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Mealey's Pollution Liability

  • September 18, 2018

    $120M Settlement Reached In Environmental Suit, According To Recent Filing

    NEW YORK — An insured and one of its excess insurers on Aug. 30 notified a New York federal judge that they stipulated to a settlement regarding environmental contamination remediation costs in a suit that was filed by the insured more than 30 years ago (Olin Corp. v. Lamorak Insurance Co., et al., No. 84-1968, S.D. N.Y.).

  • September 17, 2018

    Insurer Owed Duty To Defend Insured Against Environmental Claims

    BOSTON — A Massachusetts federal judge on Sept. 13 adopted a magistrate judge’s recommendation to grant a motion for summary judgment filed by the insured’s assignee in an environmental contamination coverage dispute after determining that the magistrate judge’s analysis regarding the policy’s sudden and accidental exception to the pollution exclusion was correct (Plaistow Project LLC v. Ace Property & Casualty Insurance Co., No. 16-11385, D. Mass., 2018 U.S. Dist. LEXIS 155965).

  • 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).

  • August 20, 2018

    Shoring System Redesign Was Not Cleanup Cost Under Environmental Policy

    SAN FRANCISCO — A California federal judge on Aug. 15 determined that an insurer is entitled to summary judgment because the cost of redesigning a temporary shoring system is not a cleanup cost under an environmental legal liability policy (Essex Walnut Owner L.P. v. Aspen Specialty Insurance Co., No. 17-6435, N.D. Calif., 2018 U.S. Dist. LEXIS 138276).

  • August 15, 2018

    Magistrate Recommends Dismissing Clean Water Act Claims Over Water Quality

    MIAMI — A federal magistrate judge in Florida on Aug. 10 recommended granting a power company’s motion for judgment on a claim brought by three groups saying that discharges from the defendant’s power plant violate the local water quality standards for ammonia, finding that the Clean Water Act (CWA) does not regulate those standards (Southern Alliance for Clean Energy, et al. v. Florida Power & Light Co., No. 16-23017-CIV-GAYLES/OTAZO-REYES, S.D. Fla., 2018 U.S. Dist. LEXIS 136422).

  • August 14, 2018

    Monsanto Lacks Standing To Bring Counterclaims Over PCB Contamination, Judge Says

    SAN DIEGO — A federal judge in California on Aug. 10 dismissed counterclaims for unjust enrichment and violation of the Clean Water Act brought by Monsanto Co., Pharmacia LLP and Solutia Inc. (collectively, Monsanto) against the city of San Diego, which claims that the company is liable for polychlorinated biphenyl (PCB) contamination, finding that the defendant company lacks standing to bring its claims (City of San Diego v. Monsanto Co., et al., No. 15cv578, S.D. Calif., 2018 U.S. Dist. LEXIS 135588).