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

Mealey's Pollution Liability

November 22, 2023
Norfolk Southern: Rail Car Owners Liable For Chemical Spill From Train Derailment

YOUNGSTOWN, Ohio — Norfolk Southern Corp. and Norfolk Southern Railway Co. (collectively, Norfolk Southern) filed a brief in Ohio federal court arguing that it should deny a motion to dismiss the third-party complaint Norfolk Southern has filed against rail car owners in relation to the train derailment in East Palestine, Ohio. Norfolk Southern contends that it is a common carrier and is entitled to seek cost recovery from rail car owners under federal law that imposes liability on rail car owners when their rail cars dispose hazardous substances into the environment.
November 20, 2023
Insurer’s Environmental Coverage Suit Stayed Until Underlying Suit Is Resolved

SANTA ANA, Calif. — A California state judge denied a demurrer to an insurer’s complaint but granted a motion to stay the insurer’s declaratory judgment suit until after an underlying environmental contamination suit against the successor company to an insured is resolved because resolution of the underlying suit will aid the court in determining whether the insurer’s pollution exclusion applies as a bar to coverage for the underlying suit.
November 17, 2023
In Clash Over Alaska City’s Air Quality, Federal Judge Approves Consent Decree

SEATTLE — A Washington federal judge on Nov. 17 entered a consent decree proposed by three citizen groups and the U.S. Environmental Protection Agency to 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.
November 16, 2023
6th Circuit: Challenges To Clean Air Act Plan Belong In D.C. Circuit

CINCINNATI — Four petitions for judicial review of a Clean Air Act (CAA) plan governing ambient air quality for 23 states must be heard in the District of Columbia Circuit U.S. Court of Appeals because the plan is nationally applicable and is based on a U.S. Environmental Protection Agency determination of nationwide scope, a Sixth Circuit U.S. Court of Appeals panel found in granting the EPA’s motions to transfer the petitions.
November 16, 2023
5th Circuit: Texas Agency Erred In Approving Permit For Natural Gas Plant

NEW ORLEANS — The Texas Commission on Environmental Quality (TCEQ) committed an error of law and acted arbitrarily and capriciously by failing to adequately explain why it approved a permit for a natural gas plant that contained less stringent emissions limits than those adopted in a permit for a separate plant that will use the same equipment, a Fifth Circuit U.S. Court of Appeals panel found in vacating the state agency’s permitting decision.
November 14, 2023
Federal Judge Refuses To Consolidate 2 CAA Cases About Incinerator Standards

WASHINGTON, D.C. — In denying a motion filed by a national trade organization to consolidate two cases regarding the U.S. Environmental Protection Agency’s alleged failure to review performance standards for certain solid-waste incinerators under the Clean Air Act (CAA), a District of Columbia federal judge said the motion amounted to a collateral attack of a proposed consent decree filed in the other case.
November 10, 2023
Magistrate Judge Clarifies Order Regarding Third-Party Complaints In CERCLA Case

MILWAUKEE — A Wisconsin federal magistrate judge clarified that in granting two former operators of a contaminated manufacturing site leave to file third-party claims under the Comprehensive Environmental Response, Compensation and Liability Act against the parent company of the plaintiff real estate developer, the court did not find that the parent company is a real party in interest.
November 07, 2023
W.Va. Federal Judge Grants Motion For Sanctions In Coal Mining Pollution Clash

HUNGTINGTON, W.Va. — Two property owners who brought claims arising from alleged pollution caused by coal mining activities violated their historic agreement with the owner of a company that mined the property by filing a motion for partial summary judgment against him after saying they would not pursue his personal assets, a West Virginia federal judge found in granting the company owner’s motion for sanctions.
November 07, 2023
In Climate Change Dispute, Hawaii Supreme Court Affirms Denial Of Motions

HONOLULU — A trial court properly denied two motions to dismiss filed by a group of oil and gas companies that are alleged to have caused damage to Honolulu by knowingly concealing the effect their fossil fuel products would have on global climate change, the majority of the Hawaii Supreme Court held in affirming the trial court’s judgment.
November 06, 2023
No Coverage For Underlying Suit Seeking Damages From Nitric Oxide Plume, Panel Says

DENVER — No coverage is owed to an insured for an underlying suit alleging damages caused by the release of a nitric oxide plume from an insured’s manufacturing plant because a pollution endorsement, which provides coverage for pollution-related bodily injury claims, applies only to claims that have a connection to Vermont, the 10th Circuit U.S. Court of Appeals said in affirming a district court’s ruling in favor of the insurer.
November 06, 2023
Insured Municipality Files Suit, Says Coverage Owed For Remediation Costs

TRENTON, N.J. — A premises pollution liability insurer breached its contract and acted in bad faith by denying coverage for environmental contamination remediation costs incurred by an insured municipality because the policy obligates the insurer to provide coverage for the remediation costs, the insured says in a complaint filed in New Jersey state court.
November 06, 2023
La. Federal Judge Denies Summary Judgment Motion In Creosote Contamination Row

LAKE CHARLES, La. — A railroad company is not entitled to summary judgment on claims that it contributed to contamination of a property because there are genuine issues of fact regarding whether it was aware of the contamination and whether creosote-soaked wooden poles were loaded onto its rail cars, a Louisiana federal judge found on Nov. 3 in denying the company’s motion for summary judgment.
November 03, 2023
Ohio High Court Majority Affirms Choice-Of-Law Analysis For Bad Faith Claim

COLUMBUS, Ohio — An Ohio appellate court applied the correct factors in a choice-of-law analysis for a bad faith claim in an environmental contamination coverage suit because the bad faith claim sounds in tort rather than contract, the majority of the Ohio Supreme Court said in affirming the appellate court’s ruling.
November 03, 2023
Missouri Federal Judge Remands Claims Arising From Contaminated Drinking Supply

ST. LOUIS — An electrical company alleged to have contaminated a city’s drinking water by using hazardous chemicals to clean one of its substations failed to show that the state law claims arising from the contamination raised any issues of federal law, a Missouri federal judge found Nov. 2 in remanding the case to state court.
November 02, 2023
Montana Federal Judge Says Environmental Group Lacks Standing On Nuisance Claims

BUTTE, Mont. — An environmental group that filed a second lawsuit against a Montana resort alleging that the resort violated the Clean Water Act (CWA) by discharging nitrogen into the Gallatin River without a National Pollutant Discharge Elimination System (NPDES) permit failed to show that it has standing to bring its civil and criminal nuisance claims, a Montana federal judge ruled in partly granting the resort’s motion to dismiss.
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.