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Mealey's Pollution Liability

  • September 25, 2018

    Judge Denies Injunction In Groundwater Dispute, Says Evidence ‘Merely Speculative’

    TRENTON, N.J. — A federal judge in New Jersey on Sept. 21 denied a motion for preliminary injunction filed by two environmental groups that have brought claims against a manufacturer for alleged violations of the Clean Water Act (CWA), concluding that the groups’ evidence that a proposed marina would cause “irreparable injury” was “merely speculative” (Raritan Baykeeper, et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).

  • September 25, 2018

    6th Circuit: No Liability For Groundwater Contamination Under Clean Water Act

    CINCINNATI — A split panel of the Sixth Circuit U.S. Court of Appeals on Sept. 24 affirmed the dismissal of a groundwater contamination lawsuit pursuant to the Clean Water Act (CWA), ruling that the CWA does not impose liability on surface water pollution that comes via groundwater.  The panel, however, reversed and remanded the case with regard to the claim asserted by environmental groups under the Resource Recovery and Conservation Act (RCRA) (Kentucky Waterways Alliance, et al. v. Kentucky Utilities Co., No. 17-cv-292-DCR, 6th Cir., 2018 U.S. App. LEXIS 27238).

  • September 24, 2018

    Judge Refuses To Sever Port District’s PCB Claims From San Diego’s

    SAN DIEGO — A federal judge in California on Sept. 21 refused to sever the San Diego Unified Port District’s public nuisance claims against Monsanto Co. over polychlorinated biphenyl (PCB) contamination from those brought by the city of San Diego, finding that “fundamental fairness and judicial economy weigh against severance” (San Diego Unified Port District, et al. v. Monsanto Co., et al., No. 15cv598-WQH-AGS, S.D. Calif., 2018 U.S. Dist. LEXIS 162122).

  • September 21, 2018

    Judge Denies Companies’ Summary Judgment Motions In Contamination Dispute

    CHICAGO — A federal judge in Illinois on Sept. 19 denied motions for summary judgment filed by a legal entity in charge of remediating the Lake Calumet Cluster Superfund Site and two potentially responsible parties, finding that questions exist as to whether they should contribute to remediation costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because genuine disputes exist on whether waste resin in tanks delivered by one company is hazardous and who arranged for the disposal of jet fuel waste associated with the other company (LCCS Group v. A.N. Webber Logistics Inc., et al., No. 16 C 5827, N.D. Ill., 2018 U.S. Dist. LEXIS 159803).

  • September 19, 2018

    Magistrate Judge Says CERCLA Contribution Claim Untimely, Should Be Dismissed

    NEW YORK — A federal magistrate judge in New York on Sept. 10 recommended dismissing with prejudice a land owner’s claim for contribution under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), finding that it was untimely because the three-year statute of limitations began to run when the plaintiff company entered into an Administrative Order of Consent (AOC) with the New York State Department of Environmental Conservation (NYSDEC) in 2007 (Brooklyn Union Gas Co. v. Exxon Mobil Corp., et al., Non. 17-CV-0045, E.D. N.Y., 2018 U.S. Dist. LEXIS 145903).

  • September 17, 2018

    9th Circuit Upholds $8.25 Million Award To Tribes For CERCLA Costs

    SEATTLE — The Ninth Circuit U.S. Court of Appeals on Sept. 14 affirmed a federal court’s finding that the Confederated Tribes of the Colville Reservation are entitled to recover more than $8.25 million in response costs from a polluter of the Columbia River for enforcement actions taken under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Joseph A. Pakootas, et al. v. Teck Cominco Metals, Ltd., No. 16-35742, 9th Cir., 2018 U.S. App. LEXIS 26098).

  • September 13, 2018

    Panel: Power Company Not Liable For Tainted Groundwater

    RICHMOND, Va. — A panel of the Fourth Circuit U.S. Court of Appeals on Sept. 12 partially reversed and partially affirmed a lower court’s ruling that a power company did not violate the conditions of its discharge permit and was not liable for groundwater contamination (Sierra Club v. Virginia Electric & Power Company f/k/a Dominion Virginia Power, No. 17-1895, 4th Cir.).

  • September 13, 2018

    3rd Circuit Vacates Judge’s Allocation Of Costs In Cleanup Action

    PHILADELPHIA — A Third Circuit U.S. Court of Appeals panel on Sept. 11 overturned a decision that a defendant company in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit was responsible for 62 percent of cleanup costs incurred in remediating a property in Greenville, Pa., finding that the judge used a flawed methodology to calculate the amount (Trinity Industries Inc., et al. v. Greenlease Holding Co., et al., Nos. 16-1994, 16-2244, 3rd Cir., 2018 U.S. App. LEXIS 25693).

  • September 11, 2018

    San Diego’s Request To Dismiss Monsanto’s Defenses Premature, Judge Rules

    SAN DIEGO — A federal judge in California on Sept. 6 denied a motion for judgment on the pleadings filed by the San Diego Unified Port District and city of San Diego, finding that their requests to dismiss Monsanto Co.’s affirmative defenses to claims that the company is liable for polychlorinated biphenyl (PCB) contamination cannot be decided at this stage of the proceedings (San Diego Unified Port District, et al. v. Monsanto, et al., No. 15cv578-WQH-AGS, S.D. Calif., 2018 U.S. Dist. LEXIS 152221).

  • September 10, 2018

    Indiana Federal Judge Excludes Portions Of Insured’s Expert Testimony

    FORT WAYNE, Ind. — An Indiana federal judge on Sept. 5 agreed with an insurer that a former insurance claims handler is not qualified to testify on environmental matters and said the insured’s expert testimony should be limited to insurance claims procedures (Valley Forge Insurance Co. v. Hartford Iron & Metal Inc., et al., No. 14-6, N.D. Ind., 2018 U.S. Dist. LEXIS 150478).

  • September 6, 2018

    Massachusetts High Court Upholds Cap Regulating Electric Sector’s Emissions

    BOSTON — The Supreme Judicial Court of Massachusetts on Sept. 4 affirmed the implementation of caps implemented by the state’s Department of Environmental Protection (DEP) to reduce greenhouse gas emissions from electric providers, finding that the agency and the Executive Office of Energy and Environmental Affairs did not exceed their authority (New England Power Generators Association Inc., et al. v. Department of Environmental Protection, et al., No. SJC-12477, Mass. Sup., 2018 Mass. LEXIS 564).

  • September 4, 2018

    Fourth-Party Plaintiff Cannot Seek Injunctive Relief Under CERCLA, Judge Says

    KANSAS CITY, Kan. — A company cannot seek injunctive relief in a fourth-party suit seeking cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a federal judge in Kansas ruled Aug. 31, finding that the statute does not provide such relief to private litigants (AK Steel Corp. v. PAC Operating LP, et al., No. 15-9260-CM, D. Kan., 2018 U.S. Dist. LEXIS 148945).

  • September 4, 2018

    Magistrate Judge Briefly Extends Deadline For Clean Water Act Penalty Payment

    BOISE, Idaho — A federal magistrate judge in Idaho on Aug. 30 gave a company until Sept. 14 to pay a $251,000 civil contempt penalty for ongoing violations of the Clean Water Act and denied the company’s motion to extend the deadline until Dec. 31 because he was not persuaded that its plan to raise money for the penalty by selling cryptocurrency would be successful (Idaho Conservation League, et al. v. Atlanta Gold Corp., No. 11-cv-161-REB, D. Idaho, 2018 U.S. Dist. LEXIS 149527).

  • September 4, 2018

    Groups’ Request For Reconsideration On CWA Standing Denied By Judge

    TRENTON, N.J. — A federal judge in New Jersey on Aug. 29 refused to reconsider an earlier ruling that two environmental groups lack standing to bring claims under the Clean Water Act, finding that they could have raised the issue earlier in the litigation (Raritan Baykeeper, et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J., 2018 U.S. Dist. LEXIS 147469).

  • August 31, 2018

    Judge: Economic-Loss Rule Bars Some Of Landowner’s Contamination Claims

    RALEIGH, N.C. — A federal judge in North Carolina on Aug. 28 dismissed a landowner’s state law claims for negligence, negligence per se and trespass, as well as a portion of its North Carolina Unfair and Deceptive Trade Practices Act (UDTPA) claim, over its purchase of a site that has contaminated soil and groundwater, finding that the allegations are barred by the economic-loss rule because they stem from assertions that the seller breached the terms of the sales agreement that required it to remediate the property (Avx Corp. v. Corning Inc., et al., No. 15-cv-543, E.D. N.C., 2018 U.S. Dist. LEXIS 145790).

  • August 30, 2018

    Judge: Neighboring Property Owner Did Not Operate Hazardous Waste Facility

    COLUMBUS, Ohio — A federal judge in Ohio on Aug. 28 dismissed claims for operating a hazardous waste facility without a permit, failure to have a closure plan, ultrahazardous activity and failure to remove hazardous waste in accordance with an approved closure plan brought by the Ohio attorney general over the owner of a property that neighbors a site with pesticide contamination, finding that the defendant did not operate a hazardous waste facility (Ohio, ex rel Michael DeWine v. John G. Breen, et al., No. 16-cv-802, S.D. Ohio, 2018 U.S. Dist. LEXIS 146327).

  • August 29, 2018

    Pennsylvania Supreme Court Denies Insured’s Petition For Appeal In Environmental Suit

    HARRISBURG, Pa. — The Pennsylvania Supreme Court on Aug. 22 refused to hear an insured’s appeal of a lower court’s ruling that no coverage is owed for environmental contamination at a number of sites throughout the country because it is not clear that the contamination was caused solely by the insured’s operations and the policies at issue provide coverage only for contamination that was caused by the insured’s operations (Consolidated Rail Corp. v. ACE Property & Casualty Insurance Co., et al., No. 138 EAL 2018, Pa. Sup., 2018 Pa. LEXIS 4399).

  • August 28, 2018

    California City Sues Monsanto, Says PCB Products Contaminated Stormwater

    SAN DIEGO — The city of Chula Vista, Calif., on Aug. 21 sued Monsanto Co., Solutia Inc. and Pharmacia Corp. in California federal court, claiming that their manufacturing of products containing polychlorinated biphenyls (PCBs) has resulted in contamination to stormwater that is discharged into the San Diego Bay (Chula Vista v. Monsanto Co., et al., No. 18cv1942, S.D. Calif.).

  • August 28, 2018

    3rd Circuit: EPA’s Extension Was Not Final Action, Cannot Be Reviewed

    PHILADELPHIA — The U.S. Environmental Protection Agency’s decision to extend a deadline to respond to the Delaware Department of Natural Resources and Environment’s petition complaining about emissions from a Pennsylvania power plant cannot be reviewed because it was not a final agency action, a Third Circuit U.S. Court of Appeals panel ruled Aug. 21 in finding that it lacked jurisdiction over the state agency’s appeal (Delaware Department of Natural Resources and Environment v. U.S. Environmental Protection Agency, No. 17-1644, 3rd Cir., 2018 U.S. App. LEXIS 23298)

  • August 22, 2018

    Judge Limits Defendants’ CERCLA Counterclaims In Suit Over Site Cleanup

    DAYTON, Ohio — A federal judge in Ohio on Aug. 20 held that two companies in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit could not seek cost recovery under the Section 107(a) of the statute in their counterclaims but could seek contribution under Section 113(f) because they are named as defendants in the lawsuit (Hobart Corporation, et al. v. The Dayton Power & Light Co., et al., No. 13-cv-115, S.D. Ohio, 2018 U.S. Dist. LEXIS 140994).