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Preview: LexisNexis® Mealey's™ Pollution Liability Legal News

LexisNexis® Mealey's™ Pollution Liability Legal News

Headline Pollution Liability Legal News from LexisNexis®


Government's Request To Dismiss Climate Change Suit Denied by 9th Circuit
SAN FRANCISCO - A Ninth Circuit U.S. Court of Appeals panel on March 7 denied a petition for a writ of mandamus seeking reversal of an order denying its motion to dismiss a lawsuit brought by 21 individuals accusing the defendants of contributing to climate change, holding that the issues raised would be better addressed through the course of ordinary litigation (United States of America, et al. v. United States District Court for the District of Oregon, No. 17-71692, 9th Cir.).

Judge: Nuisance Claims Against Sellers Of Fossil Fuels Governed By Federal Law
SAN FRANCISCO - Public nuisance claims brought by the residents of San Francisco and Oakland claiming that sellers of fossil fuels knew but concealed the risks of global warming are subject to federal law, a judge in California ruled Feb. 27 in denying the municipalities' motion to remand (People of the State of California v. BP PLC, et al., Nos. 17-06011, 17-06012, N.D. Calif., 2018 U.S. Dist. LEXIS 32990).

Appeals Court Amends Ruling Trimming EPA Rule Regulating Sham Recycling
WASHINGTON, D.C. - The District of Columbia Circuit U.S. Court of Appeals on March 6 amended its 2017 ruling that trimmed portions of a U.S. Environmental Protection Agency rule that was designed to cut down on "sham recycling" after hearing petitions for rehearing (American Petroleum Institute, et al. v. U.S. Environmental Protection Agency, No. 09-1038, consolidated with 15-1083, 15-1085, 15-1088, 15-1089, 15-1094, D.C. Cir., 2018 U.S. Dist. LEXIS 5613).

Judge Trims Waste-Processing Facility's RCRA Claims Against Port District
CHICAGO - A federal judge in Illinois on Feb. 15 found that a waste-processing company could not pursue claims that a port district violated the Resource Conservation and Recovery Act (RCRA) when constructing piers in the 1960s and 1970s using contaminated materials because the plaintiff did not provide sufficient presuit notification to inform the district about the alleged violations (Clean Harbors Services Inc. v. Illinois International Port District, No. 12-CV-7837, N.D. Ill., 2018 U.S. Dist. LEXIS 24583).

5th Circuit Finds No Merit In Challenges To $81M CITGO Penalty
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Feb. 14 overruled arguments by the federal government and CITGO Petroleum Corp. to a federal judge in Louisiana's ruling that the company should pay an $81 million civil penalty for violating the Clean Water Act following a 2006 oil spill at its Lake Charles facility, finding that they lacked merit (United States of America v. CITGO Petroleum Corp., No. 16-30515, 5th Cir., 2018 U.S. App. LEXIS 3392).

EPA's Request To Stay New York Water Quality Standards Suit Denied
NEW YORK - A federal judge in New York on Feb. 20 denied the U.S. Environmental Protection Agency's motion to stay proceedings in a suit over whether it failed to comply with its requirement under the Clean Water Act to approve or disapprove water quality standards submitted by the state, finding that nine environmental groups would be prejudiced by the delay (Riverkeeper Inc., et al. v. Scott Pruitt, et al., No. 17-CV-4916, S.D. N.Y., 2018 U.S. Dist. LEXIS 26960).

Magistrate Judge Recommends Dismissal Of Clean Water Act Suit Against Mine
DENVER - A federal magistrate judge in Colorado on March 5 recommended dismissal of a lawsuit brought by three individuals and two environmental conservation groups, finding that their notice of intent failed to sufficiently allege that a mining company and its managing member violated the Clean Water Act (CWA) (Pamela Stone, et al. v. High Mountain Mining Co. LLC, et al., No. 17-cv-01295, D. Colo., 2018 U.S. Dist. LEXIS 34932).

Land Buyer Cannot Seek Redress By Questioning Consent Decree, 10th Circuit Says
DENVER - The buyer of two remediated parcels of land lacks standing to enforce a consent decree between the federal government and defendants in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) action to obtain a declaration that a defendant company violated the agreement when conveying a railroad right of way during a separate real estate transaction, a 10th Circuit U.S. Court of Appeals panel ruled Feb. 23 (United States of America v. Colorado & Eastern Railroad Co., No. 16-1374, 10th Cir., 2018 U.S. Dist. LEXIS 4345).

Navajo Nation, New Mexico Claims Against EPA Contractor Survive Dismissal Bid
ALBUQUERQUE, N.M. - A federal judge on Feb. 12 mostly declined to dismiss claims leveled by the Navajo Nation and state of New Mexico against a company that worked on the Gold King Mine, where a 3-million-gallon spill in 2015 turned rivers yellow with acid mine drainage and 800,000 pounds of heavy metals (State of New Mexico v. U.S. Environmental Protection Agency, et al., No. 16-cv-465, Navajo Nation v. United States Environmental Protection Agency, et al., No. 16-cv-931, D. N.M., 2018 U.S. Dist. LEXIS 22548).

Judge Affirms Denial Of Resident's Intervention Request In Contamination Suit
HAMMOND, Ind. - A federal judge in Indiana on Feb. 9 upheld a magistrate judge's ruling denying a motion to intervene filed by nearby residents of a Superfund site, holding that the request, which came two years after a settlement was reached between companies and the U.S. Environmental Protection Agency, was untimely (United States of America v. Atlantic Richfield Co., et al., No. 14-cv-312, N.D. Ind., 2018 U.S. Dist. LEXIS 21524).

City Cleared Of Cleanup Liability After Couple Fails To Respond To Motion
SACRAMENTO, Calif. - The city of Davis, Calif., was cleared of liability from a couple's request for contribution and cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by a federal judge in California on Feb. 6 after the couple failed to respond to the city's motion for summary judgment (Charles H. Lewis, et al. v. Robert D. Russell, et al., No. 03-2646, E.D. Calif., 2018 U.S. Dist. LEXIS 19532).

Judge Approves New Consent Decree In Cleanup Suit
FRESNO, Calif. - A federal judge in California on March 1 approved an updated consent decree that requires the operator of a former wood preservation facility to remove contaminated soil from a site where it conducted operations and pay $57,450.38 to the U.S. Environmental Protection Agency for past cleanup costs (California Department of Toxic Substances Control v. Coast Wood Preserving Inc., et al., No. 96-CV-6055, E.D. Calif., 2018 U.S. Dist. LEXIS 33782).

Groundwater Plaintiffs: Stay Must Be Reconsidered To 'Prevent Manifest Injustice'
PHILADELPHIA - A group of Pennsylvania residents on March 2 filed a brief in Pennsylvania federal court arguing that "in order to prevent manifest injustice," the district court should reconsider a previous ruling in the plaintiffs' groundwater contamination lawsuit against a group of chemical companies because "the Plaintiffs are the victims of an indefinite stay . . . for which there is no basis" (Hanah Bates, et al. v. 3M Company, et al., No. 16-4961, E.D. Pa.).

New Jersey Panel Overrules Groups' Challenge To $225M Exxon Settlement
TRENTON, N.J. - A New Jersey appeals court panel on Feb. 12 found that while four environmental groups could appeal a trial court judge's ruling approving a $225 million settlement between the New Jersey Department of Environmental Protection (NJDEP) and Exxon Mobil Corp., the judge did not err when finding that the agreement was reasonable and consistent with the goals of the New Jersey Spill Compensation and Control Act (New Jersey Department of Environmental Protection v. Exxon Mobil Corporation, Nos. A-0668-15T1, A-0810-15T1, N.J. Super., App. Div., 2018 N.J. Super. LEXIS 23).

Shell To Pay $10M To Reduce Excessive Emissions From Industrial Flares
NEW ORLEANS - Shell Chemical LP on Feb. 12 entered into a consent decree in Louisiana federal court with the government and Louisiana Department of Environmental Quality (LDEQ) in which the company agreed to spend $10 million to reduce emissions of volatile organic compounds (VOCs) from the use of four industrial flares at its Norco, La., facility (United States of America, et al. v. Shell Chemical LP, No. 18-cv-104, E.D. La.).

Pennsylvania Superior Court Panel Affirms Finding Of No Coverage For Insured
HARRISBURG, Pa. - No coverage is owed for environmental contamination at a number of sites throughout the country because it is not clear that the contamination was caused solely by the insured's operations and the policies at issue provide coverage only for contamination that was caused by the insured's operations, the Pennsylvania Superior Court said Feb. 26 (Consolidated Rail Corp. v. ACE Property & Casualty Insurance Co., et al., No. 1376 EDA 2015, Pa. Super., 2018 Pa. Super. Unpub. LEXIS 578).

Federal Judge Denies Motion To Dismiss As It Pertains To Clause In Settlement Agreement
NEW YORK - A New York federal judge on Feb. 6 denied an insured's motion to dismiss as it pertained to the enforcement of a judgment reduction clause in a settlement agreement regarding a number of environmentally contaminated sites because it pertains to the claims at issue in the contribution suit, which has been pending in the New York federal court since 1984 (Olin Corp. v. Lamorak Insurance Co., et al., No. 84-1968, S.D. N.Y., 2018 U.S. Dist. LEXIS 20424).

Coverage Barred For Release Of Chlorine Gas, New York Federal Judge Says
SYRACUSE, N.Y. - No coverage is owed to insureds seeking a defense for an underlying suit alleging bodily injury claims caused by the release of chlorine gas from the insureds' scrap metal recycling plant because the policies' absolute pollution exclusion clearly precludes coverage for the underlying suit, a New York federal judge said Feb. 13 (Ben Weitsman & Son of Scranton LLC, et al. v. Hartford Fire Insurance Co., et al., No. 16-0780, N.D. N.Y., 2018 U.S. Dist. LEXIS 22970).

1st Circuit: EPA's Approval Of Stormwater Discharge Limits Does Not Require Notice
BOSTON - A First Circuit U.S. Court of Appeals panel on Jan. 24 affirmed the dismissal of two lawsuits brought by environmental groups against the U.S. Environmental Protection Agency, holding that the agency's approval of total maximum discharge limits (TMDLs) of stormwater for bodies of water in Rhode Island and Massachusetts did not trigger a duty to provide notice to potential dischargers (Conservation Law Foundation v. U.S. Environmental Protection Agency, Nos. 17-1166, 17-1354, 1st Cir., 2018 U.S. App. LEXIS 1734).

9th Circuit Upholds Ruling Finding County Violated Clean Water Act
HONOLULU - A Ninth Circuit U.S. Court of Appeals panel on Feb. 1 upheld a ruling awarding summary judgment to five environmental groups, holding that a federal judge did not err when finding that the county of Maui violated the Clean Water Act (CWA) when discharging pollutants from its wells into the Pacific Ocean (Hawaii Wildlife Fund, et al. v. County of Maui, No. 15-1744, 9th Cir., 2018 U.S. App. LEXIS 2582).

Salvage Yard's Counterclaim Against Group For Abuse Of Process Dismissed
BOSTON - A federal judge in Massachusetts dismissed without prejudice an auto salvage yard's counterclaim stating that an environmental group's Clean Water Act (CWA) lawsuit is an abuse of process, finding that any attorney fees awarded to the group could not be considered an ulterior motive for filing the action (Clean Water Action v. Searles Auto Recycling Corp., No. 16-12067-NMG, D. Mass., 2018 U.S. Dist. LEXIS 7436).

Judge Adopts Recommendation To Dismiss Third-Party Claims Over Illegal Dumping
BUFFALO, N.Y. - A federal judge in New York on Jan. 18 adopted a magistrate judge's recommendation to dismiss a third-party lawsuit filed by a company accused of violating the Clean Water Act (CWA) by illegally discharging fill materials into navigable waterways of the United States, finding that the landowner cannot seek contribution under state law because the government is not asserting claims for property damage (United States of America v. David A. Whitehall, et al., No. 14-CV-188, W.D. N.Y., 2018 U.S. Dist. LEXIS 8224).

Lake Michigan Surfer Group Sues U.S. Steel Over Allegedly Illegal Discharges
HAMMOND, Ind. - A nonprofit group comprising people who surf in Lake Michigan sued United States Steel Corp. in Indiana federal court on Jan. 17, claiming that the company is violating the Clean Water Act (CWA) by discharging wastewater and storm water that contain contaminants in excess of those allowed by National Pollutant Discharge Elimination System (NPDES) permits (Surfrider Foundation v. United States Steel Corp., No. 18-cv-00020, N.D. Ind.).

Chicago Sues U.S. Steel For Discharging Toxic Chemicals Into Lake Michigan
HAMMOND, Ind. - The city of Chicago on Jan. 24 sued U.S. Steel Corp. in an Indiana federal court, contending that it is liable for "multiple excessive discharges of toxic chemicals" into Lake Michigan, which is the source of drinking water for more than 5 million people and arguing that U.S. Steel has committed "repeated and significant" violations of its permits under the Clean Water Act (CWA), 33 U.S.C. 1251-1387 (City of Chicago v. United States Steel Corporation, No. 18-33, N.D. Ind.).

Judge Says CERLCA Commencement Date Applicable In Injury Suit
BIRMINGHAM, Ala.- A federal judge in Georgia on Jan. 23 denied motions for summary judgment filed by two companies arguing that 14 lawsuits for personal injuries and property damage caused by the operation of a pipe-making facility are time-barred, holding that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) commencement date could be applied to the plaintiffs' claims (William Abner v. United States Pipe & Foundry Co., No. 15-cv-02040-KOB, N.D. Ala., 2018 U.S. Dist. LEXIS 10146).

Judge: Former Owner Of Contaminated Site Must Pay For 75 Percent Of Cleanup
FORT WAYNE, Ind. - A federal judge in Indiana on Jan. 16 reduced by $500,000 the amount a company owner can recover for cleaning up a former steel manufacturing site and ruled that the former owner and operator is liable for 75 percent of past and future response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because it has not taken any steps to remediate the contamination and has refused the plaintiff company's requests for assistance (Valbruna Slater Steel Corporation, et al. v. Joslyn Manufacturing Company, et al., No. 10-cv-44-JD, N.D. Ind., 2018 U.S. Dist. LEXIS 7063).

Judge: Government, State Can Seek Future Response Costs For Superfund Site
GREEN BAY, Wis. - The federal government and state of Wisconsin can pursue claims for future response costs from a company that has not settled a lawsuit stemming from the remediation of the Lower Fox River Superfund site, a federal judge in Wisconsin ruled Feb. 5 in granting in part the plaintiffs' motion for partial summary judgment (United States of America, et al. v. NCR Corp., et al., No. 10cv910, E.D. Wis., 2018 U.S. Dist. LEXIS 18408).

Judge: Settlement Cannot Be Enforced Until City Resolves Insurance Dispute
FRESNO, Calif. - A federal judge in California on Feb. 2 denied a landowner's motion to enforce a settlement agreement with a city accused of contributing to perchloroethylene (PCE) contamination, finding that the city must first resolve a dispute with its insurance carriers to obtain coverage (Gary Coppola, et al. v. Gregory Smith, et al., No. 11-CV-1257 AWI BAM, E.D. Calif., 2018 U.S. Dist. LEXIS 17769).

Massachusetts High Court Reinstates Association's Contamination Suit Against City
BOSTON - A panel of Massachusetts Supreme Court judges on Jan. 19 reinstated a condominium association's lawsuit against a city that previously used the site as a landfill, finding that the association's lawsuit was timely (Grand Manor Condominium Association v. City of Lowell, No. SJC-12294, Mass. Sup., 2018 Mass. LEXIS 15).

Firm Barred From Filing Summary Judgment Motions In Contamination Dispute
CHICAGO - A federal judge in Illinois on Jan. 29 banned a private equity firm from filing any future motions for summary judgment absent good cause and leave from the court after denying a motion seeking dismissal of Honeywell International Inc.'s counterclaim for indemnification for the cleanup of benzene and vinyl chloride contamination at a site in Muncie, Ind. (Hammond Kennedy Whitney & Co. Inc. v. Honeywell International Inc., No. 16-cv-9808, N.D. Ill., 2018 U.S. Dist. LEXIS 13917).

Monsanto Lacks Standing To Assert Counterclaims Over PCB Contamination, Judge Says
SAN DIEGO - Monsanto Co. and its subsidiaries lack standing to assert counterclaims for response costs, defense costs and contingent liability, a federal judge in California ruled Jan. 30, finding that costs incurred in defending a lawsuit over polychlorinated biphenyl (PCB) contamination do not constitute an injury-in-fact (San Diego Unified Port District v. Monsanto Company, et al., No. 15cv578, S.D. Calif., 2018 U.S. Dist. LEXIS 14996).

Bankruptcy Judge Abstains From Hearing Injunction Bid For Environmental Claims
NEWARK, N.J. - A New Jersey federal bankruptcy judge on Jan. 26 abstained from deciding a request by former Chapter 11 debtor G-I Holdings Inc. to enforce its reorganization plan injunction to bar indemnification claims for cleanup of a polluted industrial site, saying a state court is "fully capable of adjudicating" the claims and G-I's injunction bid (In re: G-I Holdings, Inc., et al., Nos. 01-30135 and 01-38790, D. N.J. Bkcy., 2018 Bankr. LEXIS 214).

Winemaker Agrees To Pay $330,000 For Deadly Ammonia Leak
FRESNO, Calif. - Gibson Wine Co. on Jan. 29 entered into an agreement with the U.S. Department of Justice and U.S. Environmental Protection Agency in which it said it would pay a $330,000 civil penalty and spend $300,000 to make improvements to its facility following a deadly leak of anhydrous ammonia at its Sanger, Calif., site (United States of America v. Gibson Wine Co., No. 15-cv-1900, E.D. Calif.).

New York High Court To Decide If Coverage Due For Time No Insurance Was Available
ALBANY, N.Y. - After hearing oral arguments on Feb. 6, the New York Court of Appeals is set to decide whether an excess insurer owes coverage to its insured for the time periods when the insured was unable to purchase environmental liability insurance coverage even if the excess insurer's policies specifically stated that coverage is afforded only for damages occurring during the policy period (KeySpan Gas East Corp. v. Munich Reinsurance America Inc., et al., No. APL-2016-00236, N.Y. App.).

Federal Judge Denies Motion To Strike In Contamination Coverage Dispute
TOLEDO, Ohio - An Ohio federal judge on Jan. 9 denied a motion to strike a deposition in an environmental contamination coverage dispute after determining that the insurers and the insureds agreed to extend the discovery deadline for the deposition to a time outside of the discovery deadline set by the court (Hartford Accident and Indemnity Co. et al., v. FFP Holdings LLC et al., No. 15-377, N.D. Ohio, 2018 U.S. Dist. LEXIS 3810).

No Coverage Due For Clean Air Act Violations, New York Panel Says
ROCHESTER, N.Y. - The Fourth Department New York Supreme Court Appellate Division on Feb. 2 determined that a trial court properly found that no coverage is owed under professional liability and environmental professional liability policies for a criminal action filed against an insured and arising out of alleged violation of the Clean Air Act because the criminal action does not constitute a suit for which coverage is provided (Certified Environmental Services Inc. v. Endurance America Insurance Co., et al., No. 1510 CA 17-01125, N.Y. Sup., App. Div., 4th Dept., 2018 N.Y. App. Div. LEXIS 704).

Missouri Appeals Panel Says No Coverage Afforded For Release Of Methane Gas
ST. LOUIS - The Eastern District Missouri Court of Appeals on Dec. 19 affirmed that no coverage exists for the release of methane gas caused by an insured's remediation of a landfill site because the release did not occur during the effective policy coverage period (Hazelwood Logistics Center LLC v. Illinois Union Insurance Co., No. ED105571, Mo. App., Eastern Div., Div. 1, 2017 Mo. App. LEXIS 1328).

1st Circuit: Company Could Not Foresee Risk Of PCB-Containing Caulk
BOSTON - Pharmacia Corp. could not have foreseen that an additive it manufactured containing polychlorinated biphenyl (PCB) that was used in caulk would have posed a risk to human health at the time the product was used in a Massachusetts middle school in 1969, a First Circuit U.S. Court of Appeals panel ruled Dec. 8 in affirming a federal judge's dismissal of a town's claims for breach of warranty and negligent marketing (Town of Westport, et al. v. Monsanto Co., et al., No. 17-1461, 1st Cir., 2017 U.S. App. LEXIS 24827).

Judge Gives Group Limited Access To EPA Documents About PCB Contamination
WASHINGTON, D.C. - A nonprofit group on Dec. 11 was given full access to four U.S. Environmental Protection Agency documents and limited information in two agency documents regarding suspected polychlorinated biphenyl (PCB) contamination at the Santa Monica Malibu Unified School District (SMMUSD) by a federal judge in the District of Columbia who found that the records did not contain information that was subject to the deliberative process privilege (Public Employees for Environmental Responsibility v. U.S. Environmental Protection Agency, No. 14-2056, D. D.C., 2017 U.S. Dist. LEXIS 203068).

Oregon Sues Monsanto, Seeks Over $100M For PCB Cleanup
PORTLAND, Ore. - The state of Oregon on Jan. 4 filed suit in state court against Monsanto Co., Pharmacia Corp. and Solutia Inc., seeking more than $100 million in damages to clean up contamination in the state's groundwater and soil resulting from the companies' manufacturing of polychlorinated biphenyls (PCBs) (State of Oregon v. Monsanto Co., et al., No. 18CV00540, Ore. Cir., Multnomah Co.).

Washington High Court: Soil Testing Is A Remedial Action, Cost Recovery Limited
OLYMPIA, Wash. - The Washington Supreme Court on Dec. 21 found that a couple can attempt to recover the costs they incurred when investigating lube oil contamination on their property pursuant to the Model Toxic Control Act (MTCA), but a trial court judge must determine the amount, if any, a paving company must reimburse them (Harlan D. Douglass, et al. v. Shamrock Paving Inc., No. 94087-8, Wash. Sup., 2017 Wash. LEXIS 1149).

Montana High Court Finds CERCLA Does Not Preempt Restoration Damages Claim
HELENA, Mont. - A 6-1 Montana Supreme Court on Dec. 29 found that property owners who live near the Anaconda Smelter Superfund site can seek restoration damages for arsenic contamination on their properties after finding that the cause of action is not preempted by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Atlantic Richfield Co. v. Montana Second Judicial District Court, Silver Bow County, et al., No. 16-0555, Mont. Sup., 2017 Mont. LEXIS 730).

Judge: Consent Decree Bars Solvent Maker's Third-Party Contribution Claims
CENTRAL ISLIP, N.Y. - A federal judge in New York on Dec. 15 ruled that a solvent maker cannot pursue third-party claims for cost recovery and contribution under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) against 58 companies that entered into a consent decree with the state of New York over contamination at a landfill, holding that the agreement bars the solvent maker's claims (State of New York, et al. v. Pride Solvents & Chemical Co., et al., No. 15-CV-6569, E.D. N.Y., 2017 U.S. Dist. LEXIS 206678).

6th Circuit Says Association's Request To Intervene In Cleanup Suit Untimely
CINCINNATI - A Sixth Circuit U.S. Court of Appeals panel on Dec. 22 denied the Tennessee Valley Public Power Association's (TVPPA) motion to intervene in an appeal of a federal judge in Tennessee's decision to order the Tennessee Valley Authority (TVA) to cleanup a coal ash waste site, holding that the request was untimely (Tennessee Clean Water Network, et al. v. Tennessee Valley Authority, No. 17-6155, 6th Cir., 2017 U.S. App. LEXIS 26330).

Group's Presuit Notification Was Sufficient In Suit Over Discharges, Judge Rules
SAN DIEGO - A federal judge in California on Dec. 8 refused to dismiss an environmental group's Clean Water Act lawsuit against the operator of a salvage yard, finding that the group's presuit notification was sufficient and that it adequately alleged that the defendant is failing to comply with its National Pollutant Discharge Elimination System (NPDES) permit for storm water discharges (Coastal Environmental Rights Foundation v. American Recycling International Inc., No. 17-cv-00425-BAS-JMA, S.D. Calif., 2017 U.S. Dist. LEXIS 202649).

Groups' Suit Over Discharges Dismissed Over Wrong Date On Presuit Notice
BIRMINGHAM, Ala. - An inaccurate date on a notice of intent submitted by two environmental groups to the owner of a decommissioned landfill before filing a lawsuit under the Clean Water Act was fatal to their claims, a federal judge in Alabama ruled Dec. 18, holding that the notice requirements must be strictly adhered to (Black Warrior Riverkeeper Inc., et al. v. Metro Recycling Inc., No. 17-cv-01050-LSC, N.D. Ala., 2017 U.S. Dist. LEXIS 207011).

Judge Dismisses Groups' Suit Over Energy Company's Coal Ash Discharges
LEXINGTON, Ky. - A federal judge in Kentucky on Dec. 28 dismissed with prejudice a claim brought by two environmental groups contending that Kentucky Utilities Co. (KU) is violating the Clean Water Act by allowing storm water containing pollutants from its coal-ash settlement ponds to migrate into a navigable waterway, holding that the discharges are not subject to the act's National Pollutant Discharge Elimination System (NPDES) permit requirements (Kentucky Waterways Alliance, et al. v. Kentucky Utilities Co., No. 17-cv-292-DCR, E.D. Ky., 2017 U.S. Dist. LEXIS 212329).

Magistrate Judge: Recycling Company Does Not Need Stormwater Runoff Permit
CENTRAL ISLIP, N.Y.- A company that recycles demolished concrete, asphalt and masonry materials does not need to apply for a State Pollution Discharge Elimination System (SPDES) permit for storm water runoff, a federal magistrate judge in New York ruled Dec. 29, finding that the company does not engage in industrial activity that warrants the permit (Sierra Club v. Con-Strux LLC, et al., No. 16-4960, E.D. N.Y., 2017 U.S. Dist. LEXIS 213309).

California Appeals Court Says No Special Causation Standard For Polanco Act Claims
SAN FRANCISCO - A California appeals panel on Jan. 8 reversed a trial court judge's ruling that a special causation standard applies to companies accused of being responsible parties for contamination under the Polanco Redevelopment Act, finding that a plaintiff must show only that the manufacturer's improper instructions on disposal were a factor in the contamination (City of Modesto v. Dow Chemical Co., et al., No. A134419, Calif. App., 1st Dist., 4th Div., 2018 Calif. App. LEXIS 13).

5th Circuit Affirms Gas Retailer's $58.4M Award From Settlement Agreement
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Dec. 14 affirmed a federal judge in Louisiana's decision to award a gasoline retailer $58.4 million under the Deepwater Horizon Economic and Property Damages Settlement Agreement, finding that the judge did not err when finding that the company was not excluded from the settlement agreement (BP Exploration & Production Inc., et al. v. Claimant ID 100211268, No. 16-31118, 5th Cir.).

5th Circuit Affirms Denial Of Oil Spill Claim For Related Transactions Revenue
NEW ORLEANS - A federal judge in Louisiana did not err when refusing to review the denial of a man's claim for compensation under the Deepwater Horizon Economic & Property Damages Settlement Agreement, a Fifth Circuit U.S. Court of Appeals panel ruled Jan. 9, finding that a policy in the agreement excludes transactions that are not arm's length transactions as revenue (Claimant ID 100190818 v. BP Exploration & Production Inc., et al, No. 17-30099, 5th Cir.).

Magistrate Judge Transfers Dispersant Exposure Injury Suit To Mississippi
NEW ORLEANS - A federal magistrate judge in Louisiana on Dec. 6 transferred to Mississippi federal court a lawsuit filed by man who claims that he developed reactive airways dysfunction syndrome as a result of his exposure to dispersants used to clean up the oil spill in the Gulf of Mexico that followed the explosion of the Deepwater Horizon oil rig, finding that moving the suit would be more convenient for his health care providers (Kevin Harriel v. BP Exploration & Production Inc., et al., No. 17-7024, E.D. La., 2017 U.S. Dist. LEXIS 200604).

Sierra Club, Company Briefs Dispute Liability For Groundwater Contamination
RICHMOND, Va. - The Sierra Club and a Virginia power company filed competing briefs on Dec. 7 in the Fourth Circuit U.S. Court of Appeals, arguing that a lower court erred in its ruling on the environmental group's groundwater contamination claim. The Sierra Club contends that the company should pay penalties and is liable for violations of federal law, while the company says it is not liable for any pollution (Sierra Club v. Virginia Electric & Power Company f/k/a Dominion Virginia Power, No. 17-1895, 4th Cir.).

New Jersey Appeals Court Affirms Company's $180,000 Penalty For Waste Violations
TRENTON, N.J. - The New Jersey Department of Environmental Protection (NJDEP) did not err when imposing a $180,000 penalty against a company for illegally storing hazardous waste in violation of New Jersey's Solid Waste Management Act and Spill Compensation and Control Act, a state appeals panel ruled Dec. 20, finding that there was no evidence disputing that the defendant company was liable for the violations (New Jersey Department of Environmental Protection v. Yates Foil USA Inc., et al., No. A-0874-15T1, N.J. Super., App. Div., 2017 N.J. Super. Unpub. LEXIS 3129).

Appeals Court Allows PDF Versions Of Spreadsheets In Attorney Fees Dispute
LAKE CHARLES, La. - An oil company that was ordered to remediate a property owned by a school board cannot have access to native format Excel spreadsheets the school board submitted in support of its request for attorney fees, a Louisiana appeals panel ruled Dec. 20, holding that while it is burdensome for the company to convert the files for searching, it is not clear how it would use the metadata to defend against the school board's request (State of Louisiana, et al. v. Louisiana Gas & Exploration Co., et al., No. 17-755, La. App., 3rd Cir., 2017 La. App. LEXIS 2381).

New York City Sues 5 Oil Companies Over Climate Change
NEW YORK- The city of New York on Jan. 9 filed a lawsuit in federal court against five oil companies, claiming that the companies are responsible for climate change and seeking to recover damages to the city's infrastructure (City of New York v BP PLC, et al., No. 18-CV-00182, S.D. N.Y.).

Insurer's Failure To Exclude Parties Was A Mistake, 3rd Circuit Says In Affirming
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Dec. 14 affirmed a New Jersey federal judge's ruling in favor of an insurer in an environmental contamination dispute after determining that the insurer's failure to exclude coverage to certain parties involved in the contamination dispute clearly was a mistake or scrivener's error (Indian Harbor Insurance Co. v. NL Environmental Management Services Inc., et al., Nos. 16-3262, 16-3293, 3rd Cir., 2017 U.S. App. LEXIS 25277).

Insurer Properly Denied Coverage Based On 'Claims In Process' Exclusion
CHICAGO - An insurer properly denied coverage for environmental contamination cleanup costs based on the policies' "claims in process" exclusion because the damages for which the insureds sought coverage occurred before the inception date of the applicable policies, the Seventh Circuit U.S. Court of Appeals said Dec. 22 (Atlantic Casualty Insurance Co. v. Juan Garcia, et al., No. 17-1224, 7th Cir., 2017 U.S. App. LEXIS 26307).

Panel Says Insured Proved Existence Of Missing Policies In Contamination Dispute
CHICAGO - The First District Illinois Appellate Court on Dec. 29 affirmed a trial court's ruling that an insured seeking coverage for underlying environmental contamination lawsuits proved the existence of missing insurance policies under which it seeks coverage (The Travelers Indemnity Co., et al. v. Rogers Cartage Co., No. 1-16-0780, Ill. App., 1st Dist., 2017 Ill. App. LEXIS 829).

Court Properly Dismissed Insurer's Suit In Favor Of Insured's New Jersey Suit
CHICAGO - The First District Illinois Appellate Court on Dec. 27 affirmed a trial court's dismissal of an insurer's suit seeking a declaration regarding its coverage obligations for environmental contamination after determining that the trial court weighed all relevant factors before concluding that the coverage dispute should be litigated in New Jersey where the insured's suit is pending (The Travelers Indemnity Co., et al. v. Tate & Lyle Ingredients Americas LLC, et al., No. 1-17-1195, Ill. App., 1st Dist., 3rd Div., 2017 Ill. App. Unpub. LEXIS 2774).