Mealey's Pollution Liability

  • June 11, 2020

    DuPont Properly Removed State Agency’s Suit Over Contaminated Site, Judge Rules

    CAMDEN, N.J. — E.I du Pont de Nemours & Co. and the Chemours Co. FC LLC (collectively, DuPont) properly removed a lawsuit brought by the New Jersey Department of Environmental Protection (NJDEP) and others over a contaminated site in Gibbstown, N.J., that was used for manufacturing explosives during World War I and World War II, a federal judge in New Jersey ruled May 22 after finding that the companies were acting under the federal government when disposing of hazardous substances (New Jersey Department of Environmental Protection v. E.I. du Pont de Nemours & Co., et al., No. 19-cv-14765-NLH-LS, D. N.J., 2020 U.S. Dist. LEXIS 90151).

  • June 11, 2020

    Energy Company Allowed To Include Remediation Costs In Rate Increase, Panel Rules

    ANNAPOLIS, Md. — A Maryland appeals panel on June 1 ruled that an energy company could pass on to consumers almost $6 million in remediation costs for the cleanup of a site where manufactured gas was made as part of a rate increase, finding that the inclusion of the cleanup costs is allowed under the state’s public utility law (Maryland Office of People’s Counsel v. Maryland Public Service Commission, et al., No. 0789, September Term 2019, Md. Spec. App., 2020 Md. App. LEXIS 516).

  • June 10, 2020

    Judge Limits Companies’ Use Of Coast Guard’s Responses To FOIA Requests

    NEW ORLEANS — A federal judge in Louisiana on June 9 granted in part the federal government’s motion in limine seeking to preclude defendant companies in an Oil Pollution Act of 1990 lawsuit from introducing evidence regarding submissions to the U.S. Coast Guard under the Freedom of Information Act (FOIA) and the timeliness of its responses, holding that the information cannot be used to assert a spoliation claim because the companies never previously raised the argument (United States v. ERR LLC, et al., No. 19-2340, E.D. La., 2020 U.S. Dist. LEXIS 100593).

  • June 08, 2020

    Former Property Owner Denied Summary Judgment Over PCB Contamination

    KANSAS CITY, Mo. — A federal judge in Missouri on June 5 denied a motion for summary judgment filed by Kansas City Power & Light Co.’s (KCP&L) in a lawsuit seeking recovery costs for remediation of polychlorinated biphenyl (PCB) contamination at a portion of property it once owned, ruling that genuine disputes exist about whether the chemical was used at the site during the company’s ownership (Substation K Inc. v. Kansas City Power & Light Co., No. 19-cv-00031-SRB, W.D. Mo., 2020 U.S. Dist. LEXIS 99031).

  • June 05, 2020

    9th Circuit Panel Majority Upholds Equal Allocation Of Future PCE Cleanup Costs

    SAN FRANCISCO — A 2-1 Ninth Circuit U.S. Circuit Court of Appeals panel on June 3 affirmed a federal judge in California’s decision to equally allocate future costs for cleanup of perchloroethylene (PCE) contamination between a city and a company that formerly operated a dry cleaning business, holding that the judge did not abuse his discretion when using two alternative methodologies as part of his calculation (Mission Linen Co. v. Visalia, No. 19-15392, 9th Cir., 2020 U.S. App. LEXIS 17441).

  • June 02, 2020

    Judge Remands West Virginia State University’s Groundwater Contamination Suit

    CHARLESTON, W.Va. — A federal judge in West Virginia on June 1 remanded a lawsuit brought by West Virginia State University (WVSU) against the current and past owners of a neighboring site that seeks to have the defendant companies conduct cleanup activities in addition to those already required by the Resource Conservation and Recovery Act (RCRA), holding that the university’s suit does not raise a federal question and that the defendants are not “acting under” the U.S. Environmental Protection Agency by doing work required by a permit issued under the statute (West Virginia State University Board of Governors v. Dow Chemical Co., et al., No. 17-cv-3558, S.D. W.Va., 2020 U.S. Dist. LEXIS 95621).

  • June 01, 2020

    Judge Explains Reasons For Remanding Massachusetts’ Suit Against Exxon Mobil

    BOSTON — A federal judge in Massachusetts wrote in a decision filed May 28 that his March 18 decision to remand the state’s consumer protection lawsuit accusing Exxon Mobil Corp. of misleading consumers and investors about the relationship between the use of its products and climate change was based on the well-pleaded complaint rule and that the state’s claims can proceed in state court because they are not preempted by federal law (Massachusetts v. Exxon Mobil Corp., No. 19-12430-WGY, D. Mass., 2020 U.S. Dist. LEXIS 93153).

  • June 01, 2020

    Couple Tells 7th Circuit Lower Court ‘Improperly Weighed’ PCB Pollution Evidence

    CHICAGO — A Wisconsin couple on May 27 filed a brief in the Seventh Circuit U.S. Court of Appeals arguing that a district court committed reversible error when it granted summary judgment to an industrial facility regarding contamination from polychlorinated biphenyls (PCBs) because it “improperly weighed the evidence and relied on unreliable manipulated data” (William Liebhart, et al. v. SPX Corp., et al., No. 20-1384, 7th Cir.).

  • May 29, 2020

    Group, Beach Club Move Jointly For Remand, Consent Order In Groundwater Case

    BOSTON — An environmental advocacy group and a beach club on May 26 filed a joint motion in the First Circuit U.S. Court of Appeals seeking remand of a groundwater contamination lawsuit against a beach club, arguing that it should remand the case to district court for entry of a proposed consent decree in light of the U.S. Supreme Court’s decision in County of Maui v. Hawai’i Wildlife Fund (Conservation Law Foundation Inc. v. Longwood Venues & Destinations Inc., et al., No. 20-1024, 1st Cir.).

  • May 28, 2020

    9th Circuit Upholds Remand Of Climate Change Suits, Limits Review Of Ruling

    SAN FRANCISCO — A Ninth Circuit U.S. Court of Appeals panel on May 26 limited its review of a federal judge in California’s ruling that remanded three climate change lawsuits brought by counties and municipalities against energy companies and held that the judge properly found that the companies were not acting under the government’s direction when extracting, producing and selling fossil fuels (County of San Mateo, et al. v. Chevron Corp., et al., No. 18-15499, 9th Cir.).

  • May 28, 2020

    Pollution Liability Insurer’s Third-Party Claims Will Proceed, Federal Judge Says

    ATLANTA — A Georgia federal judge on May 22 refused to dismiss a pollution liability insurer’s third-party claims against a company that contracted with its insured because the company is properly named as a third-party defendant by the pollution liability insurer (Colonial Pipeline Co. v. AIG Specialty Insurance Co., et al., No. 19-762,  N.D. Ga., 2020 U.S. Dist. LEXIS 90137).

  • May 28, 2020

    9th Circuit Vacates Ruling Denying Cities’ Motion To Remand Climate Change Suits

    SAN FRANCISCO — A Ninth Circuit U.S. Court of Appeals panel on May 26 overturned a federal judge in California’s ruling denying motions to remand filed by California cities claiming that five energy companies withheld information about the burning of fossil fuels and its effect on climate change, ruling that the cities’ public nuisance claim did not arise under federal law (City of Oakland, et al. v. BP PLC, et al., No. 18-16663, 9th Cir., 2020 U.S. App. LEXIS 16644).

  • May 26, 2020

    Supreme Court Denies Review Of What Triggers CERCLA Statute Of Limitations

    WASHINGTON, D.C. — The U.S. Supreme Court on May 26 refused to review a Seventh Circuit U.S. Court of Appeals ruling finding that a cost recovery lawsuit under the Comprehensive Environmental Response, Compensation and Liability Act brought against an Indiana-based steel manufacturing was timely because it was filed within the three-year statute of limitations for removal actions (Joslyn Manufacturing Co. LLC, et al. v. Valbruna Steel Corp., et al., No. 19-917, U.S. Sup.).

  • May 22, 2020

    Judge Remands City’s Suit Seeking Order Saying Cleanup Must Follow Contracts Code

    FRESNO, Calif. — A California city’s lawsuit seeking a declaration that remedial activities required to clean up perchloroethylene (PCE) contamination at a site that formerly housed a dry cleaning business should be subject to the state’s public contracts code was remanded by a federal judge in California on May 20, the judge found that the city’s lawsuit is not an attack on a February 2019 order that requires the party to share future cleanup costs (City of Visalia v. Mission Linen Supply Inc., No. 19-CV-1809, E.D. Calif., 2020 U.S. Dist. LEXIS 89052).

  • May 22, 2020

    Property Owners Sue Former Owners Under CERCLA For Arsenic Cleanup

    LOS ANGELES — The current owners of a site in Lynwood, Calif., filed a lawsuit in federal court in California on May 20 against the former owners and users of the property seeking cost recovery and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act as well as other state laws for remediation of arsenic contamination (Sticks Lynwood LLC, et al. v. Union Pacific Railroad Co., et al., No. 20-cv-04540, C.D. Calif.).

  • May 21, 2020

    Tribes:  Cert Not Needed For Ruling Affirming Jurisdiction To Impose Storage Fees

    WASHINGTON, D.C. — A company storing hazardous waste on Indian tribes’ land presents no valid reason for the U.S. Supreme Court to review a Ninth Circuit U.S. Court of Appeals’ decision affirming the tribes’ jurisdiction over the company, the tribes assert in a May 20 response brief (FMC Corporation v. Shoshone-Bannock Tribes, No. 19-1143, U.S. Sup.).

  • May 20, 2020

    Federal Judge Confirms $25M Arbitration Award Against Insurer In Environmental Suit

    NEW YORK — A New York federal judge on May 18 confirmed a $25 million arbitration award entered against an excess liability insurer and said that prejudgment interest is warranted in the environmental contamination coverage dispute because the arbitration tribunal did not misapply the law in interpreting the policy terms at issue (ExxonMobil Oil Corp. v. TIG Insurance Co., No. 16-9527, S.D. N.Y., 2020 U.S. Dist. LEXIS 87407).

  • May 18, 2020

    U.S. Steel’s Failure To Report Post-Fire Emissions Did Not Violate CERCLA

    PITTSBURGH — A federal judge in Pennsylvania on May 14 dismissed with prejudice an environmental group’s lawsuit accusing U.S. Steel Corp. of violating the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by failing to report to the National Reporting Center (NRC) emissions of coke oven gases from one of its facilities following fires in 2018 and 2019, holding that the emissions were subject to Clean Air Act (CAA) permits and thus exempt from CERCLA’s reporting requirement (Clean Air Council v. U.S. Steel Corp., No. 19-cv-1072, W.D. Pa., 2020 U.S. Dist. LEXIS 84927).

  • May 15, 2020

    Judge Denies Motion To Enforce Judgment Over PCE Contamination

    FRESNO, Calif. — A federal judge in California on May 12 denied a motion to enforce a judgment that requires a city and a former dry cleaning operator to equally share the future costs of remediating perchloroethylene (PCE) contamination under the Comprehensive Environmental Response, Compensation and Liability Act, holding that the city should not be ordered to provide a schedule of repairs to its sewer system and pay half of the cost of a pilot study that has yet to be conducted (Mission Linen Supply v. City of Visalia, No. 15-CV-0672 AWI EPG, E.D. Calif., 2020 U.S. Dist. LEXIS 83630).

  • May 14, 2020

    New York Federal Judge Says Arbitration Panel Properly Interpreted Pollution Exclusion

    NEW YORK — A New York federal judge on May 12 granted an insured’s motion to confirm an arbitration award in favor of the insured for underlying groundwater contamination liabilities because the arbitration panel’s interpretation of a portion of the pollution exclusion was not a manifest disregard of the law (HDI Global SE, f/k/a HDI Gerling Industrie Versicherung AG v. Phillips 66 Co., No. 20-631, S.D. N.Y., 2020 U.S. Dist. LEXIS 83834).

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