Environmental Toxic Torts Blog : Colorado Toxic Torts Lawyer & Attorney : Davis Graham & Stubbs Law Firm : Environmental Torts, Property Damage, Class Action

 Last month, EPA reached a “preliminary determination” not to regulate perchlorate in drinking water. Unless EPA changes its position, there will be no national primary drinking water regulation or Maximum Contaminant Level (“MCL”) established for perchlorate. Perchlorate is frequently discovered in soil and water. It is also increasingly the subject of toxic tort litigation. The absence of a clear national standard like an MCL to define “injury” is an element of uncertainty in a toxic tort case and increases the litigation risk for both plaintiffs and defendants. 

See Continue Reading for: why is perchlorate important; what are perchlorate sources; and why is the lack of a perchlorate MCL important.

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The United States District Court for Colorado held that used cooking oil and other nontoxic restaurant wastes are “pollutants” under the pollution exclusion clause in a restaurant owner’s commercial general liability policy. Mountain States Mutual Casualty Co. v. Kirkpatrick, 2007 WL 2506640 (D. Colo. Aug. 30, 2007).   The circumstances leading to this broad definition of “pollutant” began with two workers alleging that they were injured in October 2003 while cleaning sewers located near the Hog’s Breath Saloon & Restaurant in Otero County, Colorado. The workers claimed that Hog’s Breath discharged cooking oil, grease, fat and other food by-products directly into the sewer in violation of several city ordinances. The workers further claimed that nearly five feet of oil and grease had accumulated in the manhole closest to the Hog’s Breath sewer connection. The accumulation of oil and grease allegedly produced hydrogen sulfide gas that was trapped in the manhole and in air pockets within the grease. Both workers were overcome when sewer cleaning began. Both survived but then sued in state district court for among other things, negligence and negligence per se. 

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