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Mealey's Pollution Liability

  • September 18, 2020

    Cleanup Costs At Former Metal Plating Site Not Divisible, Judge Rules

    SACRAMENTO, Calif. — A federal judge in California on Sept. 16 overruled arguments from defendants in a Comprehensive Environmental Response, Compensation, and Liability Act lawsuit that liability for contamination at a former metal plating site is divisible, holding that the defendants were unable to show that the contamination is capable of apportionment and that they did not establish that there is a reasonable basis by which to determine their contribution to the overall harm (West Sacramento v. R&L Business Management, et al., No. 18-cv-0900, E.D. Calif., 2020 U.S. Dist. LEXIS 169873).

  • September 17, 2020

    10th Circuit:  CERCLA Defendants Should Complete EPA's Records Request

    DENVER — A 10th Circuit U.S. Court of Appeals panel on Sept. 16 affirmed a federal judge in Utah's ruling awarding partial summary judgment to the government and entering an injunction requiring defendant companies in a Comprehensive Environmental Response, Compensation, and Liability Act lawsuit to provide complete responses to the U.S. Environmental Protection Agency's requests for information about their corporate histories (United States v. United Park City Mines Co., et al., No. 18-4110, 10th Cir., 2020 U.S. App. LEXIS 29445).

  • September 16, 2020

    9th Circuit: Full Amount Of EPA Settlement Not Subject To CERCLA Contribution

    SEATTLE — A Ninth Circuit U.S. Court of Appeals panel on Sept. 14 vacated in part a ruling by a federal judge in Montana ordering Atlantic Richfield Co. LLC to pay 25 percent of a $111.4 million settlement between the U.S. Environmental Protection Agency and the former owner and operator of a lead smelting facility, finding that the full amount of the settlement is not automatically subject to contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (ASARCO LLC v. Atlantic Richfield Co. LLC, et al., No. 18-35934, 9th Cir., 2020 U.S. App. LEXIS 29048).

  • September 15, 2020

    Minnesota Seeks Remand Of Climate Change Suit, Says No Federal Questions Raised

    MINNEAPOLIS — The state of Minnesota on Sept. 10 moved in federal court in Minnesota seeking remand of its suit accusing the American Petroleum Institute (API) and a number of energy companies of misrepresenting the risk of climate change associated with the use of fossil fuels, arguing that a "unanimous tide of decisions" has found that similar lawsuits do not involve federal questions (Minnesota v. American Petroleum Institute, et al., No. 20-1636, D. Minn.).

  • September 14, 2020

    Judge Finds Company Liable Under CERCLA As Successor, Defers Apportionment Ruling

    NEWARK, N.J. — A federal judge in New Jersey on Sept. 11 granted in part a motion for partial summary judgment filed by a group of 66 defendants accused of contributing to contamination in the lower Passaic River and at the Diamond Alkali Superfund site, finding that while the plaintiff is liable under the Comprehensive Environmental Response, Compensation, and Liability Act as the successor to a company that manufactured herbicides and pesticides at the property, a ruling on apportionment cannot be made until it is determined if another company is also subject to successor liability (Occidental Chemical Corp. v. 21st Century Fox America, et al., No. 18-11273, D. N.J.).

  • September 09, 2020

    Seattle Objects To Approval Of PCB Settlement, Cites Definition, Provision

    LOS ANGELES — The city of Seattle filed an objection in federal court in California on Aug. 27 to a proposed $820 million settlement between municipalities and the makers of polychlorinated biphenyls (PCBs) over contamination to waterways, arguing that the approval of the settlement agreement's definition of released claims and a contribution protection provision would impair the city's rights, as well as "the rights of untold numbers of other persons," because it releases claims "related to the manufacture, sale, testing, disposal, release, marketing or management" of the chemical (Long Beach v. Monsanto Co., et al., No. 16-3493, C.D. Calif.).

  • September 09, 2020

    Judge Excludes Experts' New Opinions Regarding Contamination In Pallets

    DAYTON, Ohio — A federal judge in Ohio on Aug. 31 excluded newly submitted expert testimony that pallets burned in an air curtain destructor (ACD) owned and operated by an alleged predecessor to Waste Management of Ohio Inc. (WMO) at the South Dayton Dump and Landfill contained hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, finding that the opinions were filed after the close of expert discovery and that the conversion of WMO's motion to dismiss to a motion for summary judgment did not reopen discovery (Hobart Corporation, et al. v. The Dayton Power & Light Co., et al., No. 13-cv-115, S.D. Ohio, 2020 U.S. Dist. LEXIS 157993).

  • September 09, 2020

    3rd Circuit: Settlement With State Agency Does Not Bar CERCLA Contribution Claim

    PHILADELPHIA — A Third Circuit U.S. Court of Appeals panel on Sept. 8 found that the former operator of a landfill site that handled the disposal of hazardous substances can face a claim for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act brought by a company that transported waste to the site because a settlement between the operator and the New Jersey Department of Environmental Protection (NJDEP) did not resolve potential liability to the federal government for cleanup at the property (N.J. Department of Environmental Protection, et al. v. American Thermoplastics Corp., et al., Nos. 18-2865, 19-2243, 3rd Cir., 2020 U.S. App. LEXIS 28356).

  • September 08, 2020

    Alaska Native Can Proceed With 1 Claim In PCB Pollution Suit, 9th Circuit Says

    ANCHORAGE, Alaska — The United States is mostly shielded by the discretionary function exception in the Federal Tort Claims Act (FTCA) from an Alaska Native's attempts to hold it liable for contamination of her property from toxic waste left at an abandoned Air Force radar station, though the government must face her claim that its inaction after discovering the contamination makes it liable for damages, the Ninth Circuit U.S. Court of Appeals decided Sept. 4 (Emily Nanouk v. United States, No. 19-35116, 9th Cir., 2020 U.S. App. LEXIS 28216).

  • September 08, 2020

    Arbitration Panel Did Not Properly Interpret Pollution Exclusion, Insurer Maintains

    NEW YORK — A New York federal judge erred in granting 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 constitutes a manifest disregard of the law, an insurer contends in a Sept. 2 appellant brief filed in the Second Circuit U.S. Court of Appeals (HDI Global SE, f/k/a HDI Gerling Industrie Versicherung AG v. Phillips 66 Co., No. 20-1743, 2nd Cir.).

  • September 04, 2020

    Judge Says 'Very Serious' CWA Violations Occurred During Levee Construction

    SACRAMENTO, Calif. — A federal judge in California on Sept. 1 entered a declaratory judgment against a man and his company after finding that their construction of a levee on Port Buckler Island, located in the San Francisco Bay, resulted in "very serious" violations of the Clean Water Act (CWA) because they dumped thousands of cubic yards of soil on the island's tidal channels and marsh, which eliminated tidal exchange, harmed aquatic habitat and impacted water quality (United States v. John Sweeney, et al., No. 17-112, E.D. Calif.).

  • September 04, 2020

    Oil Spill MDL Judge Dismisses 4 Plaintiffs' Claims Over Cleanup Injuries

    NEW ORLEANS — The federal judge in Louisiana presiding over litigation stemming from the oil spill in the Gulf of Mexico that occurred following the April 20, 2010, explosion of the Deepwater Horizon oil rig on Sept. 2 dismissed with prejudice the claims of four plaintiffs who claim that they sustained injuries while helping clean up the spill, finding that their suits were barred by the terms of a medical benefits settlement agreement that was approved in January 2013 and found that the claims of seven individuals should not be dismissed because genuine disputes exist as to whether they opted out or if they were cleanup workers (In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL 2179, E.D. La., 2020 U.S. Dist. LEXIS 160076).

  • September 04, 2020

    New Jersey City Sues Fossil Fuel Sellers Over Climate Change

    JERSEY CITY, N.J. — The city of Hoboken, N.J., sued six oil companies and their subsidiaries, as well as the American Petroleum Institute (API), in New Jersey state court on Sept. 2, arguing that the defendants withheld from the public the risk of climate change associated with the burning of fossil fuels in violation of the state's consumer protection law and that weather events caused by global warming are causing the municipality to incur increased costs to deal with power outages and flooding (Hoboken v. Exxon Mobil Corp., et al., No. L-317920, N.J. Super., Hudson Co.).

  • September 03, 2020

    No Evidence That Pollution Liability Insurer Breached Contract, Texas Panel Says

    DALLAS — The Fifth District Texas Court of Appeals on Aug. 28 affirmed a trial court's judgment in favor of a pollution liability insurer on breach of contract claims because there is no evidence that the insurer breached the terms of its policy in determining coverage owed to the insured for a gas leak; however, the panel reversed the trial court's judgment on the extracontractual claims as they were not addressed in the insurer's motions for summary judgment (Orange Cup Drive In LLC v. Mid-Continent Casualty Co., No. 05-1900014-CV, Texas App., 5th Dist., 2020 Tex. App. LEXIS 6993).

  • August 28, 2020

    9th Circuit Agrees To Stay Remand Of Climate Change Suit Pending High Court Review

    SAN FRANCISCO — A Ninth Circuit U.S. Court of Appeals panel on Aug. 25 granted Chevron Corp.'s motion to stay the panel's May 26 ruling to remand four lawsuits brought by California municipalities over infrastructure damages caused by climate change as a result of burning fossil fuels until the U.S. Supreme Court decides if it wants to review the decision (San Mateo v. Chevron Corp., et al., No. 18-5499, Imperial Beach v. Chevron Corp., et al., No. 18-15502, Marin v. Chevron Corp., et al., No. 18-15503, Santa Cruz v. Chevron Corp., et al., No. 18-16376, 9th Cir.).

  • August 27, 2020

    GE Not Liable As Operator Of Railcars, Contaminated Yards, Judge Rules

    CINCINNATI — A federal judge in Ohio on Aug. 25 ruled that General Electric Co. (GE) could not be found liable under the Comprehensive Environmental Response, Compensation, and Liability Act as a former operator of passenger railcars that used transformers containing polychlorinated biphenyls (PCBs) or yards in Delaware, New York and Pennsylvania where they were housed that later became contaminated from spills of the chemical because GE employees at the yards performed only warranty work on the railcars (American Premier Underwriters Inc. v. General Electric Co., No. 05-437, S.D. Ohio, 2020 U.S. Dist. LEXIS 154296).

  • August 25, 2020

    Insured Says Pollution Exclusion Cannot Be Used To Deny Coverage

    SAN DIEGO — A commercial property insurance policy's pollution exclusion and virus or bacteria exclusion do not bar coverage for business interruption and extra expense costs incurred as a result of the COVID-19 stay-at-home orders issued by the state of California, an insured restaurant owner says in an Aug. 20 complaint filed against an insurer in California federal court (JAJ Group Inc., et al. v. Liberty Mutual Insurance Co., No. 20-1620, S.D. Calif.).

  • August 24, 2020

    Landowner's Suit Over Concrete Wash Cleanup Fails To State Claims, Judge Says

    SACRAMENTO, Calif. — A landowner's lawsuit seeking contribution and cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act and its state law equivalent was dismissed without prejudice by a federal judge in California on Aug. 19 after the judge found that the allegations that a former owner should reimburse it for remediation of concrete and concrete washout, which contains the hazardous substance chromium, did not support the causes of action (Woodyard LLC v. Syar Industries Inc., et al., No. 19-2495, E.D. Calif., 2020 U.S. Dist. LEXIS 151405).

  • August 21, 2020

    9th Circuit Affirms Ruling In Favor Of State In Workers' Compensation Dispute

    SEATTLE — A Ninth Circuit U.S. Court of Appeals panel on Aug. 19 upheld a ruling awarding summary judgment to the state of Washington, finding that an amendment to the state's workers' compensation law that allowed U.S. Department of Energy contractors and subcontractors who performed remediation work at the Hanford Nuclear Reservation, a decommissioned federal nuclear production site, to pursue state workers' compensation claims, did not violate the doctrine of intergovernmental immunity (United States v. Washington, et al., No. 19-35673, 9th Cir., 2020 U.S. App. LEXIS 26308).

  • August 20, 2020

    Government Ordered To Pay Exxon Mobil $20.3M For Cleanup At Avgas Refineries

    HOUSTON — A federal judge in Texas on Aug. 19 found that the federal government should pay $20.3 million to Exxon Mobil Corp. for cleanup costs the company incurred in remediating contamination at two refineries where aviation gas (avgas) was produced during World War II and the Korean War after allocating the parties' liability for cleanup costs following a two-week bench trial (Exxon Mobil Corp. v. United States, Nos. 10-2386, 11-1814, S.D. Texas, 2020 U.S. Dist. LEXIS 149915).