Mealey's Pollution Liability : Mealey's : Legal News & Analysis

Mealey's Pollution Liability

September 11, 2023
In Contamination Dispute, Landfill Operator Is Not Entitled To Summary Judgment

SAN DIEGO — The operator of a landfill that allegedly contaminated groundwater near a new development is not entitled to summary judgment on claims brought against it by the developer because genuine issues of material fact exist regarding the claims, a California federal judge found in denying the operator’s motion for summary judgment.
September 06, 2023
9th Circuit: EPA Letter Discussing Clean Air Act Not Final Agency Action

ANCHORAGE, Alaska — A letter from the U.S. Environmental Protection Agency to Chevron U.S.A. Inc. explaining that the companies’ decommissioning of oil and gas drilling platforms on the Outer Continental Shelf (OCS) might be subject to the Clean Air Act (CAA) is not reviewable because it is not a final agency action, a Ninth Circuit U.S. Court of Appeals panel said in holding that it lacked jurisdiction over the company’s petition for review of the letter.
September 06, 2023
Questions Exist About Whether Emissions-Altering Devices Were Used In Cars

GREENSBORO, N.C. — Whether a manufacturer violated the Clean Air Act (CAA) by making products that were designed to defeat federally required emissions controls in motor vehicles is a question of fact that must be decided at a later stage of the proceedings, a North Carolina federal judge found in denying the manufacturer’s motion to dismiss claims brought against it by the United States.
September 06, 2023
D.C. Federal Judge: It’s Too Late To Revert Clean Water Act Permit Program

WASHINGTON, D.C. — Seven environmental groups are not entitled to summary judgment on one of their claims that the Environmental Protection Agency violated the Administrative Procedure Act (APA) when it approved Florida’s application to oversee a Clean Water Act (CWA) permitting program in December 2020 because the groups effectively sought to transfer the program back to the U.S. Army Corps of Engineers, which would not be feasible given how much time has passed, a Florida federal judge found in denying the groups’ renewed motion for partial summary judgment.
August 31, 2023
California Federal Judge Finds Several Companies Liable For Smelter Pollution

LOS ANGELES — Following a bench trial, a California federal judge reached a verdict on liability and concluded that several companies are prima facie liable under the Comprehensive Environmental Response, Compensation, and Liability Act and California’s Hazardous Substance Account Act (HSAA) for pollution released from a secondary lead smelter that contaminated the nearby air and groundwater.
August 28, 2023
Conflicting Expert Testimony Prevents Summary Judgment In Contamination Dispute

SAN DIEGO — Genuine issues of material fact exist about Resource Conservation and Recovery Act (RCRA) claims brought by a property developer against an automobile recycling company and the operator of a landfill over the alleged contamination of groundwater near a new development because the parties presented contradictory expert testimony, a California federal judge found in denying the developer’s motion for summary judgment.
August 28, 2023
U.S. Weighs In On CERCLA Statute Of Limitations Dispute Before Supreme Court

WASHINGTON, D.C. — The United States filed an amicus curiae brief arguing that a judgment of liability without a corresponding imposition of costs or award of damages does not trigger the three-year statute of limitations for contribution costs under the Comprehensive Environmental Response, Compensation and Liability Act.
August 28, 2023
Pollution Liability Insurer Says Bad Faith Suit Must Be Heard In Federal Court

SEATTLE — An insured’s complaint alleging claims for breach of contract and bad faith arising out of a commercial general liability and pollution liability insurer’s denial of coverage for underlying bodily injury suits stemming from exposure to chemicals distributed by the insured must be removed to Washington federal court because diversity of citizenship exists and the amount in controversy exceeds the federal jurisdictional minimum of $75,000, the insurer says in a notice of removal.
August 25, 2023
Magistrate Judge Grants And Denies Summary Judgment Motions In River Pollution Row

SACRAMENTO, Calif. — In granting one and denying another motion for summary judgment, a California federal magistrate judge found that an environmental group sufficiently established standing and that the operator of an equestrian center discharged pollutants into waters of the United States for the purposes of the Clean Water Act (CWA).
August 25, 2023
10th Circuit Says EPA Misapplied Discretionary Guidelines To Emissions Plan

DENVER — In disapproving a portion of Wyoming’s state implementation plan (SIP) for reducing emissions at several power plants within its borders, the U.S. Environmental Protection Agency incorrectly treated some of its discretionary guidelines as mandatory, a 10th Circuit U.S. Court of Appeals panel found in vacating a portion of the agency’s final rule on the SIP.
August 25, 2023
Reinsurer Wins Permission To Seal 2 Agreements In Cleanup Costs Coverage Row

PADUCAH, Ky. — A Kentucky federal magistrate judge on Aug. 24 granted a motion to seal a third-party administrative services agreement (ASA) and a reinsurance agreement, saying the entities involved have a compelling interest that “outweighs the public’s interest in accessing” the documents and that redaction would be “impractical.”
August 24, 2023
In Permit Dispute, New York Federal Judge Dismisses Clean Water Act Claims

ROCHESTER, N.Y. — Three environmental groups that challenged a state pollutant discharge elimination system (SPDES) permit issued by the New York State Department of Environmental Conservation (NYSDEC) to the owner and operator of a power plant failed to state a claim because they alleged that the state renewal application submitted by the owner failed to comply with federal regulations which it was not subject to, a New York federal judge found in dismissing their complaint.
August 23, 2023
In Mine Cleanup Dispute, Colorado Federal Judge Approves Interlocutory Appeal

DENVER — Controlling questions of law exist about whether the Comprehensive Environmental Response, Compensation, and Liability Act’s statute of limitations bars contribution claims brought by the owner of a former mine site against a smelting company whose predecessors contributed to the pollution of the site, a Colorado federal judge held in granting the owner’s motion for interlocutory appeal.
August 21, 2023
N.C. Federal Judge Denies Summary Judgment Motions In Wastewater Contamination Row

STATESVILLE, N.C. — Genuine issues of material fact exist about statutory and other defenses to Comprehensive Environmental Response, Compensation, and Liability Act claims brought by an adhesive manufacturer that sued numerous parties for allegedly failing to clean totes of contaminated wastewater produced by the manufacturers’ operations and stored on a separate property, a North Carolina federal judge found in denying the manufacturer and a defendant-property owner’s motions for summary judgment.
August 21, 2023
Shrimping Activities Not Covered By Clean Water Act, 4th Circuit Concludes

RICHMOND, Va. — Shrimpers that operated in North Carolina’s Pamlico Sound did not violate the Clean Water Act (CWA) through their fishing operations because returning bycatch to the ocean is not forbidden under the law and displacing sediment with trawl nets merely kicks up materials already present in the sound, a Fourth Circuit U.S. Court of Appeals panel found in affirming a trial court’s judgment.
August 18, 2023
Calif. Federal Judge Denies Injunction In Dispute Over New Water Quality Standards

SACRAMENTO, Calif. — Two trade associations are not entitled to a preliminary injunction preventing the enforcement of California’s new water quality standards because they failed to show that they will suffer irreparable harm if the standards are enforced or are likely to succeed on the merits of their claims that the adoption of the standards was arbitrary and capricious, a federal judge in California found in denying the associations’ motion for a preliminary injunction.
August 18, 2023
Maryland High Court Affirms Approval Of Animal Feeding Operations Permit

ANNAPOLIS, Md. — The Maryland Department of the Environment’s decision to approve a general permit regulating animal feeding operations (AFO) was not arbitrary or capricious because the permit is reasonable and consistent with the Clean Water Act (CWA) and applicable state law, a majority of the Maryland Supreme Court held in reversing a trial court’s decision to remand the permit.
August 17, 2023
Nonprofit Says Its Ohio Train Derailment Claims Against EPA Are Valid

YOUNGSTOWN, Ohio — A nonprofit organization has filed a brief in Ohio federal court contending that it should deny a motion to dismiss its lawsuit against the U.S. Environmental Protection Agency related to the East Palestine train derailment and the subsequent toxic chemical spill on grounds the EPA and local authorities failed to conduct proper testing for chemical spills and misled members of the public as to whether the air and drinking water were safe.
August 17, 2023
10th Circuit Denies Petition For Review Of Utah’s Air Visibility Plan

DENVER — The U.S. Environmental Protection Agency’s decision to approve Utah’s state implementation plan (SIP) for improving visibility in national parks and wilderness areas was not arbitrary or capricious because the agency rationally explained the methodology it used to test the emissions of power plants that contribute to regional haze, a 10th Circuit U.S. Court of Appeals panel found in denying a petition for review of the decision.
August 16, 2023
Magistrate Judge Rules On 2 Discovery Motions In Landfill Contamination Dispute

COLUMBUS, Ohio — In partly granting one and fully denying a second discovery motion filed by a company sued by the Goodyear Tire & Rubber Co. for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act arising from the cleanup of a former industrial and municipal landfill, an Ohio federal magistrate judge ordered Goodyear to produce evidence of response costs it received through settlement agreements with other potentially responsible parties.
August 14, 2023
Ill. Federal Judge: Judicial Notice Cannot Be Used To Dismiss Contamination Case

CHICAGO — The owner and operator of a gas station cannot use judicial notice to support its argument that claims arising from the alleged migration of hazardous substances from the gas station to a neighboring property are time-barred because the cited documents do not show that the property owner had notice of the contamination, an Illinois federal judge found in denying the owner’s motion to dismiss and request for judicial notice.
August 14, 2023
Norfolk Southern Says It Would Be Premature To Strike Affirmative Defenses

YOUNGSTOWN, Ohio — Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) filed a brief in Ohio federal court arguing that the U.S. Environmental Protection Agency’s motion to strike Norfolk Southern’s affirmative defenses in the consolidated lawsuits brought by Ohio and the U.S. government related to injuries from the train derailment in East Palestine ask the court to prematurely adjudicate the merits of affirmative defenses before any discovery has taken place.
August 11, 2023
Plaintiffs, Railroad Agree To Terms For Filing Amended Train Derailment Case

YOUNGSTOWN, Ohio — Residents and businesses who say they have been injured from exposure to toxic chemicals released from the train derailment in East Palestine, Ohio, and Norfolk Southern, which operates the railroad, have filed a joint motion in Ohio federal court saying Norfolk Southern’s pending motion to dismiss should apply fully to a proposed first amended master consolidated class complaint because of the limited scope of the new allegations it contains.
August 09, 2023
In CERCLA Row, Mo. Federal Judge Says Fact Questions Surround Affirmative Defense

JOPLIN, Mo. — Summary judgment is not appropriate because questions of fact exist about whether the environmental harm caused by phosphogypsum at a former fertilizer plant can be divided among the plant’s former operators, a Missouri federal judge found in denying cross-motions for summary judgment on a divisibility of harm affirmative defense raised by a former operator of the plant, which was sued by a development company that purchased the polluted site and incurred costs.
August 09, 2023
Ind. Federal Judge Allows Intervenors To Seek Fees In Lake Michigan Pollution Case

HAMMOND, Ind. — In adopting a report and recommendation from a magistrate judge, an Indiana federal judge granted Chicago and an environmental group’s motion for leave to file a motion for fees in one of two parallel proceedings concerning a large release of hazardous substances from a steel plant into Lake Michigan.