Environmental Law Portal

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Beveridge & Diamond’s 100 lawyers in seven U.S. offices focus on environmental and natural resource law, litigation and dispute resolution. We help clients around the world resolve critical environmental and sustainability issues relating to their products, facilities, and operations. 

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Westport’s Novel Claims for PCB Remediation Costs End at First Circuit

The Town of Westport cannot recover clean-up costs from manufacturers of PCBs used in caulk at the town’s middle school under a variety of common law and statutory theories, according to a ruling by the First Circuit in Town of Westport v. Monsanto Company , Case No. 17-1461 (December 8, 2017).  The decision ends a pair of novel cases brought by Massachusetts towns looking to the PCB manufacturers to pay for remediation at school sites. Read More ›

Academic Institutions: When Renovating, Where Do Your PCBs Go? EPA Region 1 Enforces Against University for Improper PCB Disposal

The University of Connecticut will pay $28,125 as part of a settlement with U.S. EPA resolving allegations that UConn improperly disposed of PCB-contaminated soils during a renovation project in 2013.  Academic institutions with buildings built or renovated in the 1950s, 60s, and 70s need to be particularly careful to use knowledgeable contractors and consultants as many building materials from that time period contain PCBs, the disposal of which is carefully regulated.  EPA claimed that UConn transported and disposed of soil contaminated with PCBs from window caulk to a facility not licensed to take the material under an incorrect manifest.   Read More ›

Central Massachusetts Sand and Gravel Company Hit with $120,000 Civil Penalty for Air Violations

Kimball Sand Company, Inc. agreed to pay a civil penalty of $120,000 and implement corrective actions as part of a Consent Agreement and Final Order resolving allegations that Kimball operated stone crushing and processing equipment and engines/generators in violation of the federal Clean Air Act.  As part of the settlement, Kimball agreed to other corrective actions as well as the penalty.  This enforcement action is a reminder to all businesses, whether large or small, of their initial and continuing obligation to determine if their equipment and operations trigger federal CAA requirements, or in the alternative face potentially significant civil penalties. Read More ›

Supreme Judicial Court Sets Limitation on Chapter 40B’s Broad Grant of Authority to Local Zoning Boards

In a rare limitation on the broad scope of Massachusetts’ affordable housing law, the state’s top court ruled that amendments by a local board to municipally owned deed restrictions are not covered by the law. Read More ›

Massachusetts Land Court Applies New Article 97 Guidance and Denies Constitutional Protection to Land Purchased for Water Resource Protection and Compatible Purposes

We recently reported on a new analytical framework created by the Massachusetts Supreme Judicial Court in the case of Smith v. City of Westfield for conducting analyses to determine whether Article 97 state constitutional protections will apply to restrict development of land held for conservation and natural resource protection purposes. See Playground Permanently Dedicated and Used As a Public Park Earns Massachusetts Constitutional Protections of Article 97 .   In the first judicial decision to apply this Article 97 guidance, the Massachusetts Land Court has held that a property conveyed to a town “for the purposes of protection of water resources and other compatible purposes including conservation a recreation” was not protected land under Article 97, and therefore could be leased to install a solar facility.  Mirkovic v. Guercio , 2017 WL 4681972 (Mass. Land Court, Oct. 18, 2017). Read More ›

Competing Cosmetic Safety Bills Would Each Expand FDA Regulatory Authority

On October 25, 2017, Senator Orin Hatch (R-UT) introduced S. 2003 , the “FDA Cosmetic Safety and Modernization Act.” [1] The proposed legislation would amend the Federal Food, Drug and Cosmetic Act of 1938 (“FFDCA”) and allow the Food and Drug Administration (“FDA”) to regulate finished cosmetic products based on their safety and the safety of their components. Senator Hatch’s legislation presents an alternative to the Personal Care Products Safety Act ( S. 1113 ), a bill reintroduced in May 2017 by Senators Dianne Feinstein (D-California) and Susan Collins (R-Maine). [2] The Senate referred the bill to the Health, Education, Labor, and Pensions Committee on
October  25, 2017. Read More ›

Connecticut Launches New and Incentivized Brownfields Program

On October 31, Governor Dannel Malloy signed into law Connecticut’s bipartisan budget bill , which provides for a tax incentive plan to support brownfields remediation and reuse.  The new plan, called the 7/7 Brownfields Program, aims to provide a series of income, sales, and property tax incentives to property owners for redeveloping and utilizing brownfields that have been abandoned or underutilized.  Read More ›

Property Ownership and Water Supply Sources Matter in PFOA Contamination Lawsuits

Illustrating some limitations on common law claims for groundwater contamination, a federal court in New York partially granted and partially denied a motion to dismiss in a cluster of sixteen lawsuits alleging perfluoroocatanoic acid (PFOA) contamination in a village’s groundwater.  Benoit v. Saint-Gobain Performance Plastics Corp. , No. 16-cv-930, 2017 WL 3316132 (N.D.N.Y. Aug. 2, 2017).  The opinion showed how certain intricate issues such as property ownership and source of water supply can alter the outcome of a tort claim even at the pleading stage.  The order was certified for interlocutory appeal to the Second Circuit. Read More ›

Washington State’s Suit Against Monsanto Remanded to State Court

Clarifying the application of a doctrine called “federal officer jurisdiction,” a federal judge in Washington held that the federal government’s actions involving procurement of polychlorinated biphenyls (PCBs) from Monsanto were not enough to show that Monsanto was supervised or influenced by the government. See Washington v. Monsanto Co. , No C17-53RSL (W.D. Wash. July 28, 2018). Washington originally brought suit against Monsanto in December 2016 alleging statewide PCB contamination under state product liability theories. Monsanto removed the suit to federal court asserting federal question jurisdiction and federal officer jurisdiction, which can be invoked by a private party if it is “sued for acts performed while acting under a federal agency or officer.” Read More ›

PCB Nuisance Suits from Three California Cities Stayed Pending Administrative Decision

Showing how administrative claims can derail coexistent judicial actions, a federal court in California asked three California cities to first exhaust their administrative claims seeking state compensation for the cities’ treatment of polychlorinated biphenyls (PCBs) in stormwater discharge before they can sue Monsanto Co. in court for tort damages.  San Jose v. Monsanto Co. , No. 5:15-cv-03178 (N.D. Cal. Aug. 4, 2017).  The court will freeze the cities’ tort actions against Monsanto until February 8, 2018, when the state agency will have a chance to hear the cities’ administrative claims. These claims seek state reimbursement for complying with PCB discharge standards that the state made more stringent in 2015 without providing funding assistance. Read More ›

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