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Environmental Law

Environmental Toxic Torts Blog Environmental Toxic Torts Blog

Legal developments and defense strategy in the area of environmental toxic torts.
By Gail Wurtzler

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Last Entry: December 09, 2011 at 16:09:32

Recent Entries: 66

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Legal, Regulatory and Environmental Challenges of Hydraulic Fracturing Summit

Posted on December 09, 2011
Jeff Pilkington and Gail Wurtzler spoke at the Legal, Regulatory and Environmental Challenges of Hydraulic Fracturing Summit, presented by Information Forecast, Inc. on December 7th and 8th in Houston, Texas.  Jeff participated in a panel discussion titled "Litigation Round-up: Key Take-Aways for Drilling Companies and Their Advisors...

RMMLF Hydraulic Fracturing: Core Issues and Trends Workshop

Posted on November 18, 2011
Adam Cohen and Shannon Stevenson co-spoke at the Hydraulic Fracturing: Core Issues and Trends Workshop, which was presented by the Rocky Mountain Mineral Law Foundation, on November 17th at the Grand Hyatt in Denver, Colorado.  Adam and Shannon represented the Rocky Mountain region in "The States' Legal Framework" presentation...

Cooking Oil Dumped in Sewer May Not Be a Pollutant

Posted on October 27, 2011
In a February 2008 post, we summarized the holding in Mountain States Mutual Casualty Co. v. Kirkpatrick, No. 06-cv-00221-WDM-OES. (See Commercial Waste is a Pollutant, Feb. 19, 2008). Essentially, the Hog's Breath Saloon & Restaurant dumped used cooking oil and other nontoxic waste into the sewer, clogging it...

Fracking Litigation: Disclosure and Causation Issues

Posted on September 28, 2011
How may current statutes and regulations requiring disclosure of hydraulic fracturing chemicals impact private party litigation? What causation issues affect private party tort claims? To view the presentation slides entitled 'Fracking Litigation: Disclosure and Causation Issues,' from speaker Gail L...

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Environmental Groups Submit Hydraulic Fracturing/TSCA Disclosure Petition

Posted on August 05, 2011
By Robert Lawrence In a significant development yesterday, a number of environmental organizations submitted a petition to EPA on August 4 seeking to require manufacturers and processors of chemicals used in hydraulic fracturing and other oil and gas exploration and production operations to disclose the contents of the "chemical substances and mixtures" used in these operations...

EPA Proposes New Air Rules To Reduce Emissions from Fracking Operations

Posted on August 05, 2011
On July 28, 2011, EPA proposed a set of standards to reduce emissions of volatile organic compounds (VOCs) and air toxics from the oil and natural gas industry. The rules also would significantly reduce methane, a greenhouse gas.  The Proposed Rule, EPA's Fact Sheet for the Proposed Rule and Overview Presentation and a Regulatory Impact Analysis are on EPA's Oil and Natural Gas Air Pollution Standards webpage...

Fracking Fluids Disclosures

Posted on July 08, 2011
  One of the earliest and most frequently expressed public concerns has been the lack of readily available information about the materials used in hydraulic fracturing. Over the last several months, steps have been taken to address that concern by industry, regulatory agencies and public interest groups...

District Court Stays EPA's Emergency SDWA Order

Posted on July 05, 2011
  One of EPA's strategies for addressing potential environmental effects of fracking is to issue emergency orders under the Safe Drinking Water Act, 42 U.S.C. §300i(a), in situations that may present an imminent and substantial endangerment to health...

New York DEC Recommendations

Posted on July 04, 2011
  On July 1, New York Department of Environmental Conservation issued recommendations based on its hydraulic fracturing review. The recommendations revise several positions in the DEC's 2009 draft Supplemental Generic Environmental Impact Statement (SGEIS) report...

Update on EPA Fracking Guidance - Legal Challenges

Posted on July 04, 2011
  Despite requests from industry and environmental groups to initiate formal notice-and-comment rule-making, EPA continues to proceed with its plans to address potential environmental impacts of fracking through guidance documents rather than through rule-making...

EPA Selects Seven Fracking Case Study Sites

Posted on June 23, 2011
EPA announced today that it has selected seven case studies located in various formations at locations across the country. EPA believes these locations and case studies will provide the most useful information about the potential impacts of hydraulic fracturing on drinking water resources under a variety of circumstances...

Texas Requires Disclosure of Fracking Fluid Components

Posted on June 22, 2011
On June 17, 2011, Texas Governor Rick Perry signed a bill requiring natural gas producers to disclose information about the chemicals used in their hydraulic fracturing fluids. Texas is the first state to enact such a law.  Under the new law, operators are required to "complete the form posted on the hydraulic fracturing chemical registry Internet website of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission' with respect to the well in which fracking fluids are used...

Developments in IPAA et al. v. EPA

Posted on June 19, 2011
  In January, oil and gas industry trade associations, including the Independent Petroleum Association of America, sued EPA in the U.S. Circuit Court of Appeals for the D.C. Circuit challenging EPA's statements on its website that fracking was subject to the Underground Injection Control program regulations for Class II wells...

EPA Proposes Fracking Guidance - Comments Due June 29

Posted on June 17, 2011
  Last month, EPA presented the planned scope of its guidance 'Permitting for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels' at several stakeholder meetings. EPA will take public comment on its guidance scoping document through June 29...

New York Attorney General Seeks to Shut Down Natural Gas Development in the Marcellus Shale

Posted on June 02, 2011
The Attorney General of the State of New York, Eric Schneiderman, has sued the Army Corps of Engineers, the U.S. Fish and Wildlife Service, the National Park Service, the U.S. Dept. of the Interior, and U.S. EPA  (the "Federal Agencies") in federal district court in the Eastern District of New York, seeking to shut down natural gas development in areas of the Delaware River Basin, including areas over the Marcellus Shale...

Congresswoman DeGette Requests Frac Hearing

Posted on May 27, 2011
On Thursday, May 26, 2011, Representative Diana DeGette (D – CO), together with Representatives Harry Waxman (D – NY) and Edward Markey (D – MA) requested that the House Committee on Energy and Commerce hold hearings to address the use of hydraulic fracturing in natural gas production...

Whole Lot of Shakin' Going On: Fracking and Seismic Activity Claims

Posted on May 26, 2011
This is the second in a series of blog postings addressing the spate of oil and gas extraction cases filed in the month of May in Arkansas.    Lane v. BHP Billiton Petroleum (Arkansas) Inc. et al., is a class action complaint filed in the Circuit Court of Faulkner County, Arkansas, on May 20, 1010...

Toxic Tort Fracking Litigation Hits Arkansas

Posted on May 26, 2011
Three new class action toxic tort fracking cases were filed in May with respect to gas extraction operations in the Fayetteville Shale deposits in central Arkansas.  The three cases illustrate the recent trend of attempting to use traditional and sometimes novel toxic tort theories to pursue common law claims against companies involved in all phases of gas extraction operations...

Experts - Daubert Motions Should Not Be Routine

Posted on November 06, 2008
Both plaintiffs and defendants in toxic tort cases routinely file Daubert motions seeking to exclude the other sides’ experts. Often, the motions are based on serious questions about the qualifications of an expert or the expert’s methodology and seek to exclude “junk science...

Class Certification - Medical Monitoring

Posted on November 05, 2008
It continues to be difficult to predict the outcome of motions to certify classes in toxic tort cases. In a recent medical monitoring case in West Virginia, Rhodes v. E.I. du Pont de Nemours & Co.,     F.R.D.     , 2008 WL 4414720 (S...

No Perchlorate MCL

Posted on November 04, 2008
 Last month, EPA reached a “preliminary determination” not to regulate perchlorate in drinking water. Unless EPA changes its position, there will be no national primary drinking water regulation or Maximum Contaminant Level (“MCL”) established for perchlorate...

Hiring Counsel for an Environmental Toxic Tort Case - Part 3

Posted on October 28, 2008
Continuing with my series of posts on “Hiring Counsel for an Environmental Toxic Tort Case,” this week I address the third criterion - FAIRNESS The criterion of Fairness is slightly different for plaintiffs than for defendants, but it essentially relates to whether you are charged a fair price for the lawyer’s help...

Hiring Counsel for an Environmental Toxic Tort Case - Part 2

Posted on October 21, 2008
Continuing with my series of posts on “Hiring Counsel for an Environmental Toxic Tort Case,” this week I address the second criterion - COMMITMENT.  Commitment applies to both plaintiff and defendant. You want the lead lawyer and his/her team to commit fully to your case...

Hiring Counsel for an Environmental Toxic Tort Case

Posted on October 14, 2008
Since I started blogging on environmental toxic torts earlier this year, I received several emails from readers asking me questions about choosing an attorney to represent them in an environmental toxic tort case. Unlike most of the issues I address, there are no cases on point...

New ASTM Vapor Intrusion Standard

Posted on April 15, 2008
In March 2008, ASTM International issued its Standard E2600-08 entitled “Standard Practice for Assessment of Vapor Intrusion into Structures on Property Involved in Real Estate Transactions.”   The goal is to identify whether there is a potential for a vapor intrusion condition to exist...

Later Discovered Environmental Conditions Are Not Title Defects

Posted on February 20, 2008
As is probably no surprise to lawyers and real estate professionals, a Pennsylvania appeals court held that title insurance does not protect a buyer from claims arising from the physical condition of the property such as later discovered environmental problems like asbestos, lead paint or abandoned septic tanks...

Summary Judgment After Exclusion of Property Damages Expert Opinion

Posted on February 20, 2008
Often Daubert or similar motions are the key pre-trial motions in environmental toxic tort cases because exclusion of an expert, particularly the plaintiff’s causation or damages expert, provides the basis for a summary judgment in favor of the defendant...

"Stigma" Property Damages Rejected

Posted on February 20, 2008
Often, plaintiffs in environmental toxic tort cases seek to recover property damages based on a theory that contamination or other environmental conditions have imposed a “stigma” on the property. Sometimes the property is itself contaminated or formerly contaminated...

A PRP Cannot Recover From Other PRPs For Response Costs Paid By Insurer

Posted on February 20, 2008
In Friedland v. TIC - The Industrial Co., et al., Case No. 1:04-cv-01263-REB-KLM, slip opinion issued on January 18, 2008, the United States District Court for the District of Colorado joins two other federal district courts in refusing to allow a CERCLA potentially responsible party to collect response costs from other potentially responsible parties when those costs were paid by an environmental or other insurance policy...

Cause of Action for Medical Monitoring Rejected by North Carolina Court of Appeals

Posted on February 20, 2008
For a number of years, environmental toxic tort plaintiffs have sought to recover future medical monitoring expenses because of alleged exposures to chemicals even though they may not have any present physical injury. Appellate courts in several jurisdictions have recognized such claims...

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