Mealey's Pollution Liability
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March 31, 2023
United States Files CERCLA And Clean Water Act Claims Over Ohio Train Derailment
CLEVELAND — The United States sued Norfolk Southern Corp. on March 31 for civil penalties and response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, alleging that the company violated the Clean Water Act (CWA) by discharging oil and hazardous substances into waters of the United States when its train derailed near East Palestine, Ohio.
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March 31, 2023
Panel: Gas Station Owners Not Jointly, Severally Liable For Water Contamination
DENVER — A Colorado appellate panel on March 30 affirmed a lower court’s ruling on liability for one defendant in a groundwater contamination case, but the panel reversed the lower court’s decision, which had held that the current owner and a previous owner of the property were jointly and severally liable for damages caused by toxic substances that leaked from underground storage tanks onto a nearby property.
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March 29, 2023
Some Defenses Raised By Monsanto Tossed, Others Survive In PCB Case
SEATTLE — A federal judge in Washington ruled that the primary jurisdiction doctrine does not bar a lawsuit by Seattle over polychlorinated biphenyl (PCB) contamination of the Lower Duwamish River.
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March 29, 2023
No Coverage Owed For Fuel Oil Spill At Insureds’ Home, N.Y. Justice Says
PORT EDWARD, N.Y. — Insureds’ claims for breach of contract and bad faith alleged against their property insurer cannot proceed because the policy’s pollution exclusion bars coverage for the damages and remediation costs incurred following an oil spill at the insureds’ home, a New York Supreme Court justice determined.
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March 27, 2023
Panel: Energy Companies Must Defend Climate Change Claims In State Court
ST. LOUIS — Citing a growing consensus among its sister circuits, the Eighth U.S. Circuit Court of Appeals has affirmed a Minnesota federal judge’s remand of allegations that the energy industry misled consumers about the association fossil fuels and climate change.
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March 20, 2023
Texas Challenge To EPA Final Rule Belongs In D.C. Circuit, U.S. Says
NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals is the wrong venue to decide whether Texas and 20 other states have an adequate plan to comply with the 2015 8-hour National Ambient Air Quality Standards (NAAQS), the federal government asserts.
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March 20, 2023
Sole Remaining CWA Claim By Former Ferry Fuelers Dismissed In New Jersey
TRENTON, N.J. — An allegation that ferries dumped raw sewage, boat fuel, oil and other materials into the Hudson River in violation of federal environmental law have been dismissed by a federal judge in New Jersey on procedural grounds.
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March 20, 2023
U.S. Must Face Claims Over Delayed Remediation Of PCBs At Surveillance Site
ANCHORAGE, Alaska — On remand from the Ninth Circuit U.S. Court of Appeals, a federal judge in Alaska denied the United States’ motion to dismiss allegations that it is liable for the delayed cleanup of polychlorinated biphenyls (PCBs) at one of the White Alice Communication System sites used to surveil the Soviet Union during the Cold War.
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March 16, 2023
Texas Supreme Court Reinstates Judgment In Favor Of Chemical Company
AUSTIN, Texas — Allegations by a group of farmers that their cotton crops were damaged by the herbicide Sendero were rejected by the Texas Supreme Court, which reversed a Texas appellate court and reinstated a trial court’s judgment in favor of a chemical company.
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March 15, 2023
Ohio Sues Norfolk Southern For Negligence, Says It Failed To Respond Adequately
YOUNGSTOWN, Ohio — The state of Ohio sued Norfolk Southern Corp. on March 14, asserting that the derailment of its train in East Palestine that spilled vinyl chloride and other toxins was the result of negligence because the railroad owed a duty to the state to take precautions to prevent the contamination of natural resources by hazardous materials. The state also says Norfolk Southern failed to respond properly to the incident because it did not have a contingency plan.
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March 13, 2023
Insurer Says Pollution Exclusion Bars Underlying Suit Arising Out Of Noxious Odors
ROME, Ga. — No coverage is owed for an underlying suit seeking damages as a result of noxious odors stemming from a poultry farm because the underlying suit does not allege an occurrence as required by the policy and because the policy’s pollution exclusion applies as a bar to coverage, an insurer maintains in a complaint filed in Georgia federal court.
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March 13, 2023
No Coverage Owed For Underlying Environmental Contamination Suit, Panel Says
TRENTON, N.J. — A panel of the New Jersey Superior Court Appellate Division affirmed a trial court’s ruling that a prior or pending litigation exclusion bars coverage for an environmental contamination lawsuit filed against an insured by the New Jersey Department of Environmental Protection (NJDEP), agreeing with the court’s finding that an administrative consent order issued by the NJDEP more than 30 years ago constitutes a prior claim under the policy at issue.
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March 13, 2023
In Expedited Appeal Of Climate Change Ruling, States, Chamber Weigh In
WASHINGTON, D.C. — A dispute over whether climate change claims against the fossil fuel industry belong in the District of Columbia Superior Court or the U.S. District Court for the District of Columbia prompted 14 states and the Chamber of Commerce of the United States to file amicus briefs urging a federal venue.
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March 13, 2023
Bifurcating Bad Faith Claims In Coverage Row Disputed In Kentucky Federal Court
PADUCAH, Ky. — Opposing a bid to bifurcate and stay bad faith claims in a coverage dispute involving a reinsurer, the plaintiff argues in a March 10 filing that those claims are “inextricably intertwined” with breach of contract claims and that the Kentucky federal court denied similar motions in three cases.
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March 06, 2023
D.C. Circuit Denies Petition, Says Revised Ozone Rule Not Arbitrary
WASHINGTON, D.C. — A petitioner seeking judicial review of a revised final rule adopted by the U.S. Environmental Protection Agency intended to address the 2008 Ozone National Ambient Air Quality Standards (NAAQS) was turned away March 3 by the District of Columbia Circuit U.S. Court of Appeals, which said the agency’s action was not arbitrary or capricious.
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March 06, 2023
Supreme Court Seeks U.S. Views In CERCLA Statute Of Limitations Case
WASHINGTON, D.C. — The U.S. Supreme Court in its March 6 order list called for the views of the U.S. solicitor general in a case that poses the question of whether a judgment of liability without a corresponding imposition of costs or award of damages nonetheless triggers the three-year statute of limitations under the Comprehensive Environmental Response, Compensation, and Liability Act.
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March 06, 2023
Deeming Punitive Award Excessive, California Judge Offers Modesto A Choice
SAN FRANCISCO — A California state court judge has directed the city of Modesto to accept a $40.3 million reduction in punitive damages or face a new punitive damages trial in longstanding litigation with Dow Chemical Co. over perchloroethylene (PCE) contamination at a former dry-cleaning site.
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March 06, 2023
Judge Denies DuPont’s Attempt To Dismiss North Carolina’s PFAS Contamination Case
FAYETTEVILLE, N.C. — A North Carolina state court judge has denied a motion to dismiss a per- and polyfluoroalkyl substances (PFAS) contamination case brought by the state attorney general against E.I. du Pont de Nemours & Co. and its affiliates, ruling that the statute of limitations was tolled and concluding that the complaint adequately alleges that the defendants did not exercise ordinary care in manufacturing and discharging PFAS.
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March 03, 2023
Supreme Court Extends Time To Address Clean Water Act Rule Barring Citizen Suits
WASHINGTON, D.C. — The U.S. Supreme Court granted three environmental groups’ request to extend the time to respond to a business’s petition for a writ of certiorari asking the court to decide what test courts should apply when determining whether the diligent prosecution bar of the Clean Water Act (CWA) serves to bar a citizen suit brought under the statute.
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March 03, 2023
New Jersey Judge Sides With State In Dispute Over Mine Pollution By Ford
HACKENSACK, N.J. — A New Jersey judge largely denied a request by Ford Motor Co. for dismissal of a complaint by state environmental regulators over the discharge of toxic substances at a former mine.
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March 03, 2023
Split Pennsylvania High Court: Environmental Board Cannot Use Certain Fee Standards
HARRISBURG, Pa. — An environmental hearing board tasked with adjudicating objections to permits granted by Pennsylvania’s Department of Environmental Protection (DEP) cannot require parties to show that another party acted in bad faith in order to be eligible for legal and attorney fees, the majority of the Pennsylvania Supreme Court held in a vacating two Pennsylvania Commonwealth Court decisions affirming the environmental board’s discretion to apply the bad faith standard.
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March 03, 2023
W.Va. Federal Judge Grants Summary Judgment To Head Of State Environmental Agency
HUNGTINGTON, W.Va. — The cabinet secretary of the West Virginia Department of Environmental Protection (WVDEP) is entitled to summary judgment on Resource Conservation and Recovery Act (RCRA) claims originating from a property where coal mining occurred because the WVDEP did not engage in open dumping and the harm at issue poses no imminent or substantial danger to human health or the environment, a West Virginia federal judge found in granting the secretary’s motion for summary judgment.
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February 27, 2023
In Oil Spill Case, La. Federal Judge Excludes Impermissible Character Evidence
NEW ORLEANS — Two pieces of expert testimony offered by an engineer on behalf of the United States are impermissible because they are intended to show that the previous habits of a wastewater treatment facility operator imply that the operator spilled oil into the Mississippi River for which the United States is seeking to recover cleanup payments, a Louisiana federal judge held in granting the operator’s motion in limine to exclude the testimony.
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February 27, 2023
Supreme Court Won’t Decide If Federal Officers Directed Oil Companies During WWII
WASHINGTON, D.C. — The U.S. Supreme Court on Feb. 27 declined to decide questions about federal officer removal jurisdiction raised by a group of oil companies who argued in a petition for a writ of certiorari that their removal of state law environmental claims was proper under federal officer jurisdiction because they were acting under the direction of federal officers when producing oil in Louisiana during World War II.
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February 27, 2023
9th Circuit Won’t Rehear Dispute Over Approval Of Amazon Air Cargo Facility
SAN FRANCISCO — A divided Ninth Circuit U.S. Court of Appeals on Feb. 24 amended for a second time an opinion originally issued more than a year ago, but again turned away dueling challenges to the Federal Aviation Administration’s approval of a planned 101.5-acre Amazon air cargo facility at the San Bernardino International Airport.