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

Mealey's Pollution Liability

February 14, 2023
9th Circuit Affirms Apportionment Of CERCLA Liability For Smelting Site

SAN FRANCISCO — In affirming a trial court’s allocation of environmental liability between two subsequent owners and operators of a former aluminum smelting site, a Ninth Circuit U.S. Court of Appeals panel held that the trial court did not err in considering the intent of the parties as expressed in the terms of the acquisition agreement between them, as well as their contribution to the site’s contamination and economic benefit received from the site.
February 14, 2023
Judge In Oil Spill Case: Port Operator Not A U.S. Agent; Coast Guard Not A Party

SANTA ANA, Calif. — A nonprofit that regulates shipping commerce in San Pedro Bay is not an agent of the United States, and the U.S. Coast Guard is not a necessary party to the action arising from an oil spill allegedly caused by two vessels that struck and damaged a pipeline, a California federal judge found in rejecting the nonprofit’s motions to dismiss a third-party complaint and an intervenor complaint for damages.
February 13, 2023
Stanford Settles CERCLA Contribution Claims Against Agilent, HP

SAN FRANCISCO — A federal judge in California has dismissed without prejudice a case filed in 2018 by Stanford University against several technology companies accused of contaminating the soil with trichloroethylene (TCE) and polychlorinated biphenyls (PCBs).
February 13, 2023
California Panel: Challenge To Cleanup Contracts Barred By Res Judicata

FRESNO, Calif. — A California federal judge’s determination that the city of Visalia, Calif., is responsible for 50% of the costs associated with perchloroethylene (PCE) cleanup at a former dry cleaning business precludes the city from pursuing a state court declaratory judgment of whether public bidding procedures under the California Public Contracts Code (PCC) apply to cleanup contracts entered into by the dry cleaner, a California appellate court ruled.
February 13, 2023
Exception To Pollution Exclusion In Excess Policies Does Not Apply, Judge Says

JACKSON, Miss. — The sudden and accidental exception to pollution exclusions included in excess insurance policies does not provide coverage for underlying suits alleging that an insured’s facility contaminated neighboring properties because the pollution at issue was not sudden as required for the exception to apply, a Mississippi state judge said.
February 13, 2023
California Federal Judge Certifies Plaintiff Class In Fuel Jettison Case

LOS ANGELES — Allegations of trespass leveled against Delta Airlines Inc. in connection with an engine malfunction in January 2020 that led a flight bound for Shanghai to jettison fuel over thousands of homes in Southern California present a common issue that predominates over individual ones, a federal judge in California has ruled, certifying a plaintiff class.
February 10, 2023
Oil Companies Ask High Court To Decide Jurisdiction Issue Over WWII Gas Production

WASHINGTON, D.C. — A group of oil companies that operated in Louisiana during World War II have petitioned the U.S. Supreme Court to determine whether they were simply complying with federal regulations or were “acting under” federal officers to a degree that satisfies federal officer jurisdiction to remove state environmental law claims raised by several Louisiana parishes to federal court.
February 10, 2023
Minn. Panel: Agency’s Adoption Of California Emission Standards Is Constitutional

ST. PAUL, Minn. — A Minnesota agency’s adoption of California standards for motor vehicles emissions is constitutional because the adoption did not violate the nondelegation doctrine of the Minnesota Constitution and would not automatically incorporate future major changes to the standards made by California, a Minnesota appellate panel found in considering an automobile dealers association’s challenge to the state’s new Clean Car Rule.
February 08, 2023
Landfill Operator Prevails On CWA, CERCLA Cost Recovery Claims

COLUMBIA, Tenn. — A federal judge in Tennessee denied a defendant landfill owner summary judgment on state law claims of trespass and punitive damages in connection with the operation of the landfill and its acceptance of aluminum byproducts, but said the owner is entitled to prevail on allegations that it violated federal environmental law.
February 08, 2023
Dispute Over Arizona ‘Sham’ E-Waste Recycler Yields New Settlement

PHOENIX — A federal judge in Arizona has granted final approval of another settlement agreement in a dispute over a purported recycling facility that stockpiled and ultimately abandoned 106 million pounds of e-waste.
February 08, 2023
D.C. Circuit Panel Refuses To Stay Remand Of Climate Change Claims

WASHINGTON, D.C. — A District of Columbia Circuit U.S. Court of Appeals panel denied fossil fuel companies’ emergency motion for a stay pending the appeal of a U.S. District Court for the District of Columbia order remanding the District of Columbia’s climate change claims against the companies that were originally filed in the District of Columbia Superior Court.
February 08, 2023
Idaho Federal Judge Delivers Split Ruling On Challenges To Proposed Phosphate Mine

POCATELLO, Idaho — A federal judge in Idaho partially granted and partially denied motions for summary judgment filed by the U.S. Bureau of Land Management (BLM), three environmental groups and a mining company over the environmental groups’ allegations that a proposed phosphate mine would violate Idaho state law, the Clean Water Act (CWA) and other federal laws.
February 01, 2023
No Coverage Owed For Coronavirus Losses Under Pollution Liability Policy

ALEXANDRIA, Va. — The Fourth Circuit U.S. Court of Appeal on Jan. 31 affirmed a district court’s ruling that no coverage is owed to insureds for business interruption losses sustained as a result of the coronavirus pandemic, agreeing with the lower court’s determination that the virus does not qualify as a pollution condition under the premises pollution liability policy.
January 30, 2023
8th Circuit Denies States’ Bid For Rehearing Of Standing Findings

ST. LOUIS — The Eighth Circuit U.S. Court of Appeals on Jan. 27 stood by its October determination that 13 states lack standing to challenge President Joseph Biden’s reestablishment of the Interagency Working Group (IWG) on the Social Cost of Greenhouse Gases (SC-GHG).
January 30, 2023
Paper Companies: CERCLA Statute Of Limitations Holding Not Cert-Worthy

WASHINGTON, D.C. — In Jan. 27 opposition briefs filed with the U.S. Supreme Court, two paper companies defend a determination by the Sixth Circuit U.S. Court of Appeals that a statute of limitations affirmative defense is available to them in a lawsuit over polychlorinated biphenyl (PCB) pollution at the Kalamazoo River Superfund site.
January 30, 2023
Pollution Exclusion Is Ambiguous As To Whether Home Heating Oil Is A Pollutant

PROVIDENCE, R.I. — The Rhode Island Supreme Court on Jan. 27 vacated and remanded a trial court’s ruling entered in favor of an insurer in an insured’s suit seeking coverage for an underlying suit arising out of a home heating oil spill because the policy’s pollution exclusion is ambiguous as to whether home heating oil qualifies as a pollutant.
January 30, 2023
Delaware High Court: Property Owners Forfeited Environmental Liability Challenge

WILMINGTON, Del. — The Delaware Supreme Court on Jan. 27 said a decision by property owners to withdraw their administrative appeal of a determination of environmental liability means that they “effectively forfeited the right to” later challenge that liability in connection with a $105,464.87 award in favor of the state.
January 26, 2023
Fla. Federal Judge: Clean Water Permit Approval Was Not Arbitrary Or Capricious

TAMPA, Fla. — An environmental group failed to show that the Army Corps of Engineers acted arbitrarily or capriciously when it approved a Clean Water Act (CWA) permit for a road project that would run through a wilderness preserve in Pasco County, a Florida federal judge held in overruling the group’s objections to a federal magistrate judge’s recommendation that the Corps’ and Pasco County’s cross-motions for summary judgment be granted.
January 26, 2023
W.Va. Federal Judge: No Good Cause To Amend CERCLA Complaint At This Late Stage

HUNGTINGTON, W.Va. — A property owner and a company that brought Comprehensive Environmental Response, Compensation, and Liability Act allegations against a West Virginia state official and the former operators of a coal mine located on the property failed to show good cause to amend their complaint because their proposed changes would require additional discovery that prejudice the defendants at this stage of the case, a West Virginia federal judge found in denying the plaintiffs’ motion for leave to file a second amended complaint.
January 23, 2023
Amici To D.C. Circuit: California Emissions Plan ‘Essential’ To Health

WASHINGTON, D.C. — One week after the U.S. Environmental Protection Agency filed a brief with the District of Columbia U.S. Circuit Court of Appeals defending its decision to reinstate a waiver for California to certain Clean Air Act (CAA) requirements, amicus curiae briefs were filed in support on Jan. 20, with the American Thoracic Society arguing that “California’s capacity to promulgate and implement” automobile emissions regulations “is essential” to protecting public health “particularly in a warming world.”
January 20, 2023
In Longstanding Pollution Case Against Poultry Companies, Oklahoma Prevails

TULSA, Okla. — In a 219-page opinion detailing findings of fact and conclusions of law from a 52-day bench trial that took place in 2009, a federal judge in Oklahoma has sided with Oklahoma on allegations that Tyson Foods Inc. and other Arkansas-based poultry plants polluted the Illinois River.
January 19, 2023
Texas Files Suit Opposing New Clean Water Rule On Same Day Rule Is Published

GALVESTON, Texas — On the day the federal government published its revised definition of waters of the United States, Texas on Jan. 18 filed a complaint saying the new rule expands regulation authorized by the Clean Water Act, erodes states’ authority over their own water, interferes with state programs and undermines state sovereignty under the U.S. Constitution.
January 18, 2023
New Jersey Panel Affirms Agency Decision To Oversee Polluted Delaware River Site

JERSEY CITY, N.J. — The New Jersey Department of Environmental Protection’s (DEP) decision to directly oversee a manufacturing site did not violate the due process rights of the owner and operator of the site simply because the owner presented good-cause defenses to the DEP’s previous determination that it was responsible for polluting the Delaware River and nearby area, a New Jersey panel determined in affirming the agency’s decision.
January 18, 2023
Wash. Federal Judge Permits Alaska To Intervene In Clean Air Act Suit Against EPA

SEATTLE — Alaska maintains an interest that will not be protected if it is excluded from a case brought by three citizen groups against the U.S. Environmental Protection Agency to compel the agency to approve or disapprove a state implementation plan (SIP) to remediate air pollution in the borough of Fairbanks North Star because the EPA will not raise the same arguments offered by the state, a Washington federal judge found in granting the state’s motion to intervene in the action.
January 18, 2023
Montana Seeks Comments On $18.5M Asbestos Settlement With W.R. Grace

WILMINGTON, Del. — W.R. Grace & Co. has moved a Delaware federal bankruptcy judge to approve settlement of a claim by the Montana Department of Environmental Quality (MDEQ) for natural resource damages stemming from “Operable Unit 3” (OU3) at the Libby Asbestos Superfund site.