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

Mealey's Pollution Liability

June 02, 2023
Federal Circuit: Army Corps Of Engineers Has Immunity From Stormwater Fees

WASHINGTON, D.C. — The U.S. Army Corps of Engineers is not required to pay stormwater management program fees sought by the city of Wilmington, Del., because it did not waive its sovereign immunity to such fees under the Clean Water Act (CWA), the Federal Circuit U.S. Court of Appeals held in affirming a Federal Claims Court judgment.
June 01, 2023
Federal Judge Won’t Stop USFS From Using Fire Retardant Despite CWA Violations

MISSOULA, Mont. — In partly granting summary judgment to an environmental group, a Montana federal judge held that the U.S. Forest Service (USFS) violated the Clean Water Act (CWA) by aerially deploying fire retardant to fight wildfires but refused to enjoin the agency from continuing its use of the chemical while it obtains a National Pollution Discharge Elimination System (NPDES) permit.
May 31, 2023
10th Circuit: Developer Can’t Challenge Ongoing EPA Actions At Polluted Property

DENVER — A trial court properly dismissed Comprehensive Environmental Response, Compensation and Liability Act claims brought by a real estate developer whose property showed signs of arsenic contamination because federal district courts have no jurisdiction to consider challenges to ongoing EPA removal actions, a 10th Circuit U.S. Court of Appeals panel found in affirming the trial court’s dismissal of the developer’s claims that the EPA was performing its cleanup of the property too slowly.
May 30, 2023
New Mexico Federal Judge Remands Oil Contamination Dispute To State Court

ALBUQUERQUE, N.M. — An operating company that allegedly failed to maintain oil wells that contaminated a nearby ranch is not entitled to severance of its claims because its operations were not completely separate from those of other parties that purportedly contributed to the contamination, a New Mexico judge held in granting a motion to remand filed by a conservation company that initiated the action in state court on behalf of the owners of the ranch.
May 25, 2023
High Court Adopts Rapanos Definition, Narrows Scope Of Waters Of The United States

WASHINGTON, D.C. — In an opinion and three concurring opinions, the U.S. Supreme Court on May 25 adopted the court’s plurality opinion in the 2006 Rapanos case to define the waters of the United States (WOTUS) for purposes of enforcing the Clean Water Act.
May 25, 2023
Calif. Panel Won’t Rehear Whether State Was Involved In Demolition Of Nuclear Site

SACRAMENTO, Calif. — A Third District California Court of Appeal panel on May 24 denied a petition for rehearing and, without changing its judgment, modified an opinion in which it found that Boeing’s planned demolition of a former nuclear and rocket research site is not covered by the California Environmental Quality Act (CEQA) because the demolition is a private action and the involvement of state agencies did not rise to such a level to bring the project under the statute.
May 23, 2023
2nd Circuit Upholds Ruling Against English Reinsurer In All-Sums Allocation Row

NEW YORK — In a May 22 ruling that represents its best guess as to what the United Kingdom Supreme Court would do, a Second Circuit U.S. Court of Appeals panel upheld a decision against an English facultative reinsurer over all-sums allocation of an environmental claims settlement.
May 23, 2023
Gold Miners Failed To Exhaust Remedies Before Challenging CWA Permit Denial

LAFAYETTE, La. — A group that claims to have found the largest ever gold discovery in Alaska’s Seward Peninsula failed to exhaust its administrative remedies before seeking judicial review of the U.S. Army Corps of Engineers’ decision to deny its permit to dredge a waterway because the group filed a request for appeal with the Corps but also filed suit before the Corps reached its final decision, a Louisiana federal judge found in granting the Corps’ motion to dismiss the action.
May 22, 2023
Parties In Refinery Flare Dispute Jointly Seek Stay Following Mediation Session

KANSAS CITY, Kan. — The United States and the operator of an oil refinery on May 19 filed a joint motion in Kansas federal court to stay proceedings arising from the operator’s alleged exceedance of hydrogen sulfide limits at two of its flares, stating that an agreement in principle to resolve the action had been reached.
May 22, 2023
Property Owners’ CERCLA Claims Not Precluded By Previous Owner’s Settlement

SAN FRANCISCO — Comprehensive Environmental Response, Compensation, and Liability Act claims brought by a company that purchased a polluted piece of property are not precluded by the previous owner’s settlement of CERCLA claims arising from the alleged migration of tetrachloroethylene (PCE) from its property to a neighboring one because those claims did not resolve CERCLA liability at the property at issue, a majority of a Ninth Circuit U.S. Court of Appeals panel found in reversing and remanding a trial court order dismissing the company’s claims under res judicata.
May 19, 2023
In Refinery Flare Dispute, Kansas Federal Judge Says Injunctive Relief Available

KANSAS CITY, Kan. — A magistrate judge correctly permitted the United States to pursue injunctive relief against an oil refinery because the Kansas Air Quality Act (KAQA) allows such relief to be sought in federal court, a Kansas federal judge held in denying review of the magistrate judge’s order granting the United States leave to amend its complaint against the refinery, which allegedly violated terms of a consent decree by exceeding hydrogen sulfide limits at two of its flares.
May 17, 2023
W.Va. Federal Judge Won’t Reconsider Dismissal Of Coal Mining Pollution Claims

HUNGTINGTON, W.Va. — In denying a motion for reconsideration, a West Virginia federal judge upheld a grant of summary judgment dismissing Resource Conservation and Recovery Act (RCRA) and Clean Water Act (CWA) claims brought against the head of the state’s environmental protection agency for the alleged contamination of a property where coal mining previously occurred.
May 15, 2023
Supreme Court Declines To Assess Clean Water Act Rule That Bars Citizen Suits

WASHINGTON, D.C. — The U.S. Supreme Court on May 15 denied a petition for writ of certiorari filed by a business that asked the high court to decide what test courts should apply when determining whether the diligent prosecution bar of the Clean Water Act (CWA) serves to bar citizen suits brought under the statute.
May 10, 2023
In Dry-Cleaning Pollution Dispute, Calif. Judge Refuses To Bar Punitive Damages

SAN FRANCISCO — Finding that the motion was procedurally deficient and that two chemical companies failed to meet their burdens on the merits for direct estoppel, a California judge denied the companies’ motion for summary adjudication on a punitive damages claim brought by the city of Modesto and some of its municipal agencies over perchloroethylene (PCE) contamination at former dry-cleaning sites around the city.
May 09, 2023
Metal Plating Company Ordered To Pay Calif. Agency’s Response Costs Under CERCLA

SAN FRANCISCO — A metal plating company that was found in contempt of court for failing to cooperate with discovery was ordered by a California federal judge to pay response costs incurred by the California Department of Toxic Substances Control for the cleanup of hazardous substances at a site where the company performed metal plating services.
May 09, 2023
Ill. Federal Judge Maintains Majority Of Claims In PCB Case Against Manufacturers

CHICAGO — In partly granting a motion to dismiss filed by three chemical manufacturers, an Illinois federal judge dismissed only two of the dozen claims brought by Illinois against the manufacturers for contamination of the state’s waterways and other natural resources, which was allegedly caused by the manufacturers’ production and sale of polychlorinated biphenyls (PCBs) in the state.
May 09, 2023
Texas Supreme Court: Car Makers Who Faked Emissions Can Be Sued In State Court

AUSTIN, Texas — The majority of the Texas Supreme Court held that Texas trial courts have personal jurisdiction to hear civil actions to enforce environmental laws against Volkswagen and Audi, which intentionally evaded compliance with federal emissions standards by installing illegal software into their vehicles, because the manufacturers completely controlled a fake recall process used as a pretense to install the software in vehicles that were already in Texas.
May 08, 2023
California Panel: No Official State Involvement In Demolition Of Nuclear Site

SACRAMENTO, Calif. — Boeing’s planned demolition of a former nuclear and rocket research site is not covered by the California Environmental Quality Act (CEQA) because the demolition is a private action and the involvement of state agencies did not rise to such a level to bring the project under the statute, a California panel held in affirming trial court’s denial of a citizen group’s petition for writ of mandate.
May 08, 2023
Texas Supreme Court Rejects Farmers’ Bid For Rehearing In Pesticide Case

AUSTIN, Texas — The Texas Supreme Court on May 5 stood by its recent holding in favor of a chemical company accused of negligence, rejecting a motion for rehearing by farmers who say their cotton crops were damaged by a drifting mesquite herbicide.
May 05, 2023
Review Of EPA’s Denial Of State Air Quality Plans To Remain In 5th Circuit

NEW ORLEANS — The majority of a Fifth Circuit U.S. Court of Appeals panel refused to transfer judicial review of a U.S. Environmental Protection Agency final rule that says multiple state implementation plans (SIPs) failed to comply with the 2015 eight-hour Ozone National Ambient Air Quality Standards (NAAQS), to the District of Columbia Circuit U.S. Court of Appeals because the SIPs were locally or regionally applicable.
May 05, 2023
California Statute Bars Pollution Claims Against Dissolved Company’s Shareholders

LOS ANGELES — A company that sought to recover response costs for the cleanup of a polluted property under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and California state law cannot recover from shareholders of a dissolved company because the state law that authorizes lawsuits against such shareholders contains a four-year statute of repose, a California federal judge held in granting dismissal of the claims against the shareholders.
May 05, 2023
Pennsylvania Federal Judge: Transporting Mercury Is Not An Ultrahazardous Activity

PITTSBURGH — A recycling company is entitled to dismissal of a common-law strict liability claim arising from spilled liquid mercury because the transportation of mercury is not an ultrahazardous activity that supports the claim, a Pennsylvania federal judge held in partially granting the recycling company’s motion to dismiss the claims brought by a transportation company that contracted to move the mercury.
May 04, 2023
Colorado Federal Judge Says CERCLA Claims For Mine Cleanup Costs Are Time-Barred

DENVER — Whether the cleanup of a former mining site is characterized as a removal action or remedial action, 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 partially granting the smelting company’s motion for summary judgment.
May 01, 2023
Government Isn’t Immune From CERCLA Interest Payments, Claims Court Judge Finds

WASHINGTON, D.C. — Four oil companies seeking cleanup costs incurred at a site where they manufactured aviation gasoline (avgas) pursuant to contracts signed with the United States during World War II are entitled to Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) interest payments arising from the contracts because the agreements contained provisions in which the United States waived its sovereign immunity, a Court of Federal Claims judge held in granting the companies’ motion for summary judgment.
May 01, 2023
EPA Wins Dismissal Of Most, But Not All, Claims In Pennsylvania CWA Litigation

PHILADELPHIA — Allegations by a Pennsylvania borough that the U.S. Environmental Protection Agency’s denial of its request for reconsideration of a total maximum daily load calculation (TMDL) for phosphorous levels in an impaired watershed was arbitrary and capricious will proceed, for now, a federal judge there has ruled.