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

Mealey's Pollution Liability

July 31, 2023
1st Circuit Approves EPA’s Permit For Cleanup Of PCBs In Housatonic River

BOSTON — The U.S. Environmental Protection Agency did not act arbitrarily or capriciously in issuing a permit for the cleanup of New England’s Housatonic River because the agency adequately considered alternative remediation methods and public comments, a First Circuit U.S. Court of Appeals panel held in denying two environmental groups’ petition for review of the permit.
July 28, 2023
6th Circuit Refuses To Transfer Kentucky’s Challenge To EPA Air Quality Decision

CINCINNATI — The District of Columbia Circuit U.S. Court of Appeals does not have exclusive jurisdiction over Kentucky’s and a state agency’s petitions for judicial review of a U.S. Environmental Protection Agency decision to partly disapprove Kentucky’s state implementation plan (SIP) under the Clean Air Act (CAA) because the decision is only locally or regionally applicable, a majority of a Sixth Circuit U.S. Court of Appeals panel held in denying the EPA’s motions to transfer in both cases.
July 27, 2023
D.C. Circuit Denies Petition To Review Definition Of ‘Corrosive’ Within RCRA

WASHINGTON, D.C. — The U.S. Environmental Protection Agency’s decision not to amend its definition of “corrosive” for the purposes of the Resource Conservation and Recovery Act (RCRA) was not arbitrary and capricious, a District of Columbia Circuit U.S. Court of Appeals panel held in denying a petition filed by an environmental group challenging the definition because the group’s arguments were either untimely or not compelling enough to overcome the panel’s deference to the EPA.
July 25, 2023
N.C. Federal Judge Denies Summary Judgment Motion In Wastewater Contamination Row

STATESVILLE, N.C. — An adhesive manufacturer’s Comprehensive Environmental Response, Compensation, and Liability Act claims survive a motion for summary judgment filed by a company accused of transporting wastewater totes that later leaked because the manufacturer provided evidence that directly contradicted the company’s motion, a North Carolina federal judge found in denying the motion.
July 21, 2023
Calif. Federal Judge Dismisses Third-Party Claims In Airport Pollution Dispute

LOS ANGELES — A California federal judge dismissed without prejudice third-party claims brought by a company accused of violating the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by contaminating an airport with hazardous substances because the chain of corporate history alleged by the company was not accurate.
July 20, 2023
Question Of Fact Exists Over Claims That Tennessee City Polluted Nearby Creek

COLUMBIA, Tenn. — A “true question of fact” exists about whether a Tennessee city and its utilities board violated the Clean Water Act (CWA) by discharging pollutants from its sewer management system into the nearby Shoal Creek, a Tennessee federal judge held in denying a plaintiff-environmental groups’ motion for summary judgment.
July 18, 2023
2nd Circuit Affirms, Finds Removal Of Love Canal Claims Was Untimely

NEW YORK — A group of state entities and companies that were involved in the cleanup of a former waste disposal site near an unused canal under the Comprehensive Environmental Response, Compensation, and Liability Act failed to timely remove 19 cases brought by individuals who live near the site and allegedly suffer health problems as a result of the contamination at the site, a majority of a Second Circuit U.S. Court of Appeals panel found in affirming the remand of the cases to state court.
July 17, 2023
Following 6th Circuit’s Lead, Federal Judge Dismisses 2 Car Emissions Disputes

BAY CITY, Mich. — In light of a recent Sixth Circuit U.S. Court of Appeals opinion, a Michigan federal judge dismissed with prejudice two similar cases, finding that the Clean Air Act (CAA) preempted claims filed by two classes of automobile owners who alleged that defeat devices in their vehicles allowed the manufacturers to deceive the U.S. Environmental Protection Agency and violate vehicle-emissions standards.
July 17, 2023
2nd Circuit: Property Owners Sufficiently Pleaded Most Of Their RCRA Claims

NEW YORK — A Second Circuit U.S. Court of Appeals panel vacated most of a trial court’s decision to dismiss Resource Conservation and Recovery Act (RCRA) claims brought against companies that are alleged to have disposed of radioactive waste onto nearby properties because the plaintiff-property owners sufficiently pleaded their claims.
July 17, 2023
Panel Reverses, Says Insurers Have Duty To Defend Seller Of Contaminated Land

LOS ANGELES — A California appellate panel ruled that a trial court erred by granting summary adjudication in favor of two insurers on the duty to defend a lawsuit against an insured for violation of California’s unfair competition law (UCL) and other laws due to ongoing groundwater contamination at an industrial property it sold in 1995.
July 14, 2023
Federal Judge: Contamination Claims Are Supported By Proper Expert Testimony

SAN DIEGO — Genuine issues of material fact exist about public nuisance and Resource Conservation and Recovery Act (RCRA) claims brought by a property developer against a recycling company for the company’s alleged contamination of groundwater near a new development because the claims are supported by admissible expert testimony, a California federal judge found in denying the recycling company’s motion for summary judgment.
July 12, 2023
Minnesota Panel: Court Erred In Finding Amish Community Discharged Polluted Water

SAINT PAUL, Minn. — A trial court erred in finding that a county ordinance requiring members of the local Amish community to maintain septic tanks for the purposes of disposing of household water was the least restrictive means of maintaining a compelling state interest of protecting local water from contamination because the evidence relied upon by the court was speculative on several issues, including whether the water was polluted, a Minnesota Court of Appeals panel held in reversing and remanding the trial court’s judgment.
July 12, 2023
EPA Says Norfolk Southern’s Affirmative Defenses Fail In Train Derailment Case

YOUNGSTOWN, Ohio — The U.S. Environmental Protection Agency has filed a brief in Ohio federal court supporting a motion to strike certain affirmative defenses raised by Norfolk Southern Corp. in the consolidated lawsuits brought by the state of Ohio and the U.S. government related to injuries from the train derailment in East Palestine, Ohio, arguing that Norfolk Southern is not entitled to relief under a “failure to mitigate” defense because the U.S. government has no duty to mitigate Norfolk Southern’s damages under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
July 12, 2023
Clean Water Act Claims Dismissed As Shotgun Pleadings By Washington Federal Judge

TACOMA, Wash. — A Washington federal judge dismissed Clean Water Act (CWA) claims brought by an environmental group against a company for alleged environmental permit violations at a storage facility as shotgun pleadings because the group’s complaint was not detailed enough to allow the judge to determine whether the company was liable for the allegations.
July 12, 2023
Landowner Violated Clean Water Act By Filling Wetlands, Conn. Federal Judge Finds

NEW HAVEN, Conn. — A landowner violated the Clean Water Act (CWA) by filling in protected wetlands on his property without a permit and after having received several warnings and notices from various federal agencies, a Connecticut federal judge found in granting the United States’ motion for summary judgment on its CWA claims against the landowner.
July 12, 2023
Georgia Federal Judge Allows Landowners To Amend Clean Water Act Claims

ATHENS, Ga. — In granting a motion to amend a Clean Water Act (CWA) claim brought by two landowners who allege that several parties involved in the transportation and dumping of red clay caused polluted stormwater to enter a stream and ponds, a Georgia federal judge opined that the landowners’ motion was not filed with undue delay.
July 10, 2023
No Coverage Owed For Contamination Caused By Release Of Petroleum

JACKSONVILLE, Fla. — 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 because the insured failed to notify its insurer within seven days of learning of the presence of the contaminants in the groundwater as required by the policy, a Florida federal judge said in granting the insurer’s motion for summary judgment.
July 07, 2023
N.J. High Court Refuses To Review Ruling In Environmental Contamination Suit

TRENTON, N.J. — The New Jersey Supreme Court denied an insured’s petition for certification, refusing to review the New Jersey Superior Court Appellate Division’s ruling that a prior or pending litigation exclusion bars coverage for an environmental contamination lawsuit filed against the insured by the New Jersey Department of Environmental Protection (NJDEP).
July 06, 2023
D.C. Circuit: EPA’s Rule On Aircraft Emissions Was Not Arbitrary And Capricious

WASHINGTON, D.C. — The U.S. Environmental Protection Agency’s decision to align aircraft emission standards with the standards of the International Civil Aviation Organization (ICAO) did not violate the Clean Air Act (CAA) and was not arbitrary and capricious because the agency has “substantial discretion” to regulate aircraft emissions, a District of Columbia Circuit U.S. Court of Appeals panel found in denying two petitions for review filed by a groups of states and the District of Columbia as well as three environmental organizations.
July 06, 2023
Question Of Fact Exists Over Basement Oil Spill, New York Panel Concludes

BROOKLYN, N.Y. — A homeowner is not entitled to summary judgment on his claims for strict liability against an oil company whose employee allegedly caused an oil spill in the basement of the plaintiff’s home because there is a triable issue of fact as to whether the homeowner contributed to the spill by failing to turn off his heating system after discovering the spill, a New York appellate panel found on July 5 in affirming denial of the homeowner’s summary judgment motion.
July 05, 2023
Washington Federal Magistrate Limits Expert’s Testimony In PCB Case

SEATTLE — A Washington federal magistrate judge partially granted a motion to exclude filed by Seattle in its suit to hold companies liable over polychlorinated biphenyl (PCB) contamination in the city’s waterways and stormwater and drainage systems, finding an expert’s opinion on historical waste disposal in landfills irrelevant but allowing his other conclusions.
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.