Law blog roundup

Welcome to Monday, a day on which two movies immediately come to mind. And let’s not forget the roundup. Here are some news items to get your week started.

– A New York Times obituary recalls the Pentagon Papers case.

– DNA evidence reaches a milestone.

– How has the BP oil spill affected class-action litigation?

– Detroit newspaper continues battle to get public records on parolees and probationers.

Law blog roundup

Welcome back to the roundup. Friday’s approval of same-sex marriage in New York has advocates hoping that New York’s passage of the law will revive interest here. Read on for more law links.

Gansler, fellow attorneys general send slick letter to BP

The missive Maryland Attorney General Douglas F. Gansler and 10 of his East Coast colleagues sent Monday to embattled British Petroleum reads like the proverbial lawyer’s letter subtly threatening litigation if the Gulf of Mexico oil spill spreads to the Atlantic Ocean.

First, the letter from the 11 attorneys general contains the language of a legal claim for damages.

“Though the immediate area of impact from this catastrophe is in the Gulf region, portions of the East Coast are at foreseeable risk of substantial harm,” the letter states (emphasis added). “Even if our coast waters and communities are not directly impacted, there may well be significant harm to the migratory bird and fish species that form an important part of our natural resources and economy.” Continue reading

Exxon update: MDE will consider the request to reconsider

Following reports by our own Danny Jacobs and others that the Maryland Department of the Environment had decided to lift some of Exxon’s remediation requirements in the area of the massive 2006 Jacksonville gasoline leak — a decision made without input from those who live near the site, and which the agency seemed loathe to revisit — MDE Secretary Shari T. Wilson heard from her boss.

The upshot was an after-business-hours e-mail to the media from Wilson’s office. Received here at 6:24 p.m. Tuesday, it says, in part:

MDE today received a request from Governor Martin O’Malley to carefully and expeditiously review the citizen’s request to reconsider the decision allowing ExxonMobil to discontinue supplying bottled water. MDE will, of course, do so. This review, and previous decisions, are reviewed by scientists with expertise in groundwater, public health, and subsurface remediation.

Just to be clear, Wilson isn’t saying MDE has changed its mind, or that it will change its mind — only that it will think about the homeowners’ request that it change its mind.

Creamery stalled by second lawsuit

The last time I wrote about the Prigel Family Creamery was in July, when Bobby Prigel and his Bellevale Farm Inc. received a $250,000 loan from the county for their proposed creamery and store.

It turns out that shortly after the loan was announced, opponents of the Glen Arm business filed a second lawsuit against the creamery seeking to halt its opening. (The first lawsuit, arguing the creamery is prohibited under a state easement regulation, is on appeal.)

The second lawsuit, which also names the the state Department of Health and Mental Hygiene, alleges Prigel did not submit all “plans, specifications and other information” as required by DHMH, and that DHMH is awaiting final plans even after the building’s shell has been completed. The lawsuit is specifically concerned about a “lack of a plan for wastewater treatment,” which could harm the groundwater used by the Prigels’ neighbors.

Lawyers for Prigel, in seeking to dismiss the complaint, point out the creamery has not applied for nor been issued a milk processing permit and that the building itself remains unused and vacant. A lawyer for DHMH, in a similar motion, called the complaint “premature” and said the public would be better served by the lawsuit’s dismissal.

“DHMH’s willingness and availability to work with permittees prior to the submission of an application is exactly the kind of service the citizens and State desire and deserve,” the motion states.

Judge H. Patrick Stringer denied a defense motion to dismiss the lawsuit during a hearing last week in Baltimore County Circuit Court on grounds that the defense did not directly address the plaintiffs’ claims in its motion to dismiss. Stringer denied the motion without prejudice, however, meaning Prigel could file another motion to dismiss in the future.

Following the hearing, Prigel’s lawyers indicated they were gathering evidence from DHMH to show compliance with state building regulations.

This Week in Maryland Lawyer

On the cover: With their progressive pilot potentially on the chopping block, the OPD’s Neighborhood Defenders in Park Heights are defending not only their clients but their problem-solving approach. Also, Caryn Tamber talks to University of Maryland law professor Danielle Citron about her research into online gender harassment and the law.

In the news: An EPA official says the agency wants more weapons in its arsenal; Maryland’s top court upholds a sex-abuse conviction based on the testimony of a 6-year-old victim; Mike’s Train House is sued for infringement; and an offshoot of the “driving while black” case will be the subject of a rare Court of Special Appeals en banc hearing.

 Also:

  • Verdicts & Settlements features the case of an HIV-positive teacher who was fired from his job at a private elementary school in Arnold.

  • Before there was “The Power of Nice” or his success as a sports agent, there was the Modern Bar Review Course. In My First/Business, Ron Shapiro reflects on the lessons learned from his initial foray into commerce.

  • In Opinion/Commentary, Jack L.B. Gohn weighs in on the narrowing difference between blogs and journalism, while Edward J. Levin points out a key requirement under a Maryland deed of trust: naming an individual as the trustee. 

  

Superfund can still save the day

Before two federal environmental lawyers talked about recent government victories during Friday’s ABA section meeting, Bruce Gelber discussed a recent government loss in the Supreme Court involving Superfund sites.

In May, the high court ruled Shell Oil Co. was not liable as a party that arranged to dispose of hazardous materials under the Comprehensive Environmental Response, Compensation and Liability Act at a contaminated California site.

Gelber, chief of the Justice Department’s Environmental Enforcement Section, said the ruling will not impact many other Superfund cases due to an “atypical fact pattern, including the contaminant not being waste or byproduct.”

“The rumor of CERCLA’s demise has been greatly exaggerated,” he said. 

 The high court also upheld a ruling that apportioned liability to another company connected to the groundwater contamination. Gelber said the government does not dispute the divisibility rule, only its application here.

The goverment will continue to resist divisibility in Superfund cases where it believes the harm is “not theoretically apportioned,” he said.

Gelber concluded with some advice for the private practice lawyers in the audience.

“Tell your clients to create a paper trail that shows you undertook some steps to show how dangerous it can be to handle your material,” he said.

Exxon deja vu? Kind of

An Exxon station in Northern Baltimore county closed last week because of an underground leak that apparently went unnoticed for several weeks. Exxon has taken full responsibility for the problem and has agreed to reimburse those affected by the leak.

Sound familiar? In fact, this Exxon station is located on Mount Carmel Road in Hereford (I-83, Exit 27). And the underground leak involved brine, a salty solution used to prevent the gasoline from freezing. The brine, which sits outside the gasoline tank, entered a regular, unleaded gasoline tank through a hole in the lining, according to news reports.

The contaminated gas has caused approximately 100 cars to shut down, local mechanics said. The mechanics have to empty the car’s gas tank and replace its fuel injector and pump.

Exxon has set up a 24-hour hotline for any people dealing with car problems from the station. The Maryland Department of the Environment, meanwhile, is looking into possible fines against Exxon for failing to report the leak; it learned of the problem from a citizen who saw the station’s gas pumps closed one day last week.

Both Exxon and MDE have said the leak did not spread into the environment.

More on Exxon: Is Snyder’s $150M win really a loss?

snyder-stephen3mf.jpgStephen Snyder was denied the billion-dollar verdict he had hoped for — the first of his career — but it’s hard to feel too sorry for him. His team estimates today’s total award in this lawsuit, stemming from a five-week, 26,000-gallon gasoline leak at a Jacksonville Exxon station, at $150 million.  (I may have missed one, but it’s at least the fifth verdict above $100M of Snyder’s career.)

Still, the jury rejected claims of fraudulent concealment, which means no punitive damages, which means no billion-dollar verdict. As a result, I’ve already heard a couple people refer to this as a loss. They figure Snyder set the bar at a billion, then failed to clear it. What do you think?

Video: Gansler tours Chester River

Photographer Eric Stocklin joined Maryland Attorney General Doug Gansler on a boat tour of the Chester River yesterday, a body of water shared by Kent and Queen Anne’s County on the Eastern Shore.

The group was led by Tom Leigh of the Chester River Association, who presented findings on the health of the river.

A recent report by the state Dept. of Natural Resources on Maryland’s major tributaries identified five threats to water quality in the basin; the Chester River was rated “severely stressed” in four of them and “moderately stressed” in the fifth.

Gansler, you may know, has started a campaign (PDF) to look for ways to cut pollution in state waterways.

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