Mealey's Pollution Liability
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January 18, 2019
Divided 6th Circuit Denies Request For En Banc Rehearing Over Discharges
CINCINNATI — A divided Sixth Circuit U.S. Court of Appeals on Jan. 17 refused a petition filed by two environmental groups seeking an en banc rehearing of a ruling that calls for the dismissal of their Clean Water Act lawsuit against Tennessee Valley Authority (TVA) on the ground that it did not violate the statute when coal ash discharges from its wastewater treatment system reached a navigable waterway through groundwater (Tennessee Clean Water Network, et al. v. Tennessee Valley Authority, No. 17-6155, 6th Cir., 2019 U.S. App. LEXIS 1601).
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January 18, 2019
5th Circuit Panel Upholds Denial Of Review Of Warehouse’s Settlement Award
NEW ORLEANS — A federal judge in Louisiana did not err when refusing to conduct a discretionary review of a company’s appeal of a $3,907.05 settlement award it received through the Deepwater Horizon Economic and Property Damages Class Action Settlement Agreement, a Fifth Circuit U.S. Court of Appeals panel ruled Jan. 16, holding that a Court Supervised Settlement Program (CSSP) appeals panel did not misapply the terms of the settlement (Claimant ID 100303892 v. BP Exploration & Production Inc., et al., No. 18-30792, 5th Cir., 2019 U.S. App. LEXIS 1410).
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January 17, 2019
Attorneys For GE, Residents Debate Groundwater Remediation At 7th Circuit
CHICAGO — The Seventh Circuit U.S. Court of Appeals on Jan. 15 heard oral arguments in a groundwater contamination lawsuit in which residents and the owner of a golf course contend that federal law requires General Electric Co. to abate 500 million gallons of water tainted with organic solvents (Martha Kai Conway, et al. v. General Electric Company, No. 18-1522, 7th Cir.).
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January 15, 2019
Magistrate Judge Hits Reset Button On Discovery Dispute In Cleanup Suit
SAN DIEGO — A federal judge in California on Jan. 11 enacted an “Operation Reset” in a dispute involving a dairy’s request for records involving communications between the owner of a manmade lake and a number of public agency defendants (PADs) over contamination at the site, ruling that the counsel for the parties should meet and confer about documents that have not been turned over pursuant to the dairy’s motion to compel and any privilege that may be associated with the documents (Citizens Development Corp. v. County of San Diego, et al., No. 12cv334, S.D. Calif., 2019 U.S. Dist. LEXIS 5713).
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January 10, 2019
Groups: High Court Review Needed To Settle Circuit Court Split In Pipeline Dispute
WASHINGTON, D.C. — Environmental groups on Jan. 9 filed a petition for a writ of certiorari with the U.S. Supreme Court, contending that a lower court “discarded Pennsylvania’s statutory definition of finality, and instead inserted its own federal standard of finality” when it ruled that federal law preempted the state review process for the construction of a pipeline that would carry hydraulically fractured gas through several counties in the state (Delaware Riverkeeper Network, et al. v. Secretary of Pennsylvania Department of Environmental Protection, et al., No. N/A, U.S. Sup.).
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January 10, 2019
Nonprofit’s $1.5M Oil Spill Settlement Award Upheld By 5th Circuit
NEW ORLEANS — A federal judge in Louisiana did not err when refusing BP Exploration & Production Inc.’s request to conduct a discretionary review of a Court Supervised Settlement Program (CSSP) claims administrator’s decision to award nearly $1.5 million to a nonprofit that operates group homes for teenagers for damages following the oil spill in the Gulf of Mexico following the April 20, 2010, explosion of the Deepwater Horizon oil rig, a Fifth Circuit U.S. Court of Appeals panel ruled Jan. 9, holding that the claimant provided sufficient information to support the award (BP Exploration & Production Inc. v. Claimant ID 100333854, No. 18-30653, 5th Cir.).
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January 10, 2019
Divided 9th Circuit Panel Says It Will Review Climate Change Suit Rulings
SAN FRANCISCO — A 2-1 Ninth Circuit U.S. Court of Appeals panel on Dec. 26 said it would review rulings by a federal judge in Idaho that have kept alive a lawsuit brought by a number of youths that accuse the federal government of implementing policies that promote global warming and climate change, holding that review is warranted under Judicial and Judiciary Procedure, Title 28, Section 1292(b) (Kelsey Rose Juliana, et al. v. United States, No. 18-80176, 9th Cir.).
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January 10, 2019
Magistrate Judge Finds Experts’ Testimony Admissible In Suit Over Contamination
BUFFALO, N.Y. — A federal magistrate judge in New York on Dec. 27 denied cross-motions to exclude expert testimony filed by parties in a suit over the recovery of cleanup costs for groundwater contamination at a site that formerly housed a gasoline station operated by Atlantic Richfield Co., finding that the parties’ challenges to each other’s experts went to the weight of their testimony (51 Webster St. Inc. v. Atlantic Richfield Co., No. 16-CV-468-MJR, W.D. N.Y., 2018 U.S. Dist. LEXIS 217909).
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January 9, 2019
Verdict Ordering Union Pacific To Pay $5.6M For Cleanup Upheld
WILMINGTON, Del. — The Delaware Supreme Court on Jan. 7 found that a trial court judge’s instructions to a jury that had it determine what the reasonable response costs an environmental services company incurred in remediating a site in Wichita, Kan., and a reasonable amount Union Pacific Corp. should pay to reimburse the company were not misleading and affirmed its verdict requiring Union Pacific to pay $5.6 million (Union Pacific Corp. v. Clean Harbors Inc., No. 35, 2018, Del. Sup., 2019 Del. LEXIS 6).
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January 8, 2019
MTBE MDL Judge Refuses To Suggest Remand Of State’s Contamination Suit
NEW YORK — The federal judge in New York presiding over suits stemming from groundwater contamination caused by methyl tertiary butyl ether (MTBE) on Jan. 7 refused to suggest to the Judicial Panel on Multidistrict Litigation (JPMDL) that the Commonwealth of Pennsylvania’s action over groundwater contamination allegedly caused by the gasoline additive should be remanded, finding that no good cause exists (In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, MDL 1358, Commonwealth of Pennsylvania v. Exxon Mobil Corp., et al., No. 14 Civ. 6228, S.D. N.Y., 2019 U.S. Dist. LEXIS 2649)
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January 7, 2019
High Court Denies Petition Challenging State Attorney General’s Investigation
WASHINGTON, D.C. —The U.S. Supreme Court on Jan. 7 denied Exxon Mobile Corp’s petition for a writ of certiorari that sought review of a Massachusetts Judicial Supreme Court ruling allowing the state’s attorney general to investigate the company’s knowledge about the relationship between burning fossil fuels and climate change (Exxon Mobil Corp. v. Maura Healey, No. 18-311, U.S. Sup.).
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January 4, 2019
U.S. Solicitor General: Clean Water Act Case Warrants Review On Limited Question
WASHINGTON, D.C. — The U.S. solicitor general on Jan. 3 filed a brief in the U.S. Supreme Court arguing that review is needed in a consolidated groundwater contamination lawsuit to resolve a split among federal appellate courts concerning application of the Clean Water Act (CWA) regarding the discharge of pollutants into navigable water as well as into soil and groundwater (Kinder Morgan Energy, et al. v. Upstate Forever, et al., No. 18-268; County of Maui, Hawaii v. Hawaii Wildlife Fund, et al., No. 18-260, U.S. Sup.).
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January 4, 2019
Judge Approves $2.7M Settlement Over Train Derailment, Oil Spill
CHARLESTON, W.Va. — A federal judge in West Virginia on Jan. 3 approved a settlement that requires CSX Transportation Inc. to pay $2.2 million in civil penalties for violating the Clean Water Act and spend $500,000 on a supplemental environmental project to resolve an action over a February 2015 incident that involved the derailment of 27 railcars, some of which were carrying Bakken crude oil that spilled into the Kanawha River and Armstrong Creek (United States, et al. v. CXS Transportation Inc., No. 18-cv-01175, S.D. W.Va., 2019 U.S. Dist. 798).
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January 4, 2019
Insurer Has No Duty To Defend, Indemnify Insured For Contamination Claims
INDIANAPOLIS — An insurer has no duty to defend or indemnify its insured against claims arising out of environmental contamination because the contamination at issue was not caused by insured operations, the Indiana Court of Appeals said Dec. 20 in affirming summary judgment in favor of the insurer (City of Gary, Ind., et al. v. Auto-Owners Insurance Co., No. 18A-CT-68, Ind. App., 2018 Ind. App. LEXIS 485).
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January 3, 2019
Magistrate Judge Says Group, City Can Intervene In Clean Water Act Suit
HAMMOND, Ind. — A federal judge in Indiana on Dec. 13 found that allowing the city of Chicago and the Surfrider Foundation to intervene in a Clean Water Act (CWA) suit brought by the state of Indiana and federal government against U.S. Steel was appropriate because their participation in the suit during the public comment period of a proposed consent decree would not “unnecessarily complicate” the action (United States v. United States Steel Corp., No. 18-cv-127-JEM, N.D. Ind., 2018 U.S. Dist. LEXIS 210213).
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December 21, 2018
Judge Denies Parties’ Summary Judgment Motions In Suit Over Permit Compliance
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).
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December 19, 2018
Divided 5th Circuit Vacates Shrimping Company’s $2.5M Oil Spill Award
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).
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December 18, 2018
2nd Circuit Revives Sierra Club’s Clean Water Act Suit Against Debris Recycler
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).
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December 18, 2018
Judge Refuses To Limit, Exclude Experts’ Testimony In Clean Water Act Suit
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).
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December 17, 2018
No Coverage Owed For Environmental Cleanup Costs, Federal Judge Says
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).