Mealey's Pollution Liability
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February 24, 2023
Judge Dismisses, Says Citizens Have No Enforcement Oversight Under Clean Water Act
BOSTON — A citizen group that accused a state water agency of violating the Clean Water Act (CWA) by failing to take enforcement action against industrial polluters has no right of enforcement oversight as the enforcement power lies with the administrator of the U.S. Environmental Protection Agency, a federal judge in Massachusetts ruled after examining the plain language of the CWA, Congress’ intent and case law.
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February 22, 2023
EPA Orders Norfolk Southern To Remediate Chemical Spill From Train Derailment
WASHINGTON, D.C. — The U.S. Environmental Protection Agency on Feb. 21 issued a unilateral administrative order that requires Norfolk Southern Railway Corp. to develop a remediation plan and pay for the costs of cleaning up the soil and groundwater contamination caused by the spill of toxic chemicals during train derailment in East Palestine, Ohio.
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February 21, 2023
N.J. Federal Judge Orders Partial Stay In Raritan River Pollution Dispute
TRENTON, N.J. — A New Jersey federal judge adjourned an upcoming trial and ordered a partial stay of an action brought by two environmental groups who allege that waste from a titanium dioxide plant is polluting the Raritan River because much of the injunctive relief sought by the groups is already being performed by a remedial investigation of the pollution by the New Jersey Department of Environmental Protection (DEP).
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February 21, 2023
Full 5th Circuit Will Review $14.25M Penalty Assessed To Exxon
NEW ORLEANS — In an order released Feb. 17, the Fifth Circuit U.S. Court of Appeals granted en banc rehearing to ExxonMobil Corp., which seeks to undo a $14.25 million penalty for air pollution at a Baytown, Texas, facility, upheld by a divided panel of the court in August 2022.
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February 21, 2023
Washington Federal Judge: Natural Resource Damages Claim Not Unripe
SPOKANE, Wash. — A bid for summary judgment by a smelter accused of disposing millions of tons of toxic slag and liquid effluent into the Columbia River was rejected Feb. 17 by a federal judge in Washington, who said a claim for natural resources damages is ripe.
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February 21, 2023
6th Circuit Grants Remand Of EPA’s Decision To Remove Ohio Air Nuisance Rule
CINCINNATI — A Sixth Circuit U.S. Court of Appeals remanded, but did not vacate, a U.S. Environmental Protection Agency decision to remove an air nuisance rule (ANR) from Ohio’s state implementation plan (SIP) to the agency for review because the EPA sought voluntary remand and Ohio, the only party to oppose remand, failed to provide rationale for its position.
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February 15, 2023
Federal Judge Partially Dismisses Municipal Board’s Water Contamination Claims
MONTGOMERY, Ala. — In partially granting separate motions to dismiss filed by two chemical companies, an Alabama federal judge dismissed trespass and private nuisance claims brought by a municipal water utilities board that alleges that the companies contaminated its water source by placing dangerous chemicals into the stream of commerce.
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February 14, 2023
9th Circuit Affirms Apportionment Of CERCLA Liability For Smelting Site
SAN FRANCISCO — In affirming a trial court’s allocation of environmental liability between two subsequent owners and operators of a former aluminum smelting site, a Ninth Circuit U.S. Court of Appeals panel held that the trial court did not err in considering the intent of the parties as expressed in the terms of the acquisition agreement between them, as well as their contribution to the site’s contamination and economic benefit received from the site.
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February 14, 2023
Judge In Oil Spill Case: Port Operator Not A U.S. Agent; Coast Guard Not A Party
SANTA ANA, Calif. — A nonprofit that regulates shipping commerce in San Pedro Bay is not an agent of the United States, and the U.S. Coast Guard is not a necessary party to the action arising from an oil spill allegedly caused by two vessels that struck and damaged a pipeline, a California federal judge found in rejecting the nonprofit’s motions to dismiss a third-party complaint and an intervenor complaint for damages.
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February 13, 2023
Stanford Settles CERCLA Contribution Claims Against Agilent, HP
SAN FRANCISCO — A federal judge in California has dismissed without prejudice a case filed in 2018 by Stanford University against several technology companies accused of contaminating the soil with trichloroethylene (TCE) and polychlorinated biphenyls (PCBs).
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February 13, 2023
California Panel: Challenge To Cleanup Contracts Barred By Res Judicata
FRESNO, Calif. — A California federal judge’s determination that the city of Visalia, Calif., is responsible for 50% of the costs associated with perchloroethylene (PCE) cleanup at a former dry cleaning business precludes the city from pursuing a state court declaratory judgment of whether public bidding procedures under the California Public Contracts Code (PCC) apply to cleanup contracts entered into by the dry cleaner, a California appellate court ruled.
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February 13, 2023
Exception To Pollution Exclusion In Excess Policies Does Not Apply, Judge Says
JACKSON, Miss. — The sudden and accidental exception to pollution exclusions included in excess insurance policies does not provide coverage for underlying suits alleging that an insured’s facility contaminated neighboring properties because the pollution at issue was not sudden as required for the exception to apply, a Mississippi state judge said.
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February 13, 2023
California Federal Judge Certifies Plaintiff Class In Fuel Jettison Case
LOS ANGELES — Allegations of trespass leveled against Delta Airlines Inc. in connection with an engine malfunction in January 2020 that led a flight bound for Shanghai to jettison fuel over thousands of homes in Southern California present a common issue that predominates over individual ones, a federal judge in California has ruled, certifying a plaintiff class.
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February 10, 2023
Oil Companies Ask High Court To Decide Jurisdiction Issue Over WWII Gas Production
WASHINGTON, D.C. — A group of oil companies that operated in Louisiana during World War II have petitioned the U.S. Supreme Court to determine whether they were simply complying with federal regulations or were “acting under” federal officers to a degree that satisfies federal officer jurisdiction to remove state environmental law claims raised by several Louisiana parishes to federal court.
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February 10, 2023
Minn. Panel: Agency’s Adoption Of California Emission Standards Is Constitutional
ST. PAUL, Minn. — A Minnesota agency’s adoption of California standards for motor vehicles emissions is constitutional because the adoption did not violate the nondelegation doctrine of the Minnesota Constitution and would not automatically incorporate future major changes to the standards made by California, a Minnesota appellate panel found in considering an automobile dealers association’s challenge to the state’s new Clean Car Rule.
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February 08, 2023
Landfill Operator Prevails On CWA, CERCLA Cost Recovery Claims
COLUMBIA, Tenn. — A federal judge in Tennessee denied a defendant landfill owner summary judgment on state law claims of trespass and punitive damages in connection with the operation of the landfill and its acceptance of aluminum byproducts, but said the owner is entitled to prevail on allegations that it violated federal environmental law.
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February 08, 2023
Dispute Over Arizona ‘Sham’ E-Waste Recycler Yields New Settlement
PHOENIX — A federal judge in Arizona has granted final approval of another settlement agreement in a dispute over a purported recycling facility that stockpiled and ultimately abandoned 106 million pounds of e-waste.
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February 08, 2023
D.C. Circuit Panel Refuses To Stay Remand Of Climate Change Claims
WASHINGTON, D.C. — A District of Columbia Circuit U.S. Court of Appeals panel denied fossil fuel companies’ emergency motion for a stay pending the appeal of a U.S. District Court for the District of Columbia order remanding the District of Columbia’s climate change claims against the companies that were originally filed in the District of Columbia Superior Court.
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February 08, 2023
Idaho Federal Judge Delivers Split Ruling On Challenges To Proposed Phosphate Mine
POCATELLO, Idaho — A federal judge in Idaho partially granted and partially denied motions for summary judgment filed by the U.S. Bureau of Land Management (BLM), three environmental groups and a mining company over the environmental groups’ allegations that a proposed phosphate mine would violate Idaho state law, the Clean Water Act (CWA) and other federal laws.
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February 01, 2023
No Coverage Owed For Coronavirus Losses Under Pollution Liability Policy
ALEXANDRIA, Va. — The Fourth Circuit U.S. Court of Appeal on Jan. 31 affirmed a district court’s ruling that no coverage is owed to insureds for business interruption losses sustained as a result of the coronavirus pandemic, agreeing with the lower court’s determination that the virus does not qualify as a pollution condition under the premises pollution liability policy.
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January 30, 2023
8th Circuit Denies States’ Bid For Rehearing Of Standing Findings
ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on Jan. 27 stood by its October determination that 13 states lack standing to challenge President Joseph Biden’s reestablishment of the Interagency Working Group (IWG) on the Social Cost of Greenhouse Gases (SC-GHG).
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January 30, 2023
Paper Companies: CERCLA Statute Of Limitations Holding Not Cert-Worthy
WASHINGTON, D.C. — In Jan. 27 opposition briefs filed with the U.S. Supreme Court, two paper companies defend a determination by the Sixth Circuit U.S. Court of Appeals that a statute of limitations affirmative defense is available to them in a lawsuit over polychlorinated biphenyl (PCB) pollution at the Kalamazoo River Superfund site.
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January 30, 2023
Pollution Exclusion Is Ambiguous As To Whether Home Heating Oil Is A Pollutant
PROVIDENCE, R.I. — The Rhode Island Supreme Court on Jan. 27 vacated and remanded a trial court’s ruling entered in favor of an insurer in an insured’s suit seeking coverage for an underlying suit arising out of a home heating oil spill because the policy’s pollution exclusion is ambiguous as to whether home heating oil qualifies as a pollutant.
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January 30, 2023
Delaware High Court: Property Owners Forfeited Environmental Liability Challenge
WILMINGTON, Del. — The Delaware Supreme Court on Jan. 27 said a decision by property owners to withdraw their administrative appeal of a determination of environmental liability means that they “effectively forfeited the right to” later challenge that liability in connection with a $105,464.87 award in favor of the state.
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January 26, 2023
Fla. Federal Judge: Clean Water Permit Approval Was Not Arbitrary Or Capricious
TAMPA, Fla. — An environmental group failed to show that the Army Corps of Engineers acted arbitrarily or capriciously when it approved a Clean Water Act (CWA) permit for a road project that would run through a wilderness preserve in Pasco County, a Florida federal judge held in overruling the group’s objections to a federal magistrate judge’s recommendation that the Corps’ and Pasco County’s cross-motions for summary judgment be granted.