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

Mealey's Pollution Liability

August 14, 2023
Norfolk Southern Says It Would Be Premature To Strike Affirmative Defenses

YOUNGSTOWN, Ohio — Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) filed a brief in Ohio federal court arguing that the U.S. Environmental Protection Agency’s motion to strike Norfolk Southern’s affirmative defenses in the consolidated lawsuits brought by Ohio and the U.S. government related to injuries from the train derailment in East Palestine ask the court to prematurely adjudicate the merits of affirmative defenses before any discovery has taken place.
August 11, 2023
Plaintiffs, Railroad Agree To Terms For Filing Amended Train Derailment Case

YOUNGSTOWN, Ohio — Residents and businesses who say they have been injured from exposure to toxic chemicals released from the train derailment in East Palestine, Ohio, and Norfolk Southern, which operates the railroad, have filed a joint motion in Ohio federal court saying Norfolk Southern’s pending motion to dismiss should apply fully to a proposed first amended master consolidated class complaint because of the limited scope of the new allegations it contains.
August 09, 2023
In CERCLA Row, Mo. Federal Judge Says Fact Questions Surround Affirmative Defense

JOPLIN, Mo. — Summary judgment is not appropriate because questions of fact exist about whether the environmental harm caused by phosphogypsum at a former fertilizer plant can be divided among the plant’s former operators, a Missouri federal judge found in denying cross-motions for summary judgment on a divisibility of harm affirmative defense raised by a former operator of the plant, which was sued by a development company that purchased the polluted site and incurred costs.
August 09, 2023
Ind. Federal Judge Allows Intervenors To Seek Fees In Lake Michigan Pollution Case

HAMMOND, Ind. — In adopting a report and recommendation from a magistrate judge, an Indiana federal judge granted Chicago and an environmental group’s motion for leave to file a motion for fees in one of two parallel proceedings concerning a large release of hazardous substances from a steel plant into Lake Michigan.
August 08, 2023
Minnesota High Court: State Agency’s Request To EPA Was Procedurally Irregular

ST. PAUL, Minn. — Through irregular procedures, the Minnesota Pollution Control Agency (MPCA) acted arbitrarily and capriciously when it asked the U.S. Environmental Protection Agency to delay providing written comments regarding a combined National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit before ultimately approving the permit for a proposed mine and process plant, the Minnesota Supreme Court held in remanding the permit to the MPCA.
August 07, 2023
Insurer Owes $3.5M For Defense Costs, Fees Incurred In Toxic Emissions Suit

MIAMI — An insurer owes its insured approximately $3.5 million in damages and attorney fees and costs incurred by the insured for an underlying lawsuit alleging that toxic emissions created by the insured’s practice of sugarcane burning caused property damage and bodily injuries, a Florida federal judge said in partly granting the insured’s motion for summary judgment.
August 07, 2023
Groups Have Standing To Bring Pollution Claims Against Car Dismantling Company

SAN DIEGO — Two environmental groups have standing to brings claims alleging that an automotive dismantling company polluted the San Luis Rey River near San Diego because its members’ claimed injuries of loss of use and enjoyment of the area around the river are reasonably traceable to the company’s actions and redressable, a California federal judge held in partly granting the company’s motion to dismiss.
August 03, 2023
9th Circuit Denies San Francisco’s Petition To Review Its Latest NPDES Permit

SAN FRANCISCO — The U.S. Environmental Protection Agency has the authority to include two narrative prohibitions and a long-term control plan (LTCP) update requirement in San Francisco’s National Pollutant Discharge Elimination System (NPDES) sewer system permit because such general and broad prohibitions are permitted under the Clean Water Act (CWA) and San Francisco has not updated its LTCP since 1991, the majority of a Ninth Circuit U.S. Court of Appeals panel found in denying San Francisco’s petition for review of the permit.
August 03, 2023
Calif. Federal Judge Refuses To Dismiss Third-Party Claims Of PCE Contamination

SANTA ANA, Calif. — The former operator of a dry-cleaning business sufficiently pleaded its third-party claims under the Comprehensive Environmental Response, Compensation, and Liability Act and California law because it explained where and how hazardous substances migrated from a nearby property onto its own, a California federal judge found in denying a motion to dismiss filed by three third-party defendants.
August 02, 2023
State Agencies Were Not Operators Under CERCLA, California Federal Judge Says

SACRAMENTO, Calif. — Two California agencies that oversaw the remediation of a contaminated former wood preserving facility were not operators under the Comprehensive Environmental Response, Compensation, and Liability Act because the counterclaims brought against them by a group of intervening insurers contained no allegations that the agencies controlled the facility while hazardous substances were being released, a California federal judge held in granting the agencies’ motion to dismiss.
August 02, 2023
Briefly: Pipeline Companies To Pay $12.5M In Penalties For 2 Oil Spills

WASHINGTON, D.C. — The U.S. Environmental Protection Agency announced that it has reached a consent agreement with two pipeline companies under which they will pay a combined $12.5 million in civil penalties for violating safety laws and the Clean Water Act (CWA) in connection with oil spills in Montana and North Dakota.
August 01, 2023
Panel Affirms Ruling In Favor Of Insurer In Pollution Suit On Duty To Defend Issue

NEW ORLEANS — No coverage is afforded for an underlying suit against an insured alleging that the insured’s junkyard operations polluted stormwater runoff because the policies’ pollution exclusion bars coverage for the underlying allegations, the Fifth Circuit U.S. Court of Appeal said July 31 in affirming a district court’s ruling.
July 31, 2023
11th Circuit Won’t Reconsider Diligent Prosecution Bar Holding in CWA Dispute

ATLANTA — An 11th Circuit U.S. Court of Appeal panel on July 28 denied a petition for hearing of its previous opinion where it found that the U.S. Environmental Protection Agency and Georgia Department of Resources (GDNR) were diligently prosecuting 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 was barred.
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.