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

Mealey's Pollution Liability

November 14, 2022
In CERCLA Row, N.M. Federal Magistrate Denies ‘Grossly Untimely’ Motion

LAS CRUCES, N.M. — An effort by a defendant to strike the supplemental reports of a plaintiff’s expert witness in a cost recovery and contribution action was construed by a federal magistrate judge in New Mexico as a discovery-related motion and, as such, was denied for falling well past the October 2020 deadline to lodge such requests.
November 14, 2022
Indiana Clean Air Act Case Against BP Ends In Consent Decree

HAMMOND, Ind. — A federal judge in Indiana entered a consent decree in a citizen petition brought by the Sierra Club over excessive emissions at a Whiting, Ind., oil refinery.
November 14, 2022
Panel: Actual Controversy Exists Between State, Former Waste Facility

LANSING, Mich. — The Michigan Court of Appeals has said a lower court abused its discretion when it ruled that a plaintiff could not seek declaratory relief against a state environmental agency when the agency has not formally ordered corrective action.
November 11, 2022
Mass. Panel: Sale Of Polluted Property Left Scope Of Remediation Ambiguous

BOSTON — Provisions regarding the scope of environmental remediation in an agreement for the sale of polluted property were inconsistent and ambiguous, creating a genuine issue of material fact, a Massachusetts appellate panel held in vacating part and affirming part of a trial court’s decision to grant summary judgment to a developer who purchased polluted property and its development rights from another developer.
November 09, 2022
In Connecticut Suit Over School Bus Idling, Leave To Amend Partly Denied

HARTFORD, Conn. — A federal magistrate judge in Connecticut has rejected, in part, a nonprofit environmental group’s request to amend its complaint against a school bus company accused of violating the Clean Air Act (CAA) by allowing its buses to excessively idle.
November 09, 2022
Indiana Panel Reverses Contract Finding In Pollution Indemnification Dispute

INDIANAPOLIS — An Indiana Court of Appeals panel reversed a trial court’s grant of summary judgment and found that the definitions in a settlement agreement that resolved claims over pollution that allegedly migrated between two adjacent properties said that the current owner of the property agreed to indemnify a paint manufacturer for third-party contribution claims brought against the manufacturer in an environmental suit originally brought by the property owner.
November 09, 2022
Federal Judge: Local Government Can Sue As ‘Citizen’ Under Clean Water Act

SACRAMENTO, Calif. — A county has statutory standing to sue as it falls within the Clean Water Act’s (CWA) “citizen” definition “based on the statute’s unambiguous language,” a California federal judge ruled in denying the California Department of Corrections and Rehabilitation’s (CDCR) motion for summary judgment in a consolidated case where an environmental group and a county allege that the CDCR violated two permits and the CWA by discharging polluted stormwater from a prison and its connected manufacturing facility into a creek.
November 08, 2022
Biofilter Cannot Be Both Point Source And Body Of Water, Court Rules

TACOMA, Wash. — A federal judge in Washington said a citizen lawsuit against a homeowners association accused of allowing a biofilter to fall into disrepair cannot proceed on a theory that the biofilter is a point source and water of the United States under the Clean Water Act (CWA).
November 08, 2022
Arkansas Federal Judge Enters Decree In EPA Case Over Defeat Devices

HARRISON, Ark. — Allegations that manufacturers violated the Clean Air Act (CAA) in connection with the sale of aftermarket products designed to bypass, defeat or render motor vehicle emission controls inoperative have been resolved in Arkansas federal court, with the defendants agreeing to a $1.6 million civil penalty.
November 08, 2022
R.I. Federal Judge Denies Third-Party Motions In Drum Reconditioning Row

PROVIDENCE, R.I. — Requests for summary judgment by companies who sent steel drums to New England Container Co. (NECC) for reconditioning on a polluter’s request for contribution under a theory of arranger liability are premature, a federal judge in Rhode Island has ruled.
November 08, 2022
Petition Seeks Rebuttable Presumption That Certain Large CAFOs Pollute

WASHINGTON, D.C. — A group of more than 50 environmental advocates, including the Natural Resources Defense Council and the Humane Society of the United States, petitioned the U.S. Environmental Protection Agency to increase its oversight of certain concentrated animal feeding operations (CAFOs), including by adopting a rebuttable presumption that industrial meat, dairy and poultry production facilities that use wet manure management systems are actually discharging pollutants.
November 08, 2022
Wash. Federal Judge Grants Motion Stating Mine Owner’s Clean Water Act Liability

SPOKANE, Wash. — A Washington federal judge granted an environmental group, the state of Washington and a gold mine owner’s stipulated motion stating the owner’s liability under the Clean Water Act (CWA) in a citizen suit brought against the owner for discharging pollutants from the mine into ground and surface waters in excess of its discharge permit limits.
November 08, 2022
Environmental Study Creates Issues Of Fact For Pollution Claims, Conn. Panel Says

HARTFORD, Conn. — An affidavit and an environmental study offered by a property owner were sufficient to create an issue of material fact about whether petroleum products and other hazardous substances had entered its property through a drainage pipe from an adjacent property, a Connecticut appellate panel held in reversing a trial court’s grant of summary judgment to the past and present owners of a former auto repair shop who argued that the neighboring property owner had to provide stronger evidence of the alleged pollution for the claims to survive the motion.
November 07, 2022
U.S. Bid For Cost Recovery In CERCLA Action Over WWII Ordinance Site Denied

MINNEAPOLIS — The United States is not entitled to recover any response costs associated with the investigation or remediation of a Rosemount, Minn., ordinance facility that produced smokeless cannon and rifle powder during World War II because the government “never held an enforcement role and has specifically declined any further participation in the cleanup at the Site,” a Minnesota federal judge ruled.
November 04, 2022
North Carolina High Court: PFAS Case Against DuPont Valid On Due Process Grounds

RALEIGH, N.C. — In affirming a court’s denial of a motion to dismiss a per- and polyfluoroalkyl substances (PFAS) groundwater lawsuit brought by North Carolina against E.I. DuPont de Nemours & Co. and its affiliates, the North Carolina Supreme Court on Nov. 4 ruled that due process permits a predecessor’s liabilities to be imputed to its corporate successors to establish personal jurisdiction even where the successor itself has no direct contact with the forum state.
November 04, 2022
Federal Judge: Mining Company’s Potential Permit Won’t Affect Clean Water Case

TUSCALOOSA, Ala. — A federal judge in Alabama denied a coal mining company’s motion to stay a suit brought by an environmental nonprofit against two coal companies under the Clean Water Act (CWA) and state environmental laws for alleged unauthorized discharges into a tributary of the Black Warrior River, finding that the claims would be unaffected by a potential future permit and that the company failed to argue that a stay was necessary to prevent significant hardship or inequity.
November 04, 2022
9th Circuit Stays Bid For Mandamus By Environmental Groups Over CAFOs

SAN FRANCISCO — Following a joint motion by mandamus petitioners and the U.S. Environmental Protection Agency, the Ninth Circuit U.S. Court of Appeals stayed a dispute over the agency’s alleged “egregious delay” in addressing the matter of pollution caused by concentrated animal feeding operations (CAFOs).
November 03, 2022
Federal Judge Follows 9th Circuit Cases And Remands Climate Change Claims

SAN FRANCISCO — Following the precedent set by two recent Ninth Circuit U.S. Court of Appeals’ decisions, a federal judge in California granted a motion to remand climate change claims brought against some of the world’s largest oil companies for lack of removal jurisdiction and vacated an order that held that the court lacked personal jurisdiction over some of the companies.
November 03, 2022
Review Period, Comment Deadline Noticed In N.M. Air Pollution Case

ALBUQUERQUE, N.M. — In a filing with a New Mexico federal court, an environmental advocacy group said it provided the U.S. Environmental Protection Agency and U.S. attorney general a copy of a consent decree and order lodged one week earlier, which calls for an oil and gas company to pay a $500,000 penalty for unlawful methane flares.
November 01, 2022
Pollution Exclusion Bars Coverage For Underlying Contamination Suits

JACKSON, Miss. — A pollution exclusion included in a primary insurer’s policies bars coverage for underlying suits alleging that an insured’s facility contaminated neighboring properties because the pollution exclusion at issue precludes coverage for loss of use of property as alleged in the underlying suits, a Mississippi state judge said Oct. 28 in granting the primary insurer’s motion for summary judgment.
October 28, 2022
New Jersey Agency Bid To Preserve Natural Resource Damages Claim Fails

HACKENSACK, N.J. — A New Jersey Superior Court judge has rejected a motion by a state environmental agency to revisit her August 2022 judgment dismissing a dispute over the discharge of hazardous substances and pollutants at a chemical manufacturing facility, on grounds that the case is foreclosed by the terms of a 2013 consent decree.
October 28, 2022
Following Bench Trial, Radius Of Lead Contamination Reduced In California

LOS ANGELES — The position of the California Department of Toxic Substance Control (DTSC) that a battery recycling plant contaminated a 1.7-mile radius area has been rejected by a federal judge in California, who found instead that the state can seek cost recovery only for lead contamination within a half-mile radius of the former facility.
October 20, 2022
COMMENTARY: Is Today’s Attempt At A Public Nuisance “Super Tort” The Emperor’s New Clothes Of Modern Litigation?

By Philip S. Goldberg
October 24, 2022
Constructive Fraud Counterclaim In CERCLA Case Survives Dismissal Bid

CHARLOTTE, N.C. — Trex Properties LLC must face a counterclaim for constructive fraud by one of the 900 defendants it sued in 2021 under the Comprehensive Environmental Response, Cost Recovery and Liability Act, a federal judge in North Carolina has ruled.
October 24, 2022
In Sewer Overflow Row, Louisiana Federal Judge Slashes Fee Recommendation

NEW ORLEANS — The attorneys for a prevailing defendant in a Clean Water Act (CWA) case are entitled to $12,355 in fees, not the $142,422 recently recommended by a Louisiana federal magistrate judge, a federal judge in Louisiana has ruled.