Mealey's Pollution Liability
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December 26, 2019
Magistrate Judge Refuses To Consolidate Suits Over Landfill’s Emissions
ROCHESTER, N.Y. — A federal magistrate judge in New York on Dec. 16 refused to consolidate two lawsuits brought under the Resource Conservation and Recovery Act (RCRA) and Clean Air Act (CAA) against the operator of a landfill over noxious emissions, holding that it would be prejudicial to the plaintiffs (Fresh Air for the Eastside Inc. v. Waste Management of New York LLC, et al., No. 18-cv-6588, W.D. N.Y., 2019 U.S. Dist. LEXIS 216168).
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December 26, 2019
Judge: Residents Barred From Seeking Investigative, Relocation Costs Under CERCLA
FORT WAYNE, Ind. — Residents of a housing complex that was built on property that was later designated a Superfund site cannot seek to recover costs for the investigation of lead and arsenic contamination and relocation to temporary housing under the Comprehensive Environmental Response, Compensation, and Liability Act, a federal judge in Indiana ruled Dec. 16 in granting a motion for partial summary judgment filed by E.I. du Pont de Nemours and Co. and The Chemours Co., finding that the plaintiffs were required to pay their attorney for the investigative costs pursuant to a retainer agreement and that the U.S. Environmental Protection Agency agreed to pay for temporary housing (Lerithea Rolan, et al. v. Atlantic Richfield Co., et al., No. 16-cv-357, N.D. Ind., 2019 U.S. Dist. LEXIS 216744).
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December 19, 2019
South Carolina Panel: No Coverage Owed To Company Successor Under Policies
CHARLESTON, S.C. — The South Carolina Court of Appeals on Dec. 18 affirmed a trial court’s dismissal of a corporate successor’s claims against a number of insurers, agreeing with the trial court’s finding that the successor has no rights under the predecessor’s policies because the policies were expired when the new company was purchased and there was execution of an assignment of rights to the insurance policies (PCS Nitrogen Inc. v. Continental Casualty Co., et al., No. 5699, S.C. App.).
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December 19, 2019
Judge Preliminarily Approves $8.5M Settlement Between Class, U.S. Steel
PITTSBURGH — A state court judge in Pennsylvania on Dec. 4 preliminarily approved an $8.5 million settlement between USX Co., formerly known as U.S. Steel Corp., and a class of residents who complained about odors from emissions discharged from the company’s Clairton Coke Works facility (Cindy Ross, et al. v. USX Co., No. G.D. 17-008663, Pa. Comm. Pls., Allegheny Co.).
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December 18, 2019
6th Circuit Reinstates Clean Water Act Suit Over Pesticide Use
CINCINNATI — A Sixth Circuit U.S. Court of Appeals panel on Dec. 17 reinstated a man’s citizen suit accusing a local sanitary district of violating the Clean Water Act (CWA) by failing to create a management plan for discharges of pesticide used to control mosquitoes, holding that his notice of intent to sue was sufficient because it listed the date of violation as the month the district’s National Pollutant Discharge Elimination System (NPDES) permit became effective (Matt Cooper v. Toledo Area Sanitary District, No. 19-3216, 6th Cir., 2019 U.S. App. LEXIS 37235).
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December 17, 2019
Fishing Boat Owner, Operator To Pay $1M Over Oily Bilge Water Discharges
BOSTON — The company that operates the F/V Enterprise and F/V Pacific Capes fishing vessels and the company that owns them pleaded guilty on Dec. 16 in federal court in Massachusetts to two counts of violating the Clean Water Act for negligently discharging oily bilge water into waterways of the United States and agreed to pay $1 million as a civil penalty (United States v. Sea Harvest Inc., et al., No. 19cr10400, D. Mass.).
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December 17, 2019
Judge Denies Navy’s Stay Request Pending Hazardous Substance Determination
PHILADELPHIA — The U.S. Department of the Navy’s request for a six-month stay of a consolidated lawsuit pending a determination from the federal government and the commonwealth of Pennsylvania as to whether perfluorooctane sulfonate (PFOS) and pefluorooctanic acid (PFOA) are hazardous substances was denied by a federal judge in Pennsylvania on Dec. 16 after he found that the interests of the plaintiffs outweigh those of the Navy (Kristen Giovanni, et al. v. U.S. Department of the Navy, No. 16-4873, Dorothy Palmer, et al. v. U.S. Department of the Navy, No. 17-765, E.D. Pa., 2019 U.S. Dist. LEXIS 215446).
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December 16, 2019
Judge Overrules Paper Company’s Objections To Summary Judgment Rulings
DAYTON, Ohio — A federal judge in Ohio on Dec.12 overruled International Paper Co.’s (IPC) objections to a March 25 ruling that denied its motion for summary judgment on liability in a Comprehensive Environmental Response, Compensation, and Liability Act lawsuit, finding that genuine disputes exist as to whether any spills of hazardous substances occurred while its predecessor operated a paper mill (Garrett Day LLC v. International Paper Co., et al., No. 15-cv-36, S.D. Ohio, 2019 U.S. Dist. LEXIS 214638).
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December 12, 2019
Refinery To Pay $500,000 For Failing To Monitor Flare Emissions
SACRAMENTO, Calif. — A refinery agreed to pay a $500,000 civil penalty for violating the Clean Air Act (CAA) when failing to monitor flare emissions and violating the Emergency Planning and Community Right-to-Know Act (EPCRA) when failing to report the amount of toxic chemicals it releases into the environment, according to a consent decree filed Dec. 9 in a federal court in California (United States, et al. v. Kern Oil & Refining Co., No. 19-cv-2046, E.D. Calif.).
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December 11, 2019
Justice Rules In Favor Of Exxon In New York AG’s Climate Change Securities Suit
NEW YORK — The Office of the Attorney General (AG) of New York failed to sufficiently plead that Exxon Mobil Corp. engaged in a years-long scheme to misrepresent the risk of climate change regulations to investors in violation of the Martin Act and other New York law, a New York justice ruled Dec. 10 (People of the State of New York v. Exxon Mobil Corp., No. 452044/2018, N.Y. Sup., New York Co.).
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December 10, 2019
Pennsylvania Agency Shuts Down Hemp Drying Facility Over Odor Complaints
PITTSBURGH — The Pennsylvania Department of Environmental Protection (DEP) on Nov. 27 issued a cease-and-desist order to a hemp drying facility after finding that odors from the site were violating the Air Pollution Control Act.
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December 10, 2019
6-Year Delay In Notice Bars Coverage For Underlying Contamination Suit
PEORIA, Ill. — An Illinois federal judge on Dec. 5 granted an insurer’s motion for judgment on the pleadings after determining that no coverage is afforded for an underlying environmental contamination suit arising out of the insured’s mining operation because the insured’s six-year delay in providing the insurer with notice of the underlying suit bars coverage (Rockhill Insurance Co. v. Carri Scharf Materials Co., No. 18-1380, C.D. Ill., 2019 U.S. Dist. LEXIS 209581).
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December 05, 2019
Federal Judge Denies Insurers’ Motions To Intervene In Contamination Suit
SACRAMENTO, Calif. — A California federal judge on Dec. 3 denied motions to intervene by a number of insurers in a dispute over liability for groundwater contamination under the Comprehensive Environmental Response, Compensation, and Liability Act after determining that the insurers failed to show good cause for intervening in the suit (California Department of Toxic Substances Control, et al. v. Jim Dobbas Inc., et al., No. 14-0595, E.D. Calif., 2019 U.S. Dist. LEXIS 209377).
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December 04, 2019
LLC’s Former Managing Member Can Be Liable Under CERCLA, Judge Rules
COLUMBUS, Ohio — A federal judge in Ohio on Nov. 13 refused to dismiss claims under the Comprehensive Environmental Response, Compensation, and Liability Act brought against a former managing member of a limited liability company that owned a property where an alleged sham electronic waste recycling center was in operation, finding that there is sufficient evidence to warrant piercing of the corporate veil (Garrison Southfield Park LLC v. Closed Loop Refining & Recovery Inc., et al., No. 17-cv-783, S.D. Ohio, 2019 U.S. Dist. LEXIS 196880).
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December 03, 2019
Parties Debate Status Of Superfund Site Landowners During High Court Arguments
WASHINGTON, D.C. — Arguments before the U.S. Supreme Court on Dec. 3 in a suit over the cleanup of contamination at a Superfund site in Montana focused more on whether landowners are potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that must obtain approval from the U.S. Environmental Protection Agency before engaging in any remedial activities than on whether their claims are preempted by the statute (Atlantic Richfield Co. v. Gregory Christian, et al., No. 17-1498, U.S. Sup.).
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December 03, 2019
Exxon Removes Climate Change Misrepresentation Lawsuit To Federal Court
BOSTON — Removal of a lawsuit brought by Massachusetts Attorney General Maura Healey against Exxon Mobil Corp. for alleged violations of the state’s consumer protection law based on its misrepresentations to consumers and investors concealing the risks of fossil fuel-driven climate change to Exxon’s business is warranted because although Healey’s claims are brought under state law, the complaint actually states claims that deal with federal law, Exxon argues in a Nov. 29 removal notice filed in Massachusetts federal court (Commonwealth of Massachusetts v. Exxon Mobil Corp., No. 19-12430, D. Mass.).
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December 03, 2019
Panel Says Prior Property Owner Can Be Ordered To Cleanup Contamination
SAN FRANCISCO — A California appeals court panel on Nov. 27 reversed a ruling that a former property owner could not be ordered to remediate contamination caused by a tenant that operated a dry cleaning operation, finding that the landowner knew that chemicals used at the site were hazardous and that its liability was not discharged during bankruptcy proceedings (United Artists Theatre Circuit Inc. v. Regional Water Quality Control Board, San Francisco Region, et al., No. A152988, Calif. App., 1st Dist., 5th Div., 2019 Cal. App. LEXIS 1198).
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December 03, 2019
ExxonMobil Moves To Confirm $25M Arbitration Award Against Insurer
NEW YORK — An insured on Nov. 21 filed a motion to confirm a $25 million arbitration award entered against an excess liability insurer and to award more than $6 million in prejudgment interest in an environmental contamination coverage dispute, arguing that confirmation of the award is warranted because the excess insurer forfeited any right to contest the award (ExxonMobil Oil Corp. v. TIG Insurance Co., No. 16-9527, S.D. N.Y.).
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November 27, 2019
Judge Denies Dismissal Of Groundwater Case, Says Federal Claim Is Valid
BOSTON — A federal judge in Massachusetts on Nov. 26 denied a motion to dismiss a case brought by an environmental advocacy group that sued a beach club for allegedly contaminating local groundwater, concluding that the plaintiffs adequately stated a claim under federal law for contributing to disposal of hazardous waste that “may present an imminent and substantial endangerment to health and the environment” (Conservation Law Foundation Inc. v. Longwood Venues & Destinations Inc., et al., No. 19-cv-11672, D. Mass., 2019 U.S. Dist. LEXIS 205273).
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November 27, 2019
Residents’ Proposed Class Over Contamination Cannot Be Certified, Judge Rules
FORT WAYNE, Ind. — A federal judge in Indiana on Nov. 18 denied certification of a proposed class of residents in Andrews, Ind., who complain that their properties and the town’s drinking water are contaminated as a result of the operations of two businesses in the middle of town, holding that the claims among class members lack typicality and that a class action is not the best vehicle to advance resolution of the lead plaintiffs’ claims (Opal Millman, et al. v. United Technologies Corp., et al., No. 16-CV-312-HAB, N.D. Ind., 2019 U.S. Dist. LEXIS 199595).