Mealey's Pollution Liability : Mealey's : Legal News & Analysis

Mealey's Pollution Liability

December 06, 2023
5th Circuit: EPA’s Denial Of CAA Program Exemptions Was Impermissibly Retroactive

NEW ORLEANS — In denying several petitions for exemptions to a Clean Air Act (CAA) program filed by small refineries, the U.S. Environmental Protection Agency used a new approach that was impermissibly retroactive to the petitions that were filed years ago because the refineries justifiably relied upon the agency’s previous approach and there were no benefits to retroactively applying the new approach, the majority of a Fifth Circuit U.S. Court of Appeals panel found in granting a group of refineries’ petitions for review.
December 06, 2023
In Issuing Farm Permits, N.C. Agency Was Not Required To Perform Certain Duties

RALEIGH, N.C. — A trial court did not err in finding that the North Carolina Department of Environmental Quality (DEQ) was not required to perform certain duties in approving animal waste management system permits to four industrial hog farms because the duties, identified by two environmental groups, are not mandatory under the statutes governing the permitting process at issue, a North Carolina appellate court panel found Dec. 5 in affirming the trial court’s judgment.
December 04, 2023
Auto Policy’s Pollution Exclusion Bars Coverage For Contaminated Wheat Delivery

PIERRE, S.D. — No coverage is owed to insureds under an auto policy for an underlying suit arising out of the delivery of contaminated wheat because the auto policy’s pollution exclusion bars coverage for contaminants, the South Dakota Supreme Court said in affirming a trial court’s ruling in favor of the auto insurer.
December 01, 2023
3rd Circuit: EPA Erred In Requiring Virgin Islands Refinery To Obtain Permit

PHILADELPHIA — The U.S. Environmental Protection Agency exceeded the limits of the Clean Air Act (CAA) by requiring the new owner of an existing petroleum refinery in the Virgin Islands to obtain a permit under the CAA’s new source review (NSR) program because the refinery was neither constructed nor modified after 1977 and is therefore not subject to the program, a Third Circuit U.S. Court of Appeals panel found in granting the owner’s petition for review.
December 01, 2023
Louisiana Panel: Property Owner Was Assigned Rights To Sue For Environmental Damage

LAKES CHARLES, La. — A property owner that purchased land that was contaminated before the sale is not barred by the subsequent purchaser doctrine from seeking damages for alleged environmental contamination caused by historical gas and oil exploration activities because the owner was assigned the right to sue by the previous owners of the property, a Louisiana appellate panel found in denying two supervisory writs filed by successors to the oil and gas companies that purportedly damaged the property.
December 01, 2023
California Federal Judge Dismisses RCRA And CWA Claims With Leave To Amend

LOS ANGELES — In partly granting two motions to dismiss, a California federal judge found that an environmental group failed to adequately state some of its Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) claims arising from alleged discharges of polluted stormwater at the Port of Long Beach but granted the group leave to amend its claims because amendment would not be futile in this instance.
November 30, 2023
Ohio, DuPont Reach $110M Deal To Resolve C8 Pollution From Washington Works Plant

COLUMBUS, Ohio — Ohio Gov. Mike DeWine and E.I. du Pont de Nemours & Co. on Nov. 29 separately announced that they reached a $110 million settlement of a perfluorooctanoic acid (PFOA), also called C8, groundwater contamination case brought by the state related to pollution from DuPont’s Washington Works Plant. The settlement establishes an environmental restoration fund that will address the pollution from the plant, as well as damages caused by firefighting foam that contains PFOA.
November 29, 2023
9th Circuit Affirms Remand Of Climate Change Claims Against Oil Companies

SAN FRANCISCO — State law public nuisance claims brought by two California municipalities that allege that five oil companies accelerated the effects of climate change by producing and promoting fossil fuel products should be remanded because removal jurisdiction is not supported by federal officer removal jurisdiction or an exception to the well-pleaded complaint rule, a Ninth Circuit U.S. Court of Appeals panel found in affirming a trial court’s decision.
November 28, 2023
No Coverage Owed For COVID-19 Losses Under Pollution Policy, Court Says

NEW YORK — No coverage is owed for business interruption losses caused by the coronavirus because the virus is not a pollution condition and does not constitute an indoor environmental condition as defined in the pollution and remediation policy, a New York appellate panel said in affirming a trial court’s ruling.
November 27, 2023
Louisiana Federal Judge Dismisses Oil Company From Abandoned Gas Well Dispute

MONROE, La. — After approving a settlement agreement between an oil company and a property owner that resolved allegations that the oil company contributed to environmental damage on the property by abandoning oil wells, a Louisiana federal judge dismissed the claims against the company with prejudice.
November 22, 2023
Norfolk Southern: Rail Car Owners Liable For Chemical Spill From Train Derailment

YOUNGSTOWN, Ohio — Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) filed a brief in Ohio federal court arguing that it should deny a motion to dismiss the third-party complaint Norfolk Southern has filed against rail car owners in relation to the train derailment in East Palestine, Ohio. Norfolk Southern contends that it is a common carrier and is entitled to seek cost recovery from rail car owners under federal law that imposes liability on rail car owners when their rail cars dispose hazardous substances into the environment.
November 20, 2023
Insurer’s Environmental Coverage Suit Stayed Until Underlying Suit Is Resolved

SANTA ANA, Calif. — A California state judge denied a demurrer to an insurer’s complaint but granted a motion to stay the insurer’s declaratory judgment suit until after an underlying environmental contamination suit against the successor company to an insured is resolved because resolution of the underlying suit will aid the court in determining whether the insurer’s pollution exclusion applies as a bar to coverage for the underlying suit.
November 17, 2023
In Clash Over Alaska City’s Air Quality, Federal Judge Approves Consent Decree

SEATTLE — A Washington federal judge on Nov. 17 entered a consent decree proposed by three citizen groups and the U.S. Environmental Protection Agency to resolve a dispute over whether the agency violated the Clean Air Act (CAA) by failing to approve or disapprove a state implementation plan (SIP) to remediate air pollution in the Alaska borough of Fairbanks North Star.
November 16, 2023
6th Circuit: Challenges To Clean Air Act Plan Belong In D.C. Circuit

CINCINNATI — Four petitions for judicial review of a Clean Air Act (CAA) plan governing ambient air quality for 23 states must be heard in the District of Columbia Circuit U.S. Court of Appeals because the plan is nationally applicable and is based on a U.S. Environmental Protection Agency determination of nationwide scope, a Sixth Circuit U.S. Court of Appeals panel found in granting the EPA’s motions to transfer the petitions.
November 16, 2023
5th Circuit: Texas Agency Erred In Approving Permit For Natural Gas Plant

NEW ORLEANS — The Texas Commission on Environmental Quality (TCEQ) committed an error of law and acted arbitrarily and capriciously by failing to adequately explain why it approved a permit for a natural gas plant that contained less stringent emissions limits than those adopted in a permit for a separate plant that will use the same equipment, a Fifth Circuit U.S. Court of Appeals panel found in vacating the state agency’s permitting decision.
November 14, 2023
Federal Judge Refuses To Consolidate 2 CAA Cases About Incinerator Standards

WASHINGTON, D.C. — In denying a motion filed by a national trade organization to consolidate two cases regarding the U.S. Environmental Protection Agency’s alleged failure to review performance standards for certain solid-waste incinerators under the Clean Air Act (CAA), a District of Columbia federal judge said the motion amounted to a collateral attack of a proposed consent decree filed in the other case.
November 10, 2023
Magistrate Judge Clarifies Order Regarding Third-Party Complaints In CERCLA Case

MILWAUKEE — A Wisconsin federal magistrate judge clarified that in granting two former operators of a contaminated manufacturing site leave to file third-party claims under the Comprehensive Environmental Response, Compensation and Liability Act against the parent company of the plaintiff real estate developer, the court did not find that the parent company is a real party in interest.
November 07, 2023
W.Va. Federal Judge Grants Motion For Sanctions In Coal Mining Pollution Clash

HUNGTINGTON, W.Va. — Two property owners who brought claims arising from alleged pollution caused by coal mining activities violated their historic agreement with the owner of a company that mined the property by filing a motion for partial summary judgment against him after saying they would not pursue his personal assets, a West Virginia federal judge found in granting the company owner’s motion for sanctions.
November 07, 2023
In Climate Change Dispute, Hawaii Supreme Court Affirms Denial Of Motions

HONOLULU — A trial court properly denied two motions to dismiss filed by a group of oil and gas companies that are alleged to have caused damage to Honolulu by knowingly concealing the effect their fossil fuel products would have on global climate change, the majority of the Hawaii Supreme Court held in affirming the trial court’s judgment.
November 06, 2023
No Coverage For Underlying Suit Seeking Damages From Nitric Oxide Plume, Panel Says

DENVER — No coverage is owed to an insured for an underlying suit alleging damages caused by the release of a nitric oxide plume from an insured’s manufacturing plant because a pollution endorsement, which provides coverage for pollution-related bodily injury claims, applies only to claims that have a connection to Vermont, the 10th Circuit U.S. Court of Appeals said in affirming a district court’s ruling in favor of the insurer.
November 06, 2023
Insured Municipality Files Suit, Says Coverage Owed For Remediation Costs

TRENTON, N.J. — A premises pollution liability insurer breached its contract and acted in bad faith by denying coverage for environmental contamination remediation costs incurred by an insured municipality because the policy obligates the insurer to provide coverage for the remediation costs, the insured says in a complaint filed in New Jersey state court.
November 06, 2023
La. Federal Judge Denies Summary Judgment Motion In Creosote Contamination Row

LAKE CHARLES, La. — A railroad company is not entitled to summary judgment on claims that it contributed to contamination of a property because there are genuine issues of fact regarding whether it was aware of the contamination and whether creosote-soaked wooden poles were loaded onto its rail cars, a Louisiana federal judge found on Nov. 3 in denying the company’s motion for summary judgment.
November 03, 2023
Ohio High Court Majority Affirms Choice-Of-Law Analysis For Bad Faith Claim

COLUMBUS, Ohio — An Ohio appellate court applied the correct factors in a choice-of-law analysis for a bad faith claim in an environmental contamination coverage suit because the bad faith claim sounds in tort rather than contract, the majority of the Ohio Supreme Court said in affirming the appellate court’s ruling.
November 03, 2023
Missouri Federal Judge Remands Claims Arising From Contaminated Drinking Supply

ST. LOUIS — An electrical company alleged to have contaminated a city’s drinking water by using hazardous chemicals to clean one of its substations failed to show that the state law claims arising from the contamination raised any issues of federal law, a Missouri federal judge found Nov. 2 in remanding the case to state court.
November 02, 2023
Montana Federal Judge Says Environmental Group Lacks Standing On Nuisance Claims

BUTTE, Mont. — An environmental group that filed a second lawsuit against a Montana resort alleging that the resort violated the Clean Water Act (CWA) by discharging nitrogen into the Gallatin River without a National Pollutant Discharge Elimination System (NPDES) permit failed to show that it has standing to bring its civil and criminal nuisance claims, a Montana federal judge ruled in partly granting the resort’s motion to dismiss.