Gravel2Gavel Construction & Real Estate Law Blog

In A New Day in Chemical Regulation, Pillsbury attorneys Matt Morrison, Sheila McCafferty Harvey, Reza Zarghamee, and Brendan J. Hennessey discuss what you need to know about the “Frank R. Lautenberg Chemical Safety for the 21st Century Act”. The Act makes sweeping amendments to the Toxic Substances Control Act (TSCA). The long-awaited changes significantly strengthen EPA’s authority to take action to ban or restrict the manufacturing, processing, or use of chemicals that may pose an unreasonable risk of injury to human health or  the environment.

On June 6, the Supreme Judicial Court of Massachusetts released an opinion of considerable importance to petroleum retailers in Massachusetts. In Peterborough Oil Company, LLC v. Department of Environmental Protection, the Court interpreted the term “Oil” as used in the Massachusetts Department of Environmental Protection’s (DEP) regulation (the “Oil exemption”) implementing the Massachusetts Oil and Hazardous Materials Release Prevention Act. The Act is in many ways the state’s counterpart to the federal Superfund or Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). The Court ruled that the term “Oil,” as defined in Section 2 of the Act and interpreted by the DEP, is not subject to the kind of “petroleum exclusion” that is part of CERCLA. Indeed, under CERCLA, leaded gasoline, the substance at issue here, would likely have been exempted by CERCLA from most cleanup requirements.

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On June 1, 2016, the U.S. Court of Appeals for the Seventh Circuit issued an interesting ruling in Beatrice Boyer, et al., v. BNSF Railway Company dba Burlington Northern and Santa Fe Railway Company. It ordered plaintiffs’ counsel to compensate BNSF almost $35,000. The Court of Appeals’ ruling was premised on it concluding:

“We believe the record makes clear that the plaintiffs’ counsel unreasonably and vexatiously multiplied the proceedings by filing [a second] suit in Arkansas, which had absolutely no connection to this case” after its initial complaint filed in Wisconsin was dismissed.

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On June 2, 2016, the U.S. Court of Appeals for the Fifth Circuit addressed another matter of alleged attorney misconduct in a Deepwater Horizon claims case and the District Court’s authority to impose sanctions for misconduct. This controversy also involves former FBI Director Louis Freeh, who was designated a Special Master by the court when allegations of impropriety surfaced involving Andry Lerner, LLC, a firm that represents claimants in the “Court-Supervised Settlement Program” (CSSP). The Fifth Circuit was asked to review the District Court’s sanction of attorneys after determining that the lawyers violated the Louisiana Rules of Professional Conduct (LRPC).

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On May 27, 2016, Vermont’s Supreme Court, in State of Vermont v. Atlantic Richfield Company, et al., ruled that the State of Vermont’s “generalized injury” claims “to state waters as a whole due to groundwater contamination from gasoline additives” are not exempted from Vermont’s six-year statute of limitations for civil claims. The Court affirmed the trial courts dismissal of the State’s claims as time-barred, and confirmed that “the trial court properly interpreted [12 Vt. Stat. Ann.] § 462 as limited to claims of adverse possession” and, in addition, recently enacted 10 Vt. Stat. Ann. § 1390 did not “create a new cause of action that was retroactively enforceable, [empowering] the State to apply the statute to injuries discovered more than six years prior to its complaint.”

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Since the celebrated Supreme Court decision of Tennessee Valley Authority v. Hill, which for a time sidetracked the construction of the Tellico Dam, the Endangered Species Act (ESA) has been recognized as a potentially powerful impediment to the construction of many projects. However, as demonstrated by the Congressional response to that case, the Congress can be persuaded to make exceptions from time to time, rare as that may be. The recent Friends of the Animals ruling by the U.S. Court of Appeals for the DC Circuit is also illustrative of this power of the Congress.

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Construing the Colorado Ski Safety Act of 1979, on May 31, the Colorado Supreme Court, in Fleury v. IntraWest Winter Park Operations Corp., held that a fatal avalanche that occurred within the bounds of the Winter Park ski resort was an “inherent danger and risk of skiing” and the Act precludes skiers or their families from bringing claims against the operators for any resulting injuries. The Act is part of Title 33 of the Colorado Revised Code governing Wildlife and Parks and Outdoor Recreation. The Act and the protections provided by it illustrate once more the fact that state legislatures often make public policy decisions like this which balance the importance of a particular industry to a state against the risks that the public will knowingly take in engaging in these activities.

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