more basic question, whether the statute of repose at issue in Waldburger is even applicable in such cases.  Read More »

Share | Email| Comments|  Topics: Cancer, Case Update, Contamination, Eleventh Circuit, Fourth Circuit, North Carolina, Preemption, Statute of Limitations, Statute of Repose, Toxic Torts

In a 7-2 opinion issued today, the United States Supreme Court held that CERCLA does not preempt state law statutes of repose that foreclose causes of action for personal injury and property damage claims asserted after a statutorily-prescribed time period has elapsed, effectively absolving potential defendants from liability.

The case – CTS Corp. v. Waldburger et al, 573 U.S. ___ (2014) (slip op) – involves a 2011 state-law nuisance action against the former property owner, CTS Corp., which in 1987 sold property contaminated with TCE and DCE, which it had characterized as “environmentally sound.”  More than 20 years after CTS Corp. sold the property, EPA informed subsequent property owners and adjacent landowners that their groundwater was contaminated and that the source of the contamination was the former electronics manufacturing facility operated by CTS Corp. on the property. Read More »

Share | Email| Comments|  Topics: CERCLA, Contamination, Contribution, Cost Recovery, Decisions of Note, Discovery Rule, EPA, Fourth Circuit, New Jersey, Nuisance, Pennsylvania, Preemption, Real Estate, Remediation, Spill Act, Statute of Limitations, Statute of Repose, Superfund, Supreme Court, Tolling, Toxic Torts