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Mealey's Pollution Liability

  • December 6, 2018

    Judge: Challenges To Expert Opinions On PCB Contamination Should Wait For Trial

    CONCORD, N.H. — A federal judge in New Hampshire on Dec. 4 denied without prejudice competing motions to exclude expert testimony on the source of polychlorinated biphenyls (PCBs) at a property pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., finding that the admissibility of the testimony should be determined at trial (Mareld Co. Inc. v. New England Telephone & Telegraph Co., No. 16-cv-390-PB, D. N.H., 2018 U.S. Dist. LEXIS 204909).

  • December 6, 2018

    Judge: Parties’ Contract Claims Over Liability For Cleanup Premature

    HANNIBAL, Mo. — A federal judge in Missouri on Nov. 16 denied competing motions for summary judgment filed by the seller of a site that was contaminated with trichloroethylene (TCE) and the buyer of the property, finding that their breach of contract claims were not ripe for adjudication because the seller’s insurance company has yet to decide if it will cover the costs incurred in remediating the property (Cooper Industries LLC v. Spectrum Brands Inc., No. 16 CV 39 CDP, E.D. Mo., 2018 U.S. Dist. LEXIS 195715).

  • December 6, 2018

    Claimant Unable To Show Property In Spill Recovery Zone, 5th Circuit Says

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Dec. 5 affirmed a federal judge in Louisiana’s refusal to review the denial of a claimant’s request for damages under the Deepwater Horizon Economic Property Damages Settlement program, finding that a map submitted by the claimant to show that it is an area subject to compensation was for informational purposes only (Claimant ID 100299837 v. BP Exploration & Production Inc., et al., No. 18-30684, 2018 U.S. App. LEXIS 34287).

  • December 5, 2018

    Judge Dismisses Man’s Suit Over Alleged Invention To Limit Oil Spill’s Spread

    NEW ORLEANS — A federal judge in Louisiana on Nov. 30 dismissed a man’s lawsuit claiming that BP Exploration & Production Inc., BP America Production Co. and CB&I Group Inc. were unjustly enriched by their use of his invention to prevent the flow of oil from the Macondo well in the  Gulf of Mexico into marshes, explaining that the plaintiff did not sufficiently describe the device he invented (Barry J. Badeaux v. BP Exploration & Production Inc., et al., No. 18-6606, E.D. La., 2018 U.S. Dist. LEXIS 203223).

  • December 4, 2018

    11th Circuit Affirms Dismissal Of Suit Against Government, Cleanup Contractors

    ATLANTA — An 11th Circuit U.S. Court of Appeals panel on Nov. 30 affirmed the dismissal of a Federal Tort Claims Act (FTCA) suit brought against two government contractors and the United States, holding that the claims against the contractors were barred by the doctrine of res judicata and that the FTCA’s discretionary function exception applied to a property owner’s claim against United States (Gadsden Industrial Park LLC v. United States, et al., No. 17-15325, 11th Cir., 2018 U.S. App. LEXIS 33656).

  • December 3, 2018

    U.S. High Court Invites Solicitor General To File Brief In Groundwater Case

    WASHINGTON, D.C. — The U.S. Supreme Court on Dec. 3 invited the U.S. solicitor general to file a brief in a groundwater contamination lawsuit in which a pipeline company argues that a lower court wrongly ruled that the Clean Water Act (CWA) applies not only to the discharge of pollutants into navigable water but also to the discharge of pollutants into soil and groundwater. The court has not yet granted certiorari (Kinder Morgan Energy, et al. v. Upstate Forever, et al., No. 18-268, U.S. Sup.).

  • November 30, 2018

    United States, Departments Did Not Operate Contaminated Site, Judge Rules

    NEWARK, N.J. — A federal judge in New Jersey on Nov. 28 awarded summary judgment to the United States, as well as the U.S. Department of Defense and U.S. Department of Commerce, finding that the defendants cannot be held liable for response costs for the cleanup of a site because they were not arrangers or operators of the facility under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (PPG Industries Inc. v. United States, et al., No. 12-3526, D. N.J., 2018 U.S. Dist. LEXIS 199930).

  • November 30, 2018

    Split Arizona High Court Rejects Tribe’s Nuisance Suit Over Wastewater Snow

    PHOENIX — Having snow made with treated sewage water cover sacred Indian ground is not the kind of “special injury” required for a Native American tribe to maintain a public nuisance suit against a ski resort and city, the Arizona Supreme Court held Nov. 29 (Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, et al., No. CV-18-0057, Ariz. Sup.).

  • November 30, 2018

    Utility Company Seeks Costs Following Circuit Court’s Refusal To Rehear Case

    NORFOLK, Va. — An electric utility company on Nov. 13 filed a brief in Virginia federal court arguing that it is entitled to an award of costs following a decision by a federal appellate court that denied an environmental group’s petition for rehearing en banc in a groundwater contamination case that was based on an allegation that the company had violated the conditions of its discharge permit (Sierra Club v. Virginia Electric & Power Company f/k/a Dominion Virginia Power, No. 15-112, E.D. Va.).

  • November 30, 2018

    5th Circuit Affirms Denial Of Defunct Surgery Center’s Claim For Economic Damages

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Nov. 28 found that a federal judge in Louisiana did not abuse his discretion when refusing to review a now-defunct outpatient surgery center’s claim for economic damages under the Court Supervised Settlement Program (CSSP) for economic and property damages sustained as a result of the oil spill in the Gulf of Mexico that followed the April 20, 2010, explosion of the Deepwater Horizon oil rig, holding that neither the claims administrator nor the appeals panel erred when denying the claim (Claimant ID 100227611 v. BP Exploration & Production Inc., et al., No. 18-30396, 5th Cir., 2018 U.S. App. LEXIS 33357).

  • November 27, 2018

    6th Circuit Denies En Banc Rehearing Of Groundwater Contamination Lawsuit

    CINCINNATI — The Sixth Circuit U.S. Court of Appeals on Nov. 26 denied a petition for rehearing en banc in a groundwater contamination lawsuit pursuant to the Clean Water Act (CWA) and the Resource Recovery and Conservation Act (RCRA), ruling that the issues raised in the petition were fully considered in the original submission and decision of the case (Kentucky Waterways Alliance, et al. v. Kentucky Utilities Co., No. 17-cv-292-DCR, 6th Cir.).

  • November 26, 2018

    Federal Magistrate Judge Says Insurer Has No Further Duty For Oil Spill Costs

    NEW YORK — A New York federal magistrate judge on Nov. 7 determined that an excess insurer has no further duty to indemnify its insured for oil spill remediation costs because the evidence shows that the parties never intended for the excess insurer to continue paying pollution defense costs after the policy’s limit for pollution cleanup and response costs was reached (American Commercial Lines LLC, et al. v. Water Quality Insurance Syndicate, No. 09-7957, S.D. N.Y., 2018 U.S. Dist. LEXIS 194202).

  • November 26, 2018

    Judge Certifies Ruling In Youths’ Climate Change Suit, Stays Case Pending Appeal

    EUGENE, Ore. — A federal judge in Oregon on Nov. 21 stayed a lawsuit brought by a number of youths over the government’s knowledge about the burning of fossil fuels and climate change pending the decision by the Ninth Circuit U.S. Court of Appeals as to whether the judge erred when denying the government’s motion to dismiss the action (Kelsey Cascadia Rose Juliana, et al. v. United States, et al., No. 15-cv-01517, D. Ore.).

  • November 26, 2018

    No Coverage Owed Under Excess Policies For Insured’s Remediation Costs, Judge Says

    NEW YORK — An insured seeking coverage for environmental remediation costs is not entitled to coverage under excess policies because the costs, when allocated on a pro rata basis over a 40-year period, do not reach the attachments points of the excess policies, a New York federal judge said Nov. 24 (Olin Corp. v. Certain Underwriters at Lloyd’s, London, et al., No. 18-8197, S.D. N.Y., 2018 U.S. Dist. LEXIS 199079).

  • November 16, 2018

    Contamination Coverage Suit To Be Litigated In Missouri Rather Than North Carolina

    CHARLOTTE, N.C. — An insurer’s suit filed in North Carolina federal court and seeking a declaration that no coverage is owed to an insured for more than $3 million in environmental remediation costs must be dismissed because the dispute can be litigated in Missouri federal court where the insured’s suit against the insurer is pending, a North Carolina federal judge said Nov. 15 (Great American E&S Insurance Co. v. Butterball LLC, No. 18-113, E.D. N.C., 2018 U.S. Dist. LEXIS 194871).

  • November 13, 2018

    City Tells 2nd Circuit To Reverse Dismissal Of Climate Change Suit

    NEW YORK — New York City says in a Nov. 8 brief filed in the Second Circuit U.S. Court of Appeals that a federal judge’s ruling dismissing its suit against five producers of fossil fuels over climate change should be reversed because the court can provide remedies for local harms stemming from the defendants’ alleged nuisance and trespass (City of New York v. BP PLC, et al., No. 18-2188, 2nd Cir.).

  • November 9, 2018

    Judge: Group Lacks Standing To Seek Submission Of Greenhouse Gas Report

    WASHINGTON, D.C. — A federal judge in the District of Columbia on Nov. 8 dismissed without prejudice a lawsuit brought by the Center for Biological Diversity (CBD) against the U.S. Department of State and its acting secretary John J. Sullivan that seeks to require the department to submit and disclose two greenhouse gas concentration reports required by the United Nations Framework Convention on Climate Change (UNFCCC), finding that the organization lacked standing (Center of Biological Diversity v. United States Department of State, et al., No. 18-563 D. D.C., 2018 U.S. Dist. LEXIS 191073)

  • November 9, 2018

    9th Circuit Stays Climate Change Suit Pending Resolution Of Government’s Petition

    SAN FRANCISCO — A Ninth Circuit U.S. Court of Appeals panel on Nov. 8 stayed proceedings in a lawsuit brought by youths claiming that the government failed to implement policies to protect against climate change, finding that the government’s third petition for a writ of mandamus “raises issues that warrant an answer” (In re:  United States of America, No. 18-73014, 9th Cir.).

  • November 8, 2018

    Government Files 3rd Petition For Mandamus Relief In Climate Change Suit

    SAN FRANCISCO — The federal government on Nov. 5 filed in the Ninth Circuit U.S. Court of Appeals its third petition seeking a writ of mandamus in a suit brought by a number of youths accusing the government of failing to inform the public that it knew about the association between the burning of fossil fuels and climate change but failed to implement any policies to prevent the environment (In re:  United States, No. 18-73014, 9th Cir.).

  • November 8, 2018

    Government Asks Federal Judge To Reconsider Ruling In Youths’ Climate Change Suit

    EUGENE, Ore.— The federal government on Nov. 5 asked a federal judge in Oregon to reconsider her ruling refusing to certify for interlocutory appeal a decision denying its motion to dismiss a lawsuit brought by a number of youths over climate change, citing a Nov. 2 decision by the U.S. Supreme Court that denied its motion to stay the suit (Kelsey Cascadia Rose Juliana, et al. v. United States, et al., No. 15-cv-01517, D. Ore.).