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

Mealey's Pollution Liability

June 29, 2023
FTCA Exception Protects EPA From Alleged Damages During Environmental Cleanup

HARRISONBURG, Va. — A company’s claim that the U.S. Environmental Protection Agency damaged its property during a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) removal action is barred under the Federal Tort Claims Act (FTCA) because the agency used its discretion when deciding to clean the property where allegedly hazardous substances were present, a Virginia federal judge found in granting the EPA’s motion to dismiss the action.
June 29, 2023
New Jersey, Company Reach PFAS Settlement Worth Nearly $393 Million

TRENTON, N.J. — The New Jersey attorney general announced June 28 that it has reached a proposed settlement with Solvay Specialty Polymers USA LLC worth $392,781,963.69 to resolve the state’s litigation for cleanup and removal costs from contamination from per- and polyfluoroalkyl substances (PFAS).
June 28, 2023
Illinois Agencies Compelled To Produce Documents In PCB Case Against Monsanto

CHICAGO — Illinois state agencies that were explicitly referenced in Illinois’ complaint against Monsanto Co. for the alleged statewide contamination of waterways by polychlorinated biphenyls (PCBs) can be compelled to produce documents because the attorney general effectively controls the documents, an Illinois federal magistrate judge found in granting Monsanto’s motion to compel discovery.
June 28, 2023
6th Circuit: Government Did Not ‘Operate’ Oil Refineries During WWII

CINCINNATI — Regulations of the oil and gas industry during World War II did not render the United States an “operator” of 12 oil refineries under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because the government did not make any decisions regarding the toxic waste produced at the refineries, a Sixth Circuit U.S. Court of Appeals panel found in reversing a trial court’s grant of summary judgment in favor of the operator of the refineries who is seeking contribution costs from the government.
June 27, 2023
Delaware High Court: Monsanto Contributed To Public Nuisance By Producing PCBs

WILMINGTON, Del. — Delaware successfully stated a claim for public nuisance against Monsanto by alleging that the company sold toxic polychlorinated biphenyls (PCBs) to the public while knowing that the products were dangerous to health and the environment, the Delaware Supreme Court held in partly reversing a trial court’s judgment dismissing the state’s complaint against Monsanto.
June 27, 2023
In Gas Station Pollution Case, Claims Released In Exchange For Remediation

NEW YORK — A New York federal judge endorsed a stipulation of settlement and order in which a company that purchased a gas station site agreed to remediate contamination of soil and groundwater near the station in exchange for the release of remaining claims brought by the owner of a nearby housing complex that alleges that a toxic plume of contaminants from the station is approaching the complex and threatening tenants.
June 23, 2023
N.J. Federal Judge: Consent Order Over Polluted Property Was Not Based On Mistake

CAMDEN, N.J. — A consent order entered into between two property owners and the New Jersey Department of Environmental Protection (NJDEP) over the remediation of filled wetlands was not based upon a mutual mistake because a disagreement about the classification of the wetlands is not a mistake of fact, a New Jersey federal judge held in granting the NJDEP’s motion to dismiss.
June 21, 2023
Judge Nixes Deepwater Horizon Case, Says Causation Expert Fails Daubert Standard

NEW ORLEANS — A federal judge in Louisiana has dismissed with prejudice a case brought by a man who contended that he was injured during cleanup operations following the Deepwater Horizon oil spill, ruling that his causation expert failed to meet the standard for admissibility under Daubert v. Merrell Dow Pharmaceuticals, Inc. and, therefore, the case lacked expert medical causation evidence.
June 20, 2023
Calif. Federal Judge Approves Preliminary Settlement In Off-Shore Oil Spill Case

SANTA ANA, Calif. — A California federal judge preliminarily approved a settlement of claims between a putative class of people affected by an oil spill that occurred off the coast of Orange County, Calif., and the individuals and companies that operate the two shipping vessels that allegedly caused the spill by striking and damaging an off-shore oil pipeline.
June 20, 2023
In Groundwater Contamination Dispute, Federal Judge Says Expert Rebuttal Is Proper

SAN DIEGO — A rebuttal to an expert opinion regarding the contamination of groundwater near a new property development is proper because the rebuttal addressed the same issues raised in the expert opinion filed by a recycling company that is accused of contributing to the contamination and is seeking indemnification from a nearby landfill operator, a California federal judge found in denying the recycling company’s motion to strike the rebuttal.
June 19, 2023
Md. Federal Judge Won’t Dismiss Tort Claims Arising From Coal Facility Explosion

BATLIMORE — A Maryland federal judge concluded that local residents who allege that their homes and personal health were damaged by an explosion at a nearby coal transfer facility pleaded their tort claims with enough specificity to defeat a motion to dismiss filed by the facility’s owner.
June 16, 2023
Hawaii Federal Judge: Drain Leading To Pacific Ocean Is Point Source Under CWA

HONOLULU — Two environmental groups are entitled to summary judgment on their claim of a Clean Water Act (CWA) violation against a state and a local agency because the agencies failed to show that a drain where the alleged pollution entered the Pacific Ocean was not a “point source” under the law, a Hawaii federal judge held in granting the groups’ motion for summary judgment.
June 14, 2023
Issues Of Fact Exist About Whether Abandoned Gas Well Caused Environmental Damages

MONROE, La. — Genuine issues of fact exist as to whether an abandoned gas well caused environmental damage to property because two expert reports showed that the concentrations of hazardous substances around the well were not high enough to qualify as contamination, a Louisiana federal judge found in denying a motion for summary judgment filed by a company that owns the allegedly affected property.
June 13, 2023
Company, Plaintiff Seek Approval Of Deal To Stop PFAS Discharges

ROME, Ga. — A chemical company and a plaintiff who brought a drinking water contamination lawsuit against it for discharging per- and polyfluoroalkyl substances (PFAS) in its wastewater have filed a joint motion in Georgia federal court seeking approval of a consent order under which the company would agree to stop discharging PFAS into a municipality’s wastewater collection and treatment facilities.
June 13, 2023
6th Circuit: Ordering Removal Of Contaminated Soil Was Proper Remedy

CINCINNATI — A Sixth Circuit U.S. Court of Appeals panel found that a district court judgment ordering the officer of a former extermination service to remove and dispose of pesticide-contaminated soil was appropriate because the law of the case and judicial estoppel doctrines did not apply.
June 12, 2023
Kentucky Federal Judge Denies Motion For New Trial In Lead Contamination Case

LEXINGTON, Ky. — In denying a motion for a new trial filed by property owners who claimed that their property was damaged by pollution from a nearby glass manufacturing plant, a Kentucky federal judge found that the jury’s verdict was not erroneous and that the trial was fair.
June 12, 2023
Pollution Liability Insurer Cannot Withhold Documents Prepared In Insured’s Defense

NEWARK, N.J. — A pollution liability insurer cannot assert attorney-client privilege or work product doctrine as a basis to withhold documents prepared while still involved in the defense of an underlying suit filed against its insured, a New Jersey federal magistrate judge said in partially granting the insured’s motion to compel.
June 12, 2023
Pollution Exclusion Does Not Bar Coverage For Underlying Water Contamination Suit

ELGIN, Ill. — The Second District Illinois Appellate Court reversed and remanded a trial court’s ruling that an insurer has no duty to defend its insured city in an underlying suit alleging that the city provided unsafe drinking water to its residents because the policies’ pollution exclusion applies only to traditional environmental contamination claims and the underlying suit against the insured does not allege a claim involving traditional environmental contamination.
June 08, 2023
Panel Denies English Reinsurer’s Rehearing Bid In All-Sums Allocation Case

NEW YORK — A Second Circuit U.S. Court of Appeals panel denied a petition for panel rehearing in which an English facultative reinsurer argued that the opinion “misreads the context” of one English case and “overlooked an English appellate decision reaching exactly the opposite conclusion” in a case concerning all-sums allocation of an environmental claims settlement.
June 07, 2023
Pollution Remediation Is Not An Ultrahazardous Activity, Mo. Federal Judge Finds

CAPE GIRARDEAU, Mo. — In dismissing a claim for strict liability for an ultrahazardous activity brought by a property owner against a manufacturer of automotive parts, a Missouri federal judge on June 6 found that the manufacturer’s remediation of pollution allegedly caused by its factory is not an ultrahazardous activity under Missouri law.
June 07, 2023
In Liquid Mercury Spill Dispute, Pa. Federal Judge Excludes Undisclosed Damages

PITTSBURGH — A transportation company cannot bring damages regarding its costs of repaving areas that were damaged by spilled liquid mercury because the company did not raise the damages in its initial disclosures and never supplemented its disclosures, a Pennsylvania federal judge held in granting a recycling company’s motion to preclude the damages raised in an expert report filed by the transportation company that moved the mercury that later spilled at a storage terminal.
June 06, 2023
Company That Purchased Calculator Manufacturer May Be Liable For CERCLA Costs

SAN FRANCISCO — Under theories of successor and alter ego liability, a holding company that purchased a calculator manufacturer that polluted a property with hazardous chemicals may be liable for response costs because there are genuine issues of fact as to whether the theories apply, a California federal judge held in partly denying the holding company’s motion for summary judgment.
June 05, 2023
Clean Water Act Suit Barred By Prosecution Of Consent Decree, 11th Circuit Finds

ATLANTA — The U.S. Environmental Protection Agency and Georgia Department of Resources (GDNR) have diligently prosecuted a prior consent decree resolving Clean Water Act (CWA) violations by DeKalb County to such a degree that a citizen suit alleging similar violations for the discharge of untreated sewage is barred, an 11th Circuit U.S. Court of Appeals panel found in affirming a trial court’s judgment dismissing the claims.
June 02, 2023
In Refinery Pollution Case, Alaska High Court Affirms Most Of Trial Court Judgment

ANCHORAGE, Alaska — In affirming all but a trial court’s grant of injunctive relief in an appeal brought by an oil company that was sued by Alaska and the purchaser of its oil refinery, a unanimous Alaska Supreme Court held that the trial court did not err in concluding that sulfolane is a hazardous substance or in allocating contribution for environmental damages from the oil company that polluted nearby groundwater with sulfolane, per- and polyfluoroalkyl substances (PFAS) and oil.
June 02, 2023
Federal Circuit: Army Corps Of Engineers Has Immunity From Stormwater Fees

WASHINGTON, D.C. — The U.S. Army Corps of Engineers is not required to pay stormwater management program fees sought by the city of Wilmington, Del., because it did not waive its sovereign immunity to such fees under the Clean Water Act (CWA), the Federal Circuit U.S. Court of Appeals held in affirming a Federal Claims Court judgment.