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

Mealey's Pollution Liability

December 21, 2023
D.C. Circuit Follows Other Circuit Courts, Remands Climate Change Claims

WASHINGTON, D.C. — Climate change claims brought by the District of Columbia against several of the world’s largest oil companies belong in state court because the claims themselves arise under state law and the companies failed to show any grounds that justified removal, a District of Columbia Circuit U.S. Court of Appeals panel found in affirming an order remanding the claims.
December 20, 2023
In Light Of Sackett, 5th Circuit Says Timber Plantation Is Not Subject To CWA

NEW ORLEANS — Land used for pine timber plantation is not subject to the Clean Water Act (CWA) because it does not contain wetlands that connect to navigable waters of the United States, the majority of a Fifth Circuit U.S. Court of Appeals panel found in vacating a trial court’s judgment.
December 20, 2023
Missouri Federal Magistrate Judge: Environmental Harm At Issue Is Not Divisible

JOPLIN, Mo. — The former operator of a fertilizer plant is joint and severally liable under the Comprehensive Environmental, Response, Compensation, and Liability Act for environmental harm caused by a stack of hazardous byproduct stored near the plant because the operator failed to show that the harm was volumetrically divisible, a Missouri federal magistrate judge announced in setting forth findings of fact and conclusions of law.
December 18, 2023
Pollution Liability Insurer Says Environmental Damage Claim Is Barred From Coverage

TRENTON, N.J. — A premises pollution liability insurer says in a motion to dismiss filed in New Jersey federal court that its insured’s breach its contract and bad faith suit must be dismissed because the policy at issue clearly excludes coverage for the environmental contamination remediation costs incurred by the insured municipality.
December 18, 2023
Liquidation Order Prompts Letters, Order In Environmental Claims Row

NEWARK, N.J. — After all parties in a suit over environmental investigation and remediation briefly weighed in on the implications of a different court’s liquidation order pertaining to one defendant, a New Jersey federal magistrate judge delayed a status conference and granted that defendant “leave to file a motion for relief relating to the Liquidation Order.”
December 12, 2023
Washington Federal Judge: Sackett Decision Didn’t Affect CWA Consent Decree

SEATTLE — The U.S. Supreme Court’s adoption of a definition of wetlands for the purposes of the Clean Water Act (CWA) did not constitute a significant change in circumstances that warranted revision of a consent decree entered between the United States, an Indian tribe and two companies over the companies’ alleged illegal discharges of dredged and fill material into protected waters because the definition was previously unchallenged in the case, a Washington federal judge found in denying the companies’ motion to vacate or modify the consent decree.
December 12, 2023
Insurer Was Not Prejudiced By Insured’s Notice In Pollution Suit, Insured Says

ATLANTA — A district court’s ruling that no coverage is owed to an insured for contamination cleanup costs caused by the release of petroleum and other contaminants from an underground storage tank at a gas station should be reversed because the insurer failed to show that the insured’s untimely notice was prejudicial to the insurer, the insured says in its appellant brief filed in the 11th Circuit Court of Appeal.
December 11, 2023
Chicago Dismisses Lake Michigan Spill Claims Against Steel Manufacturer

HAMMOND, Ind. — In Indiana federal court, the city of Chicago filed a stipulation of dismissal of its claims brought against United States Steel Corp. (U.S. Steel) for the company’s alleged release of hazardous chemicals into Lake Michigan.
December 06, 2023
Montana High Court: Board Erred In Approving Permit To Expand Coal Mine

HELENA, Mont. — The Montana Department of Environmental Quality (DEQ) Board of Environmental Review erred in upholding the approval of a permit to expand operations at a coal mine by declining to address certain arguments made by conservation groups and in making certain rulings regarding water quality violations and the cumulative impacts that would affect a creek near the mine the conservation groups say will be harmed by the expansion, the Montana Supreme Court found in remanding a trial court’s order.
December 06, 2023
9th Circuit: Suction Dredge Mining In Idaho River Required NPDES Permit

SAN FRANCISCO — Suction dredge mining operations require a National Pollutant Discharge Elimination System (NPDES) permit because the activity causes pollutants in the form of suspended bedrock and other materials to be discharged, a Ninth Circuit U.S. Court of Appeals panel found in affirming a trial court’s decision to grant summary judgment in favor of an environmental group that sued a man for performing the mining in an Idaho river without a permit.
December 06, 2023
9th Circuit: Pipe Not Connected To Storage Pond Cannot Be CWA Point Source

SEATTLE — A trial court did not err in finding that an underground drainage pipe that allegedly carries polluted water from three storage ponds at a mountain resort to the Gallatin River was not a point source for pollution under the Clean Water Act (CWA) because the pipe does not connect two distinct bodies of water, a Ninth Circuit U.S. Court of Appeals panel found in affirming the trial court’s decision to deny an environmental group’s motion for summary judgment.
December 06, 2023
5th Circuit: EPA’s Denial Of CAA Program Exemptions Was Impermissibly Retroactive

NEW ORLEANS — In denying several petitions for exemptions to a Clean Air Act (CAA) program filed by small refineries, the U.S. Environmental Protection Agency used a new approach that was impermissibly retroactive to the petitions that were filed years ago because the refineries justifiably relied upon the agency’s previous approach and there were no benefits to retroactively applying the new approach, the majority of a Fifth Circuit U.S. Court of Appeals panel found in granting a group of refineries’ petitions for review.
December 06, 2023
In Issuing Farm Permits, N.C. Agency Was Not Required To Perform Certain Duties

RALEIGH, N.C. — A trial court did not err in finding that the North Carolina Department of Environmental Quality (DEQ) was not required to perform certain duties in approving animal waste management system permits to four industrial hog farms because the duties, identified by two environmental groups, are not mandatory under the statutes governing the permitting process at issue, a North Carolina appellate court panel found Dec. 5 in affirming the trial court’s judgment.
December 04, 2023
Auto Policy’s Pollution Exclusion Bars Coverage For Contaminated Wheat Delivery

PIERRE, S.D. — No coverage is owed to insureds under an auto policy for an underlying suit arising out of the delivery of contaminated wheat because the auto policy’s pollution exclusion bars coverage for contaminants, the South Dakota Supreme Court said in affirming a trial court’s ruling in favor of the auto insurer.
December 01, 2023
3rd Circuit: EPA Erred In Requiring Virgin Islands Refinery To Obtain Permit

PHILADELPHIA — The U.S. Environmental Protection Agency exceeded the limits of the Clean Air Act (CAA) by requiring the new owner of an existing petroleum refinery in the Virgin Islands to obtain a permit under the CAA’s new source review (NSR) program because the refinery was neither constructed nor modified after 1977 and is therefore not subject to the program, a Third Circuit U.S. Court of Appeals panel found in granting the owner’s petition for review.
December 01, 2023
Louisiana Panel: Property Owner Was Assigned Rights To Sue For Environmental Damage

LAKES CHARLES, La. — A property owner that purchased land that was contaminated before the sale is not barred by the subsequent purchaser doctrine from seeking damages for alleged environmental contamination caused by historical gas and oil exploration activities because the owner was assigned the right to sue by the previous owners of the property, a Louisiana appellate panel found in denying two supervisory writs filed by successors to the oil and gas companies that purportedly damaged the property.
December 01, 2023
California Federal Judge Dismisses RCRA And CWA Claims With Leave To Amend

LOS ANGELES — In partly granting two motions to dismiss, a California federal judge found that an environmental group failed to adequately state some of its Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) claims arising from alleged discharges of polluted stormwater at the Port of Long Beach but granted the group leave to amend its claims because amendment would not be futile in this instance.
November 30, 2023
Ohio, DuPont Reach $110M Deal To Resolve C8 Pollution From Washington Works Plant

COLUMBUS, Ohio — Ohio Gov. Mike DeWine and E.I. du Pont de Nemours & Co. on Nov. 29 separately announced that they reached a $110 million settlement of a perfluorooctanoic acid (PFOA), also called C8, groundwater contamination case brought by the state related to pollution from DuPont’s Washington Works Plant. The settlement establishes an environmental restoration fund that will address the pollution from the plant, as well as damages caused by firefighting foam that contains PFOA.
November 29, 2023
9th Circuit Affirms Remand Of Climate Change Claims Against Oil Companies

SAN FRANCISCO — State law public nuisance claims brought by two California municipalities that allege that five oil companies accelerated the effects of climate change by producing and promoting fossil fuel products should be remanded because removal jurisdiction is not supported by federal officer removal jurisdiction or an exception to the well-pleaded complaint rule, a Ninth Circuit U.S. Court of Appeals panel found in affirming a trial court’s decision.
November 28, 2023
No Coverage Owed For COVID-19 Losses Under Pollution Policy, Court Says

NEW YORK — No coverage is owed for business interruption losses caused by the coronavirus because the virus is not a pollution condition and does not constitute an indoor environmental condition as defined in the pollution and remediation policy, a New York appellate panel said in affirming a trial court’s ruling.
November 27, 2023
Louisiana Federal Judge Dismisses Oil Company From Abandoned Gas Well Dispute

MONROE, La. — After approving a settlement agreement between an oil company and a property owner that resolved allegations that the oil company contributed to environmental damage on the property by abandoning oil wells, a Louisiana federal judge dismissed the claims against the company with prejudice.
November 22, 2023
Norfolk Southern: Rail Car Owners Liable For Chemical Spill From Train Derailment

YOUNGSTOWN, Ohio — Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) filed a brief in Ohio federal court arguing that it should deny a motion to dismiss the third-party complaint Norfolk Southern has filed against rail car owners in relation to the train derailment in East Palestine, Ohio. Norfolk Southern contends that it is a common carrier and is entitled to seek cost recovery from rail car owners under federal law that imposes liability on rail car owners when their rail cars dispose hazardous substances into the environment.
November 20, 2023
Insurer’s Environmental Coverage Suit Stayed Until Underlying Suit Is Resolved

SANTA ANA, Calif. — A California state judge denied a demurrer to an insurer’s complaint but granted a motion to stay the insurer’s declaratory judgment suit until after an underlying environmental contamination suit against the successor company to an insured is resolved because resolution of the underlying suit will aid the court in determining whether the insurer’s pollution exclusion applies as a bar to coverage for the underlying suit.
November 17, 2023
In Clash Over Alaska City’s Air Quality, Federal Judge Approves Consent Decree

SEATTLE — A Washington federal judge on Nov. 17 entered a consent decree proposed by three citizen groups and the U.S. Environmental Protection Agency to resolve a dispute over whether the agency violated the Clean Air Act (CAA) by failing to approve or disapprove a state implementation plan (SIP) to remediate air pollution in the Alaska borough of Fairbanks North Star.
November 16, 2023
6th Circuit: Challenges To Clean Air Act Plan Belong In D.C. Circuit

CINCINNATI — Four petitions for judicial review of a Clean Air Act (CAA) plan governing ambient air quality for 23 states must be heard in the District of Columbia Circuit U.S. Court of Appeals because the plan is nationally applicable and is based on a U.S. Environmental Protection Agency determination of nationwide scope, a Sixth Circuit U.S. Court of Appeals panel found in granting the EPA’s motions to transfer the petitions.