Periconi, LLC

September 2014 Archives

Tolling Agreements between PRPs Cannot Negate Settling PRP's Entitlement to Benefit of its Settlement

After settling with EPA and having its settlement upheld in court, a potentially responsible party (PRP) is free from liability to all other PRPs given notice of that proposed settlement under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund). This principle, long recognized as key to CERCLA's successful performance, was recently affirmed by the United States Court of Appeals for the Eighth Circuit in its ASARCO, LLC v. Union Pacific Railroad Company decision. 

Recent Endangered Species Act Verdict Reinforces Traditional Legal Principles

Though the Endangered Species Act has very strong prohibitory language, in practice its bark is sometimes much worse than its bite. The U.S. Court of Appeals for the Fifth Circuit's recent decision in The Aranas Project v. Shaw, et al. has preserved the statute's status as a mere "paper tiger" by reversing a district court ruling which had the potential to preserve the dwindling wild whooping crane population.

Jury Verdict Awarded in Hydraulic Fracturing Case

In a groundbreaking verdict, a Texas jury has awarded damages to a family for injuries suffered due to air pollution from hydraulic fracturing ("hydrofracking") drilling operations. This verdict follows almost inexorably from the rise in popularity in the past decade of hydrofracking as a means of natural gas production, which was quickly met with legal challenges. Between 2009 and 2013, the civil litigation landscape was flooded with lawsuits alleging toxic tort claims stemming from hydrofracking activities. 

County Water Authority has Standing to Sue for Groundwater Contamination, but Timeliness is Governed by New York's Three Year Statute of Limitations

Fixed contaminant standards need not be reached, much less exceeded, in order to cause an injury that courts can recognize. An intermediate appeals court in New York has ruled that the Suffolk County Water Authority may sue chemical companies for groundwater contamination even where the contamination does not exceed an EPA drinking water standard known as a Maximum Contaminant Level. However, this may be a pyrrhic victory, as that same court also ruled that many of the SCWA's claims were too late under New York's three-year statute of limitations for injuries from latent effects of exposure to harmful substances. 

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