GULFPORT, Miss. — A federal judge in Louisiana on Dec. 13 denied motions for summary judgment filed by an environmental group and a construction company accused of discharging amounts of storm water that exceeded the limits of a permit issued under the Clean Water Act (CWA), finding that neither party presented sufficient evidence to warrant granting the motions (Gulf Restoration Network v. Oscar Renda Contracting Inc., No. 17cv130-LG-RHW, S.D. Miss., 2018 U.S. Dist. LEXIS 210073).
NEW ORLEANS — A 2-1 panel of the Fifth Circuit U.S. Court of Appeals said in a Nov. 9 ruling released Dec. 9 that an appeals panel of the Court Supervised Settlement Program (CSSP) for the Deepwater Horizon Economic and Property Damages Class Action Settlement Agreement erred when awarding a shrimping company $2.5 million for its claim because it erred when classifying shipping materials, labels and carbon dioxide as fixed costs (BP Exploration & Production Inc., et al. v. Claimant ID 100094497, No. 17-30949, 5th Cir., 2018 U.S. App. LEXIS 34672).
NEW YORK— A company that recycles and sells construction debris and waste is involved in an industrial activity that is subject to the Clean Water Act, a Second Circuit U.S. Court of Appeals panel held Dec. 17 after finding that a federal magistrate judge in New York erred when concluding that the company does not engage in activity covered by the statute (Sierra Club v. Con-Strux LLC, No. 18-257-cv, 2nd Cir., 2018 U.S. App. LEXIS 35280).
GULFPORT, Miss. — A federal judge in Mississippi on Dec. 13 denied motions filed by parties in a Clean Water Act (CWA) lawsuit seeking to limit or exclude the testimony of three experts, finding that the challenges went to the weight of the experts’ opinions that can be raised during cross-examination (Gulf Restoration Network v. Oscar Renda Contracting Inc., No. 17cv130-LG-RHW, S.D. Miss., 2018 U.S. Dist. LEXIS 210075).
SEATTLE — An insured is not entitled to coverage for environmental contamination cleanup costs because no suit has been filed against the insured as required by the policies at issue, a Washington federal judge said Dec. 14 in granting the insurers’ motion for summary judgment (Continental Casualty Co., et al. v. C.D. Stimson Co., No. 17-235, W.D. Wash., 2018 U.S. Dist. LEXIS 211245).
NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Dec. 13 upheld a federal judge in Louisiana’s decision to not review a Court Supervised Settlement Program (CSSP) appeals panel’s ruling that a dirt work services business was entitled to only $57,394 in compensation for business losses stemming from the oil spill that followed the explosion of the Deepwater Horizon oil rig, holding that question of whether the claims administrator properly applied the terms of the settlement program was not before the court (Claimant ID 100196090 v. BP Exploration & Production Inc., et al., No. 18-30137, 5th Cir., 2018 U.S. App. LEXIS 35106).
SEATTLE — Environmental liability investigation costs incurred by an insured as a result of an agreement with the Washington Department of Ecology should be classified as defense costs and not as damages under an insurer’s policies, the insured argues in a Dec. 3 brief filed in the Ninth Circuit U.S. Court of Appeals (The Travelers Indemnity Co. v. Richland, Nos. 18-35543, 18-35558, 9th Cir.).
GREAT FALLS, Mont. — A Montana federal judge should reject a request by the Keystone XL pipeline developers to amend his order shutting down the project to allow them to continue preconstruction activities because they would cause harm and affect the court-directed federal review process, a Native American group and environmentalists told the judge Dec. 5 (Indigenous Environmental Network, et al. v. U.S. Department of State, et al., No. 4:17-cv-29, D. Mont.).
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).
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).
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).
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).
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).
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.).
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).
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.).
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.).
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).
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.).
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).