Dioxin in the Courts

October 31, 2015

New Jersey Group Files FOIA Suit Against EPA Relating to Diamond Alkali Superfund Site

A lawsuit has been filed in the U.S. District Court for the District of New Jersey against the U.S. Environmental Protection Agency (“EPA”) under the federal Freedom of Information Act (“FOIA”). The plaintiff is seeking agency records related to the proposed cleanup of the Diamond Alkali Superfund Site.

The Site

The Diamond Alkali Superfund Site is the subject of the EPA’s “Superfund Proposed Plan for the Lower Eight Miles of the Lower Passaic River Part of the Diamond Alkali Superfund Site” (the “Proposed Plan”) based on the multi-year Focused Feasibility Study (“FFS”) of an eight-mile section of the Lower Passaic River, in New Jersey, to evaluate cleanup options to address contaminated sediment in the river.

The Diamond Alkali Superfund Site was added to the National Priorities List in 1984 and, according to the EPA, includes the former pesticides manufacturing plant and surrounding properties at 80 and 120 Lister Avenue in Newark, New Jersey, the Lower Passaic River Study Area, and the Newark Bay Study area. Pursuant to a 2004 settlement agreement with EPA Region 2, as amended, the Lower Passaic River Study Area Cooperating Parties Group (the “CPG”) provided the EPA with over $13,000,000 in funding for a Remediation Investigation/Feasibility Study (“RI/FS”) of the entire 17-mile Lower Passaic River Study Area (“LPRSA”).

The Proposed Plan, if adopted, would remove 4.3 million cubic yards of sediment from the lower eight miles of the Passaic River in what the EPA has described as the “largest cleanup in EPA history.”

The plaintiff in the FOIA lawsuit against the EPA is the CPG, an unincorporated, voluntary association of more than 60 companies whose purpose is to conduct an RI/FS within the LPRSA. The CPG said that, since 2007, it has spent more than $130 million on the RI/FS, which it submitted to the EPA in 2015.  The RI/FS is a mandatory step in the remedy selection process required by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the National Contingency Plan (“NCP”).

Challenging the Proposed Plan

The CPG alleged in its lawsuit that it had conducted an eight-year remedial investigation under the EPA’s oversight and was tasked with completing a feasibility study to determine a cost-effective and adequate remedy in accordance with the NCP and CERCLA. The CPG contended that the EPA “appears to have ignored much of this data” and that it has proposed a “technically questionable, costly, and massive bank-to-bank dredge-and-cap remedy in its Proposed Plan.”

According to the CPG, the Proposed Plan would disrupt the regional economy and community due to bridge openings, barge-movement restrictions, and vehicular and rail traffic delays.

The CPG complained that the EPA failed to produce agency records related to the FFS and the Proposed Plan that were sought by the CPG in its FOIA requests and that the EPA improperly asserted privileges to avoid producing all of the requested records.

The CPG said that the records it requested included information that was necessary and important for the CPG to effectively evaluate and comment effectively on the Proposed Plan, and when it is issued, the Record of Decision (“ROD”), and to understand what the EPA did or did not consider with respect to the Proposed Plan.

The deadline for commenting on the Proposed Plan was August 20, 2014 and the CPG said that it timely submitted comments to the Proposed Plan, challenging the appropriateness of the FFS and Proposed Plan on many grounds, albeit without the benefit of a review of the FOIA-requested material that the EPA had not produced.

The CPG said that it sought EPA agency records that should have been considered by the EPA as part of its supporting analysis in preparing the Proposed Plan and the FFS, but that the information it requested was not part of the administrative file and, as a result, the CPG was not able to adequately comment on all aspects of the Proposed Plan and the FFS by the deadline.

The CPG has asked the court to rule that the EPA wrongfully withheld requested records, to order the EPA to disclose to the CPG all wrongfully withheld documents, and to award the CPG its attorneys’ fees and costs.

Next Steps

We will continue to monitor this lawsuit and discuss developments as warranted.

Monsanto Faces Amended “Roundup” Complaint in California

Plaintiffs have filed an amended complaint against Monsanto Company, Inc., in the U.S. District Court for the Central District of California over the herbicide glyphosate, which is sold and marketed under the brand name Roundup.

The IARC Classification

The amended complaint references the formal monograph issued on July 29, 2015 by the International Agency for Research on Cancer (“IARC”), an agency of the World Health Organization (“WHO”), relating to glyphosate, in which the IARC Working Group classified glyphosate as a Group 2A herbicide, meaning that it is “probably carcinogenic to humans.”

The amended complaint asserted that the IARC evaluation was significant in that it “confirms what has been believed for years: that glyphosate is toxic to humans.”

The amended complaint then asserted that, “[n]evertheless,” Monsanto has represented Roundup as safe to humans and the environment and has “repeatedly proclaimed and continues to proclaim to the world, and particularly to United States consumers, that glyphosate-based herbicides … create no unreasonable risks to human health or to the environment.”

In their amended complaint, the plaintiffs alleged that exposure to Roundup caused them to develop multiple myeloma, Non-Hodgkin’s Lymphoma (“NHL”), and “other serious illnesses.”

Contending that the statute of limitations should be tolled for various reasons, the plaintiffs asserted claims alleging strict liability for defective design, strict liability for failure to warn, negligence, and breach of express and implied warranties.

The plaintiffs are seeking compensatory and punitive damages as well as attorneys’ fees, court costs, and other litigation expenses.

Next Steps

We will continue to monitor this lawsuit and discuss developments as warranted.

Learn more: “Monsanto Empanels Group to Review IARC Classification of Glyphosate.”

 

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