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

Mealey's Pollution Liability

November 01, 2023
Creek’s Status Under CWA Doesn’t Affect Jurisdiction, California Federal Judge Says

SANTA ANA , Calif. — Whether the Temescal Creek, in which a recycling plant owner is alleged to have discharge contaminated stormwater, is a “water of the United States” for the purposes of the Clean Water Act (CWA) does not affect the court’s subject jurisdiction because that determination is an element of a claim under the law, not a threshold jurisdictional matter, a California federal judge found in denying the plant owner’s motion to dismiss.
October 31, 2023
5th Circuit: Mix Of Oil And Hazardous Substances Is Exclusively Covered By CERCLA

NEW ORLEANS — A group of companies is not entitled to monetary damages under the Oil Pollution Act (OPA) for the release of a mixture of oil and hazardous substances, as defined by the Comprehensive Environmental Response, Compensation and Liability Act, from a chemical storage facility because the OPA expressly excludes such mixtures from its definition of oil, a Fifth Circuit U.S. Court of Appeals panel found in affirming a trial court’s judgment.
October 30, 2023
In Clash Over Alaska City’s Air Quality, Parties Seek Approval Of Consent Decree

SEATTLE — Three citizen groups and the U.S. Environmental Protection Agency filed a joint motion to enter a proposed consent decree that would 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.
October 27, 2023
Wisconsin Federal Judge Grants Leave To File Third-Party Complaints In CERCLA Case

MILWAUKEE — A Wisconsin federal judge granted two former operators of a contaminated manufacturing site, which are being sued under the Comprehensive Environmental Response, Compensation and Liability Act, leave to filed third-party claims against the parent company of the plaintiff real estate developer because recent depositions and discovery documents show that the real estate developer has no employees and the parent company may be the real party in interest.
October 27, 2023
Judge Partially Denies Motion To Compel Documents In PCB Case Against Monsanto

CHICAGO — A federal magistrate judge in Illinois has partially granted and partially denied a motion by the state seeking to compel Monsanto Co. to produce documents in a lawsuit over alleged statewide contamination of waterways by polychlorinated biphenyls (PCBs). With regard to a request for documents related to third-party consultants, the judge ruled that the request is “overbroad, unduly burdensome and likely requests irrelevant information.”
October 24, 2023
California Federal Judge Dismisses Some Claims In Electronics Contamination Dispute

SANTA ANA, Calif. — In disposing of three motions to dismiss, a California federal judge found that claims brought under the Resource Conservation and Recovery Act (RCRA) by a property owner and the property’s occupant against several companies that are alleged to have contributed to environmental contamination at the site through electronics manufacturing are sufficiently pleaded but claims under California’s Hazardous Substance Account Act (HSAA) are barred by the three-year statute of limitations.
October 24, 2023
Mont. Federal Judge Awards Interlocutory Fees And Costs In Fire Retardant Dispute

MISSOULA, Mont. — A Montana federal judge on Oct. 23 partly granted an environmental group’s motion for attorney fees and costs because the group previously prevailed in showing that the U.S. Forest Service (USFS) violated the Clean Water Act (CWA) by aerially deploying fire retardant to fight wildfires without a National Pollution Discharge Elimination System (NPDES) permit.
October 23, 2023
Pa. Federal Judge: CERCLA Allows Multiple Cost Recovery Cases For Same Incident

PITTSBURGH — The Comprehensive Environmental Response, Compensation and Liability Act allows parties to file subsequent cases for cost recovery even though they arise from the same incident of environmental contamination if the plaintiff can show that it has incurred subsequent costs, a Pennsylvania federal judge found in partly granting a recycling company’s motion to dismiss CERCLA claims brought against it in a second case arising from an alleged mercury spill.
October 16, 2023
Supreme Court Grants Certiorari In 2nd Challenge To Chevron Deference

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 13 granted a petition for a writ of certiorari in a second case challenging the doctrine of Chevron deference and ordered that it be briefed on a schedule allowing argument “in tandem” with a pending case pertaining to the same issue, both of which involve challenges to regulations that require fishing vessels to pay federal monitors.
October 16, 2023
Judge: Construction Waste With Asbestos, Other Materials, Covered By CERCLA

CONCORD, N.H. — Building and construction waste containing arsenic, lead, selenium, polychlorinated biphenyls (PCBs) and asbestos qualifies as a hazardous substance under the Comprehensive Environmental Response, Compensation and Liability Act because those materials are specifically listed as such in the statute, a New Hampshire federal judge found Oct. 13 in partly granting a motion to dismiss filed by a municipality and a housing authority that are alleged to have contributed to contamination at a former landfill by dumping waste there.
October 16, 2023
W.Va. Mining Company Violated Clean Water Act By Operating Without Permits, Judge Says

CHARLESTON, W.Va. — A company violated the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMRCA) by operating mining sites while its National Pollutant Discharge Elimination System (NPDES) permit modifications were pending, a West Virginia federal judge found in partly granting motions for summary judgment filed by both the company and four environmental groups that brought the citizen suit against it.
October 13, 2023
Environmental Group Appeals Standing Determination In Idling Bus Emissions Dispute

BOSTON — An environmental group appealed to the First Circuit U.S. Court of Appeals a Massachusetts federal judge’s order that said the group failed to establish standing because it cannot show that the alleged injuries its members suffered are traceable to alleged state law violations carried out by three bus companies that allowed their buses to idle for too long.
October 13, 2023
Magistrate Denies Companies’ Motion To Dismiss PFAS Case, Says Claims Valid

PORTLAND, Maine — A federal magistrate judge in Maine has denied a motion to dismiss a per- and polyfluoroalkyl substances (PFAS) lawsuit, ruling that a fact finder could “plausibly find” that the defendants, companies that supplied PFAS for use at paper mills, “participated to a substantial extent” in carrying on the nuisance at issue because they allegedly knew of the risks of unconfined discharges of PFAS into the environment and failed to provide any warnings.
October 10, 2023
S.C. Federal Judge Abstains In Dispute Over State Agency’s Air Emissions Decision

ROCK HILL, S.C. — A South Carolina federal judge abstained from considering whether the South Carolina Department of Health and Environmental Control (DHEC) incorrectly issued a construction permit to the operators of an air-polluting paper mill because the state maintains its own adequate procedure for raising such a challenge.
October 10, 2023
Insured Condo Association Appeals Pollution Exclusion Ruling To 11th Circuit

ATLANTA — An insured filed a notice of appeal to the 11th Circuit U.S. Court of Appeals, seeking review of a Georgia federal judge’s ruling that an insurer owes no coverage for underlying suits filed by residents of a condominium building who claim that they were injured as a result of fumes exhausted from a backup power generator because the policies’ pollution exclusions bar coverage.
October 09, 2023
Diversity Of Citizenship Does Not Exist In Sewage Backup Coverage Suit

BROOKLYN, N.Y. — A premises environmental liability insurer’s suit seeking a declaration regarding its coverage obligation for an underlying bodily injury suit must be dismissed because complete diversity of citizenship does not exist as the premises environmental liability insurer and the commercial general liability insurer, named as a defendant, are both incorporated in Delaware, a New York federal judge said.
October 04, 2023
N.Y. Federal Judge: Not Enough Evidence To Find Oil Spill Claims Are Time-Barred

BROOKLYN, N.Y. — There is not enough evidence at this stage to determine whether claims of property damage and personal injury raised by residents of a former industrial neighborhood who say they were harmed by an oil spill are time-barred, a New York federal judge found in denying a motion to dismiss filed by the company allegedly responsible for the spill.
October 04, 2023
Colo. Federal Judge Adopts Recommendation In Hazardous Waste Contamination Case

DENVER — A Colorado federal judge wholly adopted the recommendation of a magistrate judge and ruled that the United States is not entitled to sovereign immunity for claims of environmental mismanagement of a hazardous waste treatment facility brought by a Colorado state agency.
October 03, 2023
Supreme Court Rejects Farmers’ Petition Regarding Alleged Pesticide Damage

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 2 denied a petition for a writ of certiorari filed by a group of Texas farmers who said they were denied due process by the Texas Supreme Court, which found in favor of a chemical company accused of negligently applying pesticides that damaged crops.
October 03, 2023
U.S. Supreme Court Won’t Decide CERCLA Statute Of Limitations Dispute

WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 2 denied a petition for writ of certiorari that asked whether a judgment of liability without a corresponding imposition of costs or award of damages triggers the three-year statute of limitations for contribution costs under the Comprehensive Environmental Response, Compensation, and Liability Act.
October 03, 2023
Pollution Exclusion Bars Coverage For Damages Caused By Stormwater Runoff

ATLANTA — A Georgia federal judge granted a homebuilder liability insurer’s motion to dismiss an insured’s breach of contract suit after determining that no coverage is afforded for an underlying suit alleging property damages caused by stormwater runoff created by the insured’s construction of a townhome development because the policy’s pollution exclusion bars coverage for stormwater runoff.
October 02, 2023
Insurer Agrees To Dismiss Contamination Coverage Suit Following Settlement

ATHENS, Ga. — A commercial general liability insurer agreed to dismiss its suit filed against its insured and others in Georgia federal court and seeking a declaration that its policy’s pollution exclusion bars coverage for an underlying contamination and public nuisance suit arising out of the disposals made by the insured at a landfill after reaching a settlement with its insured and the other named defendants.
September 29, 2023
EPA Sues EBay For Selling Toxic, Pollution-Causing Car Parts, Pesticides

BROOKLYN, N.Y. — In a complaint filed in New York federal court on behalf of the U.S. Environmental Protection Agency, the U.S. Department of Justice alleges that eBay Inc. is in violation of federal environmental laws by selling motor vehicle parts and accessories, pesticides and paint remover products that run afoul of pollution standards and are toxic.
September 28, 2023
Senators Want EPA To Declare Public Health Emergency For Ohio Train Derailment

WASHINGTON, D.C. — Both U.S. senators from Ohio have sent a letter to the administrator of the U.S. Environmental Protection Agency asking him to declare a public health emergency related to contamination from chemicals that were released when a train operated by Norfolk Southern Corp. derailed in East Palestine, Ohio, in February.
September 27, 2023
Ohio Federal Judge Dismisses Claim Concerning Pollution At National Park Site

AKRON, Ohio — A company tasked with cleaning up a former industrial site within the Cuyahoga Valley National Park (CVNP) is not entitled to recovery costs from the United States under the Comprehensive Environmental Response, Compensation, and Liability Act because the permit it worked under expressly forbade it from seeking those costs, an Ohio federal judge found in partly granting the United States’ motion to dismiss.