The most noteworthy decisions this month are the following:

•   Judge Koh of the federal district court for the Northern District of California granted in part and denied in part motions for summary judgment on property owner’s claims over allegedly insufficient remediation.  Plaintiffs could allege permanent damages, even though the government had signed off on the remediation action.  The discovery rule prevented application of the statute of limitations.  There was also a claim that the defendants breached an access agreement.  The failure to undertake adequate remediation could also support punitive damages.

•   Judge Frank of the federal district court for the District of Minnesota granted a motion to dismiss claims against a company after an employee disposed of hazardous substances on his property, which was subsequently sold to plaintiff.  The defendant company was not a responsible party under either CERCLA or state statutory recovery claims.  There could be no liability for negligence or trespass because the defendant itself took no action.  There was no vicarious liability, because the actions of the employee were not within the scope of business.

•     Judge Clark of the federal district court for the Middle District of Pennsylvania denied plaintiffs’ request to exclude from discovery their medical records.  The plaintiffs claimed no present medical harms but sought medical monitoring due to exposure.  The court held that their current medical status was relevant to the nature of the medical monitoring the plaintiffs might require.  Moreover, the medical records were relevant to the subject matter of the action.

•   Judge Jorgenson of the federal district court for the District of Arizona denied a motion by intervenors for discovery so that they could better assess a consent decree’s allocation of responsibility under CERCLA.  The intervenors had received some relevant information, and the preference for settlement and deference to government counseled for not delaying the consideration of the decree.  However, the court demanded more information for itself before approving it.

•   Judge Cox of the federal district court for the Eastern District of Michigan granted in part and denied in part summary judgment motions on a dispute between the current and former property owner over contamination.  Negligence claims against the former owner were rejected for lack of duty.  The current owner’s RCRA citizen suit claims were allowed on one theory for which there was a possible violation.  CERCLA and state superfund counterclaims could proceed because there were factual allegations that the current owner had exacerbated the migration of contamination at the site.

•   Judge Spero of the federal district court for the Northern District of California granted in part and denied in part plaintiffs’ motion for summary judgment on contamination claims. Undisputed facts about the defendants’ contamination of the region, including plaintiffs’ property supported imminent and substantial endangerment relief under RCRA.  The plaintiff also made out a claim for private nuisance, but the contamination was not so widespread as to be a public nuisance.

•   Judge Smith of the federal district court for the District of Rhode Island granted in part and denied in part the government’s motion to dismiss a declaratory judgment action under CERCLA.  The private plaintiff could proceed under Section 107(a).  At this stage, though, there was no basis for evaluating divisibility of harm.  Equitable indemnity claims were rejected because the plaintiff showed no waiver of sovereign immunity.

 

 

 

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