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

Mealey's Pollution Liability

August 28, 2023
Pollution Liability Insurer Says Bad Faith Suit Must Be Heard In Federal Court

SEATTLE — An insured’s complaint alleging claims for breach of contract and bad faith arising out of a commercial general liability and pollution liability insurer’s denial of coverage for underlying bodily injury suits stemming from exposure to chemicals distributed by the insured must be removed to Washington federal court because diversity of citizenship exists and the amount in controversy exceeds the federal jurisdictional minimum of $75,000, the insurer says in a notice of removal.
August 25, 2023
Magistrate Judge Grants And Denies Summary Judgment Motions In River Pollution Row

SACRAMENTO, Calif. — In granting one and denying another motion for summary judgment, a California federal magistrate judge found that an environmental group sufficiently established standing and that the operator of an equestrian center discharged pollutants into waters of the United States for the purposes of the Clean Water Act (CWA).
August 25, 2023
10th Circuit Says EPA Misapplied Discretionary Guidelines To Emissions Plan

DENVER — In disapproving a portion of Wyoming’s state implementation plan (SIP) for reducing emissions at several power plants within its borders, the U.S. Environmental Protection Agency incorrectly treated some of its discretionary guidelines as mandatory, a 10th Circuit U.S. Court of Appeals panel found in vacating a portion of the agency’s final rule on the SIP.
August 25, 2023
Reinsurer Wins Permission To Seal 2 Agreements In Cleanup Costs Coverage Row

PADUCAH, Ky. — A Kentucky federal magistrate judge on Aug. 24 granted a motion to seal a third-party administrative services agreement (ASA) and a reinsurance agreement, saying the entities involved have a compelling interest that “outweighs the public’s interest in accessing” the documents and that redaction would be “impractical.”
August 24, 2023
In Permit Dispute, New York Federal Judge Dismisses Clean Water Act Claims

ROCHESTER, N.Y. — Three environmental groups that challenged a state pollutant discharge elimination system (SPDES) permit issued by the New York State Department of Environmental Conservation (NYSDEC) to the owner and operator of a power plant failed to state a claim because they alleged that the state renewal application submitted by the owner failed to comply with federal regulations which it was not subject to, a New York federal judge found in dismissing their complaint.
August 23, 2023
In Mine Cleanup Dispute, Colorado Federal Judge Approves Interlocutory Appeal

DENVER — Controlling questions of law exist about whether the Comprehensive Environmental Response, Compensation, and Liability Act’s statute of limitations bars contribution claims brought by the owner of a former mine site against a smelting company whose predecessors contributed to the pollution of the site, a Colorado federal judge held in granting the owner’s motion for interlocutory appeal.
August 21, 2023
N.C. Federal Judge Denies Summary Judgment Motions In Wastewater Contamination Row

STATESVILLE, N.C. — Genuine issues of material fact exist about statutory and other defenses to Comprehensive Environmental Response, Compensation, and Liability Act claims brought by an adhesive manufacturer that sued numerous parties for allegedly failing to clean totes of contaminated wastewater produced by the manufacturers’ operations and stored on a separate property, a North Carolina federal judge found in denying the manufacturer and a defendant-property owner’s motions for summary judgment.
August 21, 2023
Shrimping Activities Not Covered By Clean Water Act, 4th Circuit Concludes

RICHMOND, Va. — Shrimpers that operated in North Carolina’s Pamlico Sound did not violate the Clean Water Act (CWA) through their fishing operations because returning bycatch to the ocean is not forbidden under the law and displacing sediment with trawl nets merely kicks up materials already present in the sound, a Fourth Circuit U.S. Court of Appeals panel found in affirming a trial court’s judgment.
August 18, 2023
Calif. Federal Judge Denies Injunction In Dispute Over New Water Quality Standards

SACRAMENTO, Calif. — Two trade associations are not entitled to a preliminary injunction preventing the enforcement of California’s new water quality standards because they failed to show that they will suffer irreparable harm if the standards are enforced or are likely to succeed on the merits of their claims that the adoption of the standards was arbitrary and capricious, a federal judge in California found in denying the associations’ motion for a preliminary injunction.
August 18, 2023
Maryland High Court Affirms Approval Of Animal Feeding Operations Permit

ANNAPOLIS, Md. — The Maryland Department of the Environment’s decision to approve a general permit regulating animal feeding operations (AFO) was not arbitrary or capricious because the permit is reasonable and consistent with the Clean Water Act (CWA) and applicable state law, a majority of the Maryland Supreme Court held in reversing a trial court’s decision to remand the permit.
August 17, 2023
Nonprofit Says Its Ohio Train Derailment Claims Against EPA Are Valid

YOUNGSTOWN, Ohio — A nonprofit organization has filed a brief in Ohio federal court contending that it should deny a motion to dismiss its lawsuit against the U.S. Environmental Protection Agency related to the East Palestine train derailment and the subsequent toxic chemical spill on grounds the EPA and local authorities failed to conduct proper testing for chemical spills and misled members of the public as to whether the air and drinking water were safe.
August 17, 2023
10th Circuit Denies Petition For Review Of Utah’s Air Visibility Plan

DENVER — The U.S. Environmental Protection Agency’s decision to approve Utah’s state implementation plan (SIP) for improving visibility in national parks and wilderness areas was not arbitrary or capricious because the agency rationally explained the methodology it used to test the emissions of power plants that contribute to regional haze, a 10th Circuit U.S. Court of Appeals panel found in denying a petition for review of the decision.
August 16, 2023
Magistrate Judge Rules On 2 Discovery Motions In Landfill Contamination Dispute

COLUMBUS, Ohio — In partly granting one and fully denying a second discovery motion filed by a company sued by the Goodyear Tire & Rubber Co. for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act arising from the cleanup of a former industrial and municipal landfill, an Ohio federal magistrate judge ordered Goodyear to produce evidence of response costs it received through settlement agreements with other potentially responsible parties.
August 14, 2023
Ill. Federal Judge: Judicial Notice Cannot Be Used To Dismiss Contamination Case

CHICAGO — The owner and operator of a gas station cannot use judicial notice to support its argument that claims arising from the alleged migration of hazardous substances from the gas station to a neighboring property are time-barred because the cited documents do not show that the property owner had notice of the contamination, an Illinois federal judge found in denying the owner’s motion to dismiss and request for judicial notice.
August 14, 2023
Norfolk Southern Says It Would Be Premature To Strike Affirmative Defenses

YOUNGSTOWN, Ohio — Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) filed a brief in Ohio federal court arguing that the U.S. Environmental Protection Agency’s motion to strike Norfolk Southern’s affirmative defenses in the consolidated lawsuits brought by Ohio and the U.S. government related to injuries from the train derailment in East Palestine ask the court to prematurely adjudicate the merits of affirmative defenses before any discovery has taken place.
August 11, 2023
Plaintiffs, Railroad Agree To Terms For Filing Amended Train Derailment Case

YOUNGSTOWN, Ohio — Residents and businesses who say they have been injured from exposure to toxic chemicals released from the train derailment in East Palestine, Ohio, and Norfolk Southern, which operates the railroad, have filed a joint motion in Ohio federal court saying Norfolk Southern’s pending motion to dismiss should apply fully to a proposed first amended master consolidated class complaint because of the limited scope of the new allegations it contains.
August 09, 2023
In CERCLA Row, Mo. Federal Judge Says Fact Questions Surround Affirmative Defense

JOPLIN, Mo. — Summary judgment is not appropriate because questions of fact exist about whether the environmental harm caused by phosphogypsum at a former fertilizer plant can be divided among the plant’s former operators, a Missouri federal judge found in denying cross-motions for summary judgment on a divisibility of harm affirmative defense raised by a former operator of the plant, which was sued by a development company that purchased the polluted site and incurred costs.
August 09, 2023
Ind. Federal Judge Allows Intervenors To Seek Fees In Lake Michigan Pollution Case

HAMMOND, Ind. — In adopting a report and recommendation from a magistrate judge, an Indiana federal judge granted Chicago and an environmental group’s motion for leave to file a motion for fees in one of two parallel proceedings concerning a large release of hazardous substances from a steel plant into Lake Michigan.
August 08, 2023
Minnesota High Court: State Agency’s Request To EPA Was Procedurally Irregular

ST. PAUL, Minn. — Through irregular procedures, the Minnesota Pollution Control Agency (MPCA) acted arbitrarily and capriciously when it asked the U.S. Environmental Protection Agency to delay providing written comments regarding a combined National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit before ultimately approving the permit for a proposed mine and process plant, the Minnesota Supreme Court held in remanding the permit to the MPCA.
August 07, 2023
Insurer Owes $3.5M For Defense Costs, Fees Incurred In Toxic Emissions Suit

MIAMI — An insurer owes its insured approximately $3.5 million in damages and attorney fees and costs incurred by the insured for an underlying lawsuit alleging that toxic emissions created by the insured’s practice of sugarcane burning caused property damage and bodily injuries, a Florida federal judge said in partly granting the insured’s motion for summary judgment.
August 07, 2023
Groups Have Standing To Bring Pollution Claims Against Car Dismantling Company

SAN DIEGO — Two environmental groups have standing to brings claims alleging that an automotive dismantling company polluted the San Luis Rey River near San Diego because its members’ claimed injuries of loss of use and enjoyment of the area around the river are reasonably traceable to the company’s actions and redressable, a California federal judge held in partly granting the company’s motion to dismiss.
August 03, 2023
9th Circuit Denies San Francisco’s Petition To Review Its Latest NPDES Permit

SAN FRANCISCO — The U.S. Environmental Protection Agency has the authority to include two narrative prohibitions and a long-term control plan (LTCP) update requirement in San Francisco’s National Pollutant Discharge Elimination System (NPDES) sewer system permit because such general and broad prohibitions are permitted under the Clean Water Act (CWA) and San Francisco has not updated its LTCP since 1991, the majority of a Ninth Circuit U.S. Court of Appeals panel found in denying San Francisco’s petition for review of the permit.
August 03, 2023
Calif. Federal Judge Refuses To Dismiss Third-Party Claims Of PCE Contamination

SANTA ANA, Calif. — The former operator of a dry-cleaning business sufficiently pleaded its third-party claims under the Comprehensive Environmental Response, Compensation, and Liability Act and California law because it explained where and how hazardous substances migrated from a nearby property onto its own, a California federal judge found in denying a motion to dismiss filed by three third-party defendants.
August 02, 2023
State Agencies Were Not Operators Under CERCLA, California Federal Judge Says

SACRAMENTO, Calif. — Two California agencies that oversaw the remediation of a contaminated former wood preserving facility were not operators under the Comprehensive Environmental Response, Compensation, and Liability Act because the counterclaims brought against them by a group of intervening insurers contained no allegations that the agencies controlled the facility while hazardous substances were being released, a California federal judge held in granting the agencies’ motion to dismiss.
August 02, 2023
Briefly: Pipeline Companies To Pay $12.5M In Penalties For 2 Oil Spills

WASHINGTON, D.C. — The U.S. Environmental Protection Agency announced that it has reached a consent agreement with two pipeline companies under which they will pay a combined $12.5 million in civil penalties for violating safety laws and the Clean Water Act (CWA) in connection with oil spills in Montana and North Dakota.