Fall 2011 Roundup of Recent Environmental Cases

First up we have a report that an Ohio Judge approved a confidential settlement in the West Virginia coal slurry case against Massey Energy subsidiary Rawl Sales & Processing. The reported payout is $35 million. The plaintiffs alleged that Rawl pumped 1.4 billion gallons of contaminates into abandoned underground mines in Mingo County between 1978 and 1987 and that this contaminated their drinking water wells. (JereBeasley Report and West Virginia Gazette)

Next, Kinder Morgan Energy Partners had a $7.5 million dollar verdict levied against it by a Clark County, Nevada jury. The plaintiff alleged that a tanker-truck worker developed Myelodysplastic Syndrome (MDS) from repeated exposures to benzene. Kinder Morgan tried to argue that benzene is not a carcinogen, that it was not a distributor of benzene-containing gasoline, and that it only operated a storage facility. Kinder Morgan had reportedly offered $20,000 to settle before trial. (JereBeasleyReport and BreakingLawsuitNews.com)

A federal court in Pennsyvania dismissed an EPA lawsuit against a power plant for modifying two electric generatinig units without the required permits and emissions controls. The judge ruled that the statute of limitations for the action had passed. The modifications had taken place from 1991 through 1996 by prior owners of the power plant. The court found that there was a five-year statute of limitations. The current owners were found to be not liable for injunctive relief as they did not own the plant at the time. The former owners were not liable for injunctive relief because they no longer owned the plant. United States v. EME Homer City Generation LP

A Michigan developer was recently held to be potentially liable under Superfund when it tore up a concrete slab in order to develop the property. The property was already contaminated with vinyl chloride. It was alleged that by tearing up the pad rainwater would infiltrate into the soil and cause the vinyl chloride to migrate. This migration, it was argued, would constitute a “release” of hazardous substances into the environment. The judge held that this was not an instance of passive migration but active migration. The court found that this fact prohibited the court from dismissing the case.
Saline River Properties, LLC, v. Johnson Controls, Inc. (E.D. Mich. Octover 17, 2011) Case Number 10-10507 and 10-13406.

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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