Dioxin in the Courts

April 27, 2017 | Commercial Litigation | Complex Torts & Product Liability

Lawsuit Seeks Update to Washington’s Clean Water Act Standards

A lawsuit filed by an environmental group in a federal district court in the state of Washington contends that Washington’s aquatic life criteria “for many toxic pollutants” must be updated because the current rules violate the Clean Water Act (“CWA”).

Background

The lawsuit was filed by Northwest Environmental Advocates (“NWEA”), a non-profit environmental organization established in 1969, incorporated in 1983, and organized under Section 501(c)(3) of the Internal Revenue Code, with its principal place of business in Portland, Oregon. NWEA states that its mission is “to work through advocacy and education to protect and restore water and air quality, wetlands, and wildlife habitat in the Northwest, including Washington, and nationally.”

The defendant is the U.S. Environmental Protection Agency (the “EPA”).

The Complaint

According to the complaint, Washington’s water quality criteria intended to protect aquatic life and human health, and the data that the state relies on to establish those criteria “are outdated and inadequate.” The complaint asserts that Washington and the EPA “have known for years that continued use of the state’s outdated toxics criteria violates the CWA and poses a risk of harm to species that are listed as threatened or endangered under the Endangered Species Act (‘ESA’), including Chinook salmon and Southern Resident orca whales, yet neither Washington nor EPA has taken any action to update these aquatic life criteria.”

The complaint asserts that, on August 1, 2016, Washington adopted some new and revised human health water quality criteria; that by letter dated November 15, 2016, the EPA approved some of these criteria while disapproving others; and that shortly thereafter the EPA promulgated federal human health water quality criteria for 74 different toxic pollutants that now are applicable to Washington.

The complaint asserts, however, that the EPA took no action with respect to the human health criteria proposed by Washington for dioxin, arsenic, and thallium, “and as a result Washington’s human health criteria for those three pollutants remain woefully out of date.”

Relief Sought

The NWEA is asking the court to order the EPA to make a determination pursuant to CWA Section 303(c)(4)(B) that Washington’s federally-promulgated water quality toxics criteria for the protection of human health fail to provide full protection for the state’s designated uses; that Washington has failed to adopt the human health and aquatic life criteria as required by CWA Section 303(c)(2)(B) in each triennial review of its water quality standards conducted since 1992; and that the EPA must promulgate federal regulations applicable to Washington setting forth new and revised water quality standards as necessary to meet the CWA’s requirements.  

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$5.9 Billion Lawsuit Filed Against Upstate N.Y. Town and Companies Over Abandoned Landfill

A putative class action lawsuit has been filed against the upstate New York town of Wheatfield, in Niagara County, and against more than a half dozen companies over what the complaint asserts is toxic waste at the Niagara Sanitation Landfill. The plaintiffs are seeking more than $5.9 billion in damages.

The Lawsuit

The lawsuit is against the town and Occidental Chemical Corp., Bell Helicopter Textron, Inc., Saint Gobain Abrasives, Inc., Roe Consolidated Holdings, Graphite Specialties, Crown Beverage Packing, LLC, and Greif, Inc.

According to reports, the plaintiffs found high levels of dioxin at homes near the site.

The lawsuit alleges the “prior and continuing release, discharge, and deposit of toxic and hazardous substances and contaminants onto Plaintiffs’ properties and persons, including but not limited to Aldrin, arsenic, barium, benzo-tricholrides, cadmium, caustics, chlorobenzens, chlordane, chromium, dieldrin, endrin, hexachlorocyclohexane, lindane, lead, mercury, petroleum products, phenol, plating tank sludge, polycyclic aromatic hydrocarbons (PAHs), and polychlorinated biphenyls (PCBs).”

Environmental Study

In March, the New York State Department of Environmental Conservation (“NYSDEC”) announced that it was going to begin a “detailed environmental study” at the site, which is owned by Wheatfield and is located at Nash Road, near the border of North Tonawanda.

The NYSDEC said in a statement that it developed its investigation work plan, called the “Remedial Investigation Work Plan/Scope of Work,” under New York’s State Superfund Program. The NYSDEC said that it will perform the investigation, which will include the installation of monitoring wells and test pits to assess conditions on the site, and determine if any contaminants may be moving off-site into the residential neighborhood.

According to the NYSDEC, the purpose of its investigation is to define the nature and extent of contamination in soil, surface water, groundwater, and any other parts of the environment that may be affected. It said that its investigation “will fully characterize all contamination at the site.”

In 2015, the department completed an interim remedial measure (the “IRM”) at the site to remove wastes from the Love Canal site that had been disposed of there as part of the LaSalle Expressway construction. The NYSDEC then reclassified the site as a Class 2 site from a Class 3 site on the New York State Registry of Inactive Hazardous Waste sites.

The NYSDEC recently reclassified the site due to what it said were “recently identified elevated surface soil contaminants in several locations and the presence of hazardous waste in the subsurface on the site.” The NYSDEC pointed out that once a site has a Class 2 designation, it is authorized to seek out responsible parties who operated and/or disposed of hazardous substances and/or hazardous waste at the site to compel them to complete a comprehensive investigation and remediation of the site. The NYSDEC added that because no responsible parties had agreed to do this investigation, it would spend State Superfund money to complete the investigation and that it “will then take legal action to recover all costs from the parties that are responsible for the site.”

For further information, please contact James V. Aiosa, Paul V. Majkowski, Lawrence S. Han, or your regular Rivkin Radler attorney.

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