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LexisNexis® Mealey's™ Pollution Liability Legal News
Headline Pollution Liability Legal News from LexisNexis®
Judge Finds Property Owner Can Pursue Cost-Recovery Claims, But Not Nuisance
DAYTON, Ohio - A federal judge in Ohio on Feb. 15 ruled that Garrett Day LLC and the Ohio Development Services Agency (DSA) can pursue claims for cost recovery under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Ohio Volunteer Action Program (VAP) but that they could not pursue a claim for common-law nuisance because they do not own land adjacent to the contamination (Garrett Day, LLC, et al. v. International Paper, Inc., et al., No. 15-cv-36, S.D. Ohio, 2017 U.S. Dist. LEXIS 21643).
Judge: Previous Settlements Do Not Bar Government's Cost Recovery Suit
OKLAHOMA CITY - The federal government's previous settlements with the former owner of a now-defunct oil refinery site that contributed to contamination of the Skull Creek in Cushing, Okla., does not bar it from pursuing a cost recovery claim under the Comprehensive Environmental Response, Compensation, and Liability Act against another former owner, a federal judge in Oklahoma ruled Feb. 22 in granting the government's motion to strike counterclaims asserted by the defendant companies (United States of America v. Land O'Lakes, Inc., et al., No. CIV-16-170-R, W.D. Okla., 2017 U.S. Dist. LEXIS 24305).
Bankruptcy Settlement Does Not Bar ASARCO's Contribution Claim, Judge Finds
COEUR D'ALENE, Idaho - The presence of genuine issues of material fact as to whether parties entered into a bankruptcy settlement with ASARCO LLC with the intention of barring the company from pursuing contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act prevented a federal judge in Idaho on Feb. 16 from fully granting a motion for summary judgment filed by Union Pacific Railway (ASARCO, LLC v. Union Pacific Railway, et al., No. 12-cv-283, D. Idaho, 2017 U.S. Dist. LEXIS 23199).
D.C. Circuit Says It Has No Jurisdiction Over Challenge To EPA Statement
WASHINGTON, D.C. - A panel of the District of Columbia Circuit U.S. Court of Appeals on Feb.28 found that it does not have jurisdiction over a group's challenge to a statement from the U.S. Environmental Protection Agency that it would not acquiesce to an Eighth Circuit U.S. Court of Appeals ruling on policies the agency implemented on the discharge of water from publicly owned water treatment facilities outside the circuit, holding that the statement was not a rule that could be challenged in the appeals court (Center for Regulatory Reasonableness v. U.S. Environmental Protection Agency, No. 14-1150, D.C. Cir., 2017 U.S. App. LEXIS 3576).
Federal Judge Orders EPA To Respond To Petitions Challenging Permit Requests
WASHINGTON, D.C. - The U.S. Environmental Protection Agency must respond by June 30 to two petitions challenging the approval of two Clean Air Act (CAA) permits for power plants in North Carolina, a federal judge in the District of Columbia ruled March 2, finding that the agency failed to discharge its nondiscretionary duty to address the request within 60 days (Sierra Club v. Scott Pruitt, in his official capacity as Administrator of the U.S. Environmental Protection Agency, No. 16-2238, D. D.C., 2017 U.S. Dist. LEXIS 29451).
Judge Finds Navistar Liable For Selling Engines Without Certificate Of Compliance
CHICAGO - A federal judge in Illinois on March 1 found that Navistar Inc. and Navistar Financial Corp. are liable for violating the Clean Air Act (CAA) by selling 7,749 engines in 2010 without certificates of compliance, finding that the engines were not subject to a certificate issued to the companies in 2009 because they were not saleable (United States of America v. Navistar, Inc., et al., 15 CV 6143, N.D. Ill., 2017 U.S. Dist. LEXIS 28600).
Judge Adopts Recommendation To Award $1.5M In Attorney Fees To Groups
BILLINGS, Mont. - A federal judge in Montana on Feb. 15 adopted a magistrate judge's recommendation to award $1.5 million in attorney fees to environmental groups that partially prevailed in a suit accusing companies of violating the Clean Air Act (CAA), finding that the plaintiff groups were prevailing parties (Sierra Club, et al. v. Talen Montana, LLC, et al., No. CV 13-32-BLG-DLC-JCL, D. Mont., 2017 U.S. Dist. LEXIS 21515).
Judge Overrules Tribe's Objections To Consent Decree Over Facility's Emissions
SAN FRANCISCO - A federal judge in California on Feb. 23 overruled objections from the Blue Lake Rancheria Tribe that a consent decree between the federal government and Blue Lake Power LLC to resolve claims that the company violated the Clean Air Act (CAA) was unreasonable, ruling that the agreement would reduce emissions and have long-lasting benefits to the public (United States of America v. Blue Lake Power, LLC, No. 16-cv-00961-JD, N.D. Calif., 2017 U.S. Dist. LEXIS 25662).
5th Circuit Upholds Amount Awarded To Startup Business In Oil Spill Settlement
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Feb. 17 found that a federal judge in Louisiana did not abuse his discretion when refusing to review a business's appeal of the Court Supervised Settlement Program's (CSSP) decision that it should receive $29,567.81 as part of the Deepwater Horizon Economic and Property Damages Settlement (E&P Settlement), holding that the plaintiff company was a startup business under the terms of the settlement agreement (Claimant ID 100009540 v. BP Exploration & Production, Inc., et al., No. 15-30964, 5th Cir.).
5th Circuit: Auto Parts Stores Were Not Tourism Businesses For Settlement Purposes
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel ruled Feb. 9 that a federal judge in Louisiana did not err when refusing to review the denial of five auto parts stores' requests for compensation under the Deepwater Horizon Economic and Property Damages Settlement, holding that the Court Supervised Settlement Program (CSSP) properly found that the stores were not tourism businesses that were not required to show causation (Claimant ID 100212278 v. BP Exploration & Production, Inc., et al., No. 16-30102, 5th Cir.).
Judge Finds Proposed Class Has Standing To Sue Over Defeat Devices
BAY CITY, Mich. - A federal judge in Michigan on Feb. 14 granted in part and denied in part a motion to dismiss a class action lawsuit of purchasers of 2015 Chevrolet Cruze diesel vehicles that contained a defeat device designed to cheat emissions tests, finding that the plaintiffs had standing and that the case should not be stayed pending an investigation by the U.S. Environmental Protection Agency (Jason Counts, et al. v. General Motors, LLC, No. 16-cv-12541, E.D. Mich., 2017 U.S. Dist. LEXIS 20277).
Judge: MDL Court Can Rule On Jurisdictional Issues In Volkswagen Emissions Suit
SACRAMENTO, Calif. - A federal judge in California on March 7 stayed a consumer's lawsuit over the installation of defeat devices in some of Volkswagen Group of America Inc.'s diesel vehicles pending transfer to a multidistrict litigation court, finding that the MDL court can determine if jurisdictional issues warrant remanding the action to state court (Pamela Woodcox, et al. v. Volkswagen Group of America, Inc., d/b/a Volkswagen of America, Inc., et al., No. 17-215 WBS DB, E.D. Calif., 2017 U.S. Dist. LEXIS 32609).
Texas High Court: Lower Court Should Decide If ExxonMobil Should Clean Up Site
AUSTIN, Texas - The Texas Supreme Court held Feb. 24 that a lower court judge should determine if a landowner can seek an order requiring ExxonMobil Corp. to remediate two sites where it conducted oil drilling and production operations, finding that the issue was not properly raised on appeal (ExxonMobil Corporation v. Lazy R. Ranch, LP, et al., No. 15-0270, Texas Sup., 2017 Tex. LEXIS 210).
3M: Groundwater Case Fails; Any Alleged Injuries Stem From Acts Beyond Control
BIRMINGHAM, Ala. - On Feb. 24, 3M Co. filed its answer to a lawsuit brought against it for groundwater contamination, in which it denies any liability and argues that the claim fails because the company has "not caused or contributed to an imminent and substantial endangerment to health or the environment" (Tennessee Riverkeeper Inc. v. 3M Company, et al., No. 16-1029, N.D. Ala.).
Company: Jury Trial Brief In Groundwater Case Relies On 'Misrepresentations'
FRESNO, Calif. - A dry cleaning company on Feb. 10 filed a brief in California federal court arguing that the city of Visalia, Calif.'s brief seeking a jury trial in a lawsuit brought by a couple seeking remediation costs associated with tetrachloroethylene (PCE) contamination of groundwater "relies on a series of misrepresentations to support its argument" (Viola Coppola, et al. v. Gregory Smith, et al., No. 11-cv-01257, E.D. Calif.).
Judge Awards $22M To Seller Over Property Buyer's Failure To Continue Cleanup
SEATTLE - A federal judge in Washington on Feb. 10 entered default judgment against a property buyer that has failed to continue environmental remediation of a 16-acre site it purchased from a plaintiff company in 2014 and awarded the plaintiff $22 million in compensatory damages (8th Avenue Terminals, Inc. v. DeNovo Seattle LLC, No. C16-1964, W.D. Wash., 2017 U.S. Dist. LEXIS 19363).
Groups: EPA Emergency Action Needed For Lead Contamination In East Chicago, Ind.
WASHINGTON, D.C. - A collection of community groups, the NAACP and the Natural Resources Defense Council (NRDC) on March 2 filed notice of petition with the U.S. Environmental Protection Agency seeking emergency action to abate "the imminent and substantial endangerment" to East Chicago, Ind., posed by lead contamination of drinking water.
Judge: Seattle's Case Against Monsanto Valid; PCB Design Defect Claim Dismissed
SEATTLE - A federal judge in Washington on Feb. 22 dismissed one cause of action but ruled that the majority of claims brought by the city of Seattle against Monsanto Co. for allegedly contaminating its groundwater with polychlorinated biphenyls (PCBs) were valid (City of Seattle v. Monsanto Company, et al., No. 16-cv-00107, W.D. Wash.).
Judge: Monsanto's Claim For Recovery Of Costs Related To PCB Contamination Fails
SPOKANE, Wash. - A federal judge in Washington on Feb. 14 dismissed a counterclaim brought by Monsanto Co. and its affiliates against the city of Spokane, ruling that the company failed to state a claim for recovering costs from the city for remediating its groundwater, which is contaminated with polychlorinated biphenyls (PCBs) (City of Spokane v. Monsanto Company, et al., No. 15-00201, E.D. Wash.; 2017 U.S. Dist. LEXIS 20846).
Judge Consolidates State's, Government's Suits Seeking Clean Water Act Penalties
OMAHA, Neb. - A federal judge in Nebraska on Feb. 28 consolidated lawsuits filed by the federal government and state of Nebraska seeking to recover a $2.2 million judgment against a company accused of violations of the Clean Water Act (CWA) and state law, finding that the actions arise out of the same factual scenario (United States of America v. Stabl, Inc., et al., No. 16CV233, State of Nebraska v. Stabl, Inc., et al., No. 16CV351, D. Neb., 2017 U.S. Dist. LEXIS 28875).
Judge Adopts Recommendation To Approve Settlement In Clean Water Act Suit
NEW YORK - A federal judge in New York on March 3 adopted a magistrate judge's recommendation that a settlement between the federal government and the New York Racing Association to resolve a Clean Water Act (CWA) suit is fair and reasonable (United States of America v. The New York Racing Association, No. 16 CV 5442, E.D. N.Y., 2017 U.S. Dist. LEXIS 30368).
North Dakota Appeals Ruling Denying Right To Intervene In Fracking Disposal Case
WASHINGTON, D.C. - The state of North Dakota on Jan. 25 filed a notice of appeal in the District of Columbia Circuit U.S. Court of Appeals, arguing that a lower court's denial of its motion to intervene in a lawsuit brought by environmental advocacy groups against the U.S. Environmental Protection Agency related to the disposal of waste from hydraulic fracturing should be reversed (Environmental Integrity Project, et al. v. Scott Pruitt, No. 17-5010, D.C. Cir.).
Judge Dismisses Breach Of Covenant Of Good Faith Claim As Redundant
NEW YORK - A federal judge in New York on Feb. 27 dismissed an alleged insured's breach of the covenant of good faith claim because it is redundant to a breach of contract claim (JD2 Environmental, Inc. v. Endurance American Insurance Company, No. 14-cv-8888, S.D. N.Y., 2017 U.S. Dist. LEXIS 26977).
Insurers' Suit Is Not A Parallel Suit; Federal Judge Denies Motion To Dismiss
ST. LOUIS - A Missouri federal judge on March 3 denied an insured's motions to stay and to dismiss an environmental contamination coverage suit filed by insurers after determining that the insurers' suit is different from a suit filed in Missouri state court by the insured (Clearwater Insurance Co., et al. v. The Doe Run Resources Corp., et al., No. 16-195, E.D. Mo., 2017 U.S. Dist. LEXIS 30230).
Washington Federal Judge Dismisses Third-Party Claims Against Insurer
SEATTLE - A Washington federal judge on March 1 granted a motion to dismiss third-party claims against a group of insurers after determining that the insured's settlement with the group of insurers was reasonable and would not cause another insurer involved in the environmental contamination coverage dispute to shoulder an unreasonable burden (King County v. Travelers Indemnity Co., et al., No. C14-1957, W.D. Wash., 2017 U.S. Dist. LEXIS 29153).
Washington Federal Judge Denies Motion For Summary Judgment On Bad Faith Claims
SEATTLE - A Washington federal judge on Feb. 13 denied an insurer's motion for summary judgment on an insured's claims for bad faith in an environmental coverage dispute because the judge previously found that the insurer breached its duty to defend and any estoppel argument is now irrelevant to the disposal of the insured's bad faith claims (King County v. Travelers Indemnity Co., et al., No. C14-1957, W.D. Wash.).
7th Circuit Says It Lacks Jurisdiction Over Appeals Of Discovery Rulings
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Jan. 31 denied appeals from a company in a suit brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), finding that it lacked jurisdiction to review three rulings on motions seeking discovery from a nonparty company based in England (P.H. Glatfelter Co. v. Windward Prospects Ltd., Nos. 15-3847, 16-1197, 16-1310, 7th Cir., 2017 U.S. App. LEXIS 1707).
Judge Denies EPA Contractor's Motion To Expedite Dismissal Of Mine Spill Suit
ALBUQUERQUE, N.M. - A federal judge in New Mexico on Jan. 23 denied a motion for expedited dismissal of a lawsuit brought by the state of New Mexico over the Gold King mine spill that resulted in the discharge of more than 3 million gallons of acid mine drainage and 880,000 pounds of heavy metals into the Animas River watershed, ruling that briefing should first be completed as to the state's motion to file an amended complaint (State of New Mexico v. U.S. Environmental Protection Agency, et al., No. 16-CV-465, consolidated with No. 16-CV-931, D. N.M.; 2017 U.S. Dist. LEXIS 8943).
Appeals Court Orders New Trial After Finding Oil Repair Estimate Inadmissible
LITTLE ROCK, Ark. - An Arkansas appeals panel on Jan. 18 reversed a trial court judge's ruling ordering a defendant to pay $28,200 to remediate an oil spill on farmland he leased from his stepfather, finding that the repair estimate relied on by the plaintiff was inadmissible hearsay (Barry Jones, d/b/a Borderline Farms v. John B. Dozier Land Trust, et al., No. CV-16-378, Ark. App., Div. 4; 2017 Ark. App. LEXIS 23).
Magistrate Judge: Information Created During ADR Process Is Not Discoverable
NEWARK, N.J. - A federal magistrate judge in New Jersey on Feb. 7 denied a motion to compel filed by a third-party defendant company in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit seeking information from another third party, holding that information created as part of an alternative dispute resolution (ADR) process is not discoverable (New Jersey Department of Environmental Protection, et al. v. American Thermoplastics Corp., et al., No. 98-CV-4781, D. N.J., 2017 U.S. Dist. LEXIS 16743).
Deal Reached To Clean Up Shuttered Uranium Mines On Navajo Lands
PHOENIX - The Navajo Nation and the United States have agreed to settle their claims against two mining companies for cleanup of 94 abandoned uranium mines on Navajo lands, with the companies performing the work and the United States contributing about half the estimated $600 million in costs, according to a consent decree filed Jan. 17 in Arizona federal court (United States of America v. Cyprus Amax Minerals Company, et al., No. 2:17-cv-140, Navajo Nation v. Cyprus Amax Minerals Company, et al., No. 3:17-cv-8007, D. Ariz.).
Judge: Modifications On Boilers Without Permit Violated Clean Air Act
ST. LOUIS - A federal judge in Missouri on Jan. 23 ruled that Ameren Missouri violated the Clean Air Act (CAA) when making major modifications to two coal-fired burners at its Rush Island facility in Festus, Mo., without first obtaining a prevention of significant deterioration (PSD) permit, ruling that the repairs were not routine maintenance and increased emissions of sulfur dioxide (SO2) (United States of America v. Ameren Missouri, No. 11 CV 77 RWS, E.D. Mo.; 2017 U.S. Dist. LEXIS 8997).
Judge Finds $3M Civil Penalty For Oil Spills Is Not Recoverable
SALT LAKE CITY - Chevron Pipeline Co. (CPL) cannot attempt to recover a portion of a $3 million civil penalty it paid to the Utah Water Quality Board (UWQB) and Salt Lake City to resolve violations of the Utah Water Quality Act (UWQA) and Oil Pollution Act of 1990 (OPA) that stemmed from two pipeline leaks in 2010, a federal judge in Utah ruled Jan. 27, holding that the money cannot be recovered from third parties under either act (Chevron Pipeline Company v. Pacificorp, d/b/a Rocky Mountain Power, No. 12-CV-287, D. Utah; 2017 U.S. Dist. LEXIS 11778).
5th Circuit Uphold Judge's Denial Of Radiology Firm's Appeal Of Rejected Claim
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Jan. 25 affirmed a federal judge in Louisiana's decision denying a radiology firm's appeal of the denial of its claim for benefits under the Business and Economic Loss framework (BEL) of the Deepwater Horizon Economic Loss and Property Damage Settlement Agreement, finding that the firm does not own a facility under the settlement agreement (Claimant ID 100250022 v. BP Exploration & Production Inc., et al., No. 16-30258, 5th Cir.).
Judge Denies Monsanto's Motion To Dismiss Cities' Public Nuisance Suits
SAN JOSE, Calif. - A federal judge in California on Feb. 3 denied a motion filed by Monsanto Co., Solutia Inc. and Pharmacia LLC seeking dismissal of lawsuits brought by the cities of Berkley, San Jose and Oakland, Calif., over polychlorinated biphenyl (PCB) contamination in the San Francisco Bay, finding that the plaintiff cities sufficiently stated claims for public nuisance (City of San Jose v. Monsanto Company, et al., No. 15-cv-03178, City of Oakland v. Monsanto Company, et al., No. 15-cv-05152, City of Berkeley v. Monsanto Company, et al., No. 15-cv-00071, N.D. Calif.).
Panel Certifies 2 Questions To N.Y. High Court In Dispute Arising From 9/11 Attacks
NEW YORK - The Second Circuit U.S. Court of Appeals on Jan. 19 certified two questions to the New York Court of Appeals in a dispute over whether a public benefit corporation has the capacity to challenge as unconstitutional a New York statute that revived claims against public corporations for personal injuries incurred during the rescue, recovery and cleanup efforts following the Sept. 11, 2001, terrorist attacks (In re: World Trade Center Lower Manhattan Disaster Site Litigation, Nos. 15-2181, 15-2283, 15-2285, 15-2487, 15-2506 and 15-2687, 2nd Cir.).
Judge Trims Claims From City's Suit Over Manufactured Gas Waste Contamination
CHICAGO - An Illinois city cannot seek civil penalties under the Resource Conservation and Recovery Act (RCRA) against two companies that owned a manufactured gas facility, a federal judge in Illinois ruled Jan. 17, holding that the city did not allege that the companies violated subchapter III of the RCRA (City of Evanston, Ill. v. Northern Illinois Gas Company, et al., No. 16-C-5692, N.D. Ill.; 2017 U.S. Dist. LEXIS 5771).
Judge: Separate Trial Not Warranted In Case About Water Contamination
PITTSBURGH - A federal judge in Pennsylvania on Jan. 23 denied a motion by a third-party defendant seeking to try third-party claims separately in a case where two environmental advocacy groups sued a glass manufacturer for groundwater contamination, finding that the third-party defendant did not show that separate trials were necessary (PennEnvironment, et al. v. PPG Industries Inc., et al., No. 12-342, W.D. Pa.; 2017 U.S. Dist. LEXIS 8683).
Judge: Diligent Prosecution Bar Precludes Group's Suit Over Wastewater Discharges
SELMA, Ala. - A federal judge in Alabama on Jan. 24 awarded summary judgment to a company accused of violating the Clean Water Act (CWA), after finding that the diligent prosecution bar precludes an environmental group from bringing a citizen suit under the act (Black Warrior Riverkeeper v. Southeastern Cheese Corporation, No. 16-0083-KD-B, S.D. Ala., 2017 U.S. Dist. LEXIS 9533).
Delaware Company Pleads Guilty To Clean Water Act Violations, Will Pay $3.5M
WILMINGTON, Del. - International Petroleum Corporation of Delaware (IPC) on Feb. 2 pleaded guilty in Delaware federal court to conspiracy to violate the Clean Water Act (CWA) and will pay $2.2 million in restitution to the city of Wilmington as well as a $1.3 million fine (United States of America v. International Petroleum Corporation of Delaware, No. 16-cr-97, D. Del.).
Shipping Company Agrees To Pay $725,000 Fine Over 2013 Molasses Spill
HONOLULU - Matson Terminals Inc. on Jan. 19 agreed to pay a $725,000 civil penalty for violating the Clean Water Act that stemmed from a 2013 spill of 233,000 gallons of sugar cane molasses into the Honolulu Harbor during ship-loading activities (United States of America v. Matson Terminals, Inc., No. 17-cv-22, D. Hawaii).
Magistrate Recommends Approving Settlement Over Racing Association's Discharges
NEW YORK - A federal magistrate judge in New York on Feb. 3 recommended approving a settlement agreement between the federal government and the New York Racing Association over the association's discharges of wastewater into New York state's and the city of New York's sewer systems without a National Pollutant Discharge Elimination System permit, finding that the terms of the agreement were fair and reasonable (United States of America v. The New York Racing Association, No. 16 CV 5442, E.D. N.Y., 2017 U.S. Dist. LEXIS 16621).
Manufacturing Facility Owner To Upgrade Wastewater System To Resolve Suit
CONCORD, N.H. - The company that owns a Jaffrey, N.H., industrial manufacturing facility on Jan. 30 entered into an agreement in New Hampshire federal court in which it stated that it would upgrade its wastewater treatment system and pay a civil penalty of $385,000 to resolve allegations that it violated the Clean Water Act when failing to comply with the terms of its National Pollutant Discharge Elimination System permit (United States of America v. EMD Millipore Corporation, No. 17-cv-34, D. N.H.).
Water District: MTBE Damages Properly Disclosed; Expert Is Qualified To Testify
SANTA ANA, Calif. - A California water district filed a brief in California federal court on Jan. 25 defending the qualifications of one of its experts to testify in a groundwater contamination case involving methyl tertiary butyl ether (MTBE). The water district also contends in a separate brief that its claim for $34 million in damages "will be amply supported" by the testimony provided (Orange County Water District v. Unocal Corporation, et al., No. 03-1742, C.D. Calif.).
Appeals Court Affirms Company's Liability For Home-Heating-Oil Spill
NEW YORK - A New York justice did not err when denying a home-heating-oil company's motion for summary judgment on liability because the company was required to demonstrate that a spill that occurred after an employee overfilled a woman's in-home, above-ground tanks did not actually reach the surface or groundwater, a state appellate panel ruled Jan. 18. (Mary Ellen Zincke v. Pacific Energy Corp., No. 2015-00108, N.Y. Sup., App. Div., 2nd Dept.; 2017 N.Y. App. Div. LEXIS 338).
2nd Circuit Says Insured's Notice Of Environmental Claims Was Not Timely
NEW YORK - The Second Circuit U.S. Court of Appeals on Jan. 27 affirmed that two insurers in an environmental contamination coverage dispute did not waive their right to assert a late-notice defense because the insured's notice of the underlying environmental claims was not timely (Travelers Indemnity Co., et al. v. Northrop Grumman Corp., et al., No. 15-3117, 2nd Cir., 2017 U.S. App. LEXIS 1471).
New Jersey Federal Judge Caps Limits For Missing Policies In Environmental Dispute
NEWARK, N.J. - A New Jersey federal judge on Jan. 19 partially granted an insurer's motion for summary judgment in an environmental contamination coverage suit involving missing policies after determining that the limits for the missing policies must be capped at $5,000 per accident and $25,000 in the aggregate (E.M. Sergeant Pulp & Chemical Co. Inc., et al. v. The Travelers Indemnity Co. Inc., et al., No. 12-1741, D. N.J.; 2017 U.S. Dist. LEXIS 7231).
Federal Magistrate Judge Says Sanctions Against Insurer Are Not Warranted
HATTIESBURG, Miss. - A Mississippi federal magistrate judge on Feb. 2 denied a motion for sanctions filed by insureds seeking coverage for a gasoline leak because despite the insureds' contentions, the insureds were able to complete a deposition and obtained sufficient responsive answers from the insurer during the deposition (Grain Dealers Mutual Insurance Co. v. Tammy Cooley, et al., No. 16-39, S.D. Miss., 2017 U.S. Dist. LEXIS 14615).
New Jersey High Court: Assignment Valid; Coverage Owed For Environmental Claims
TRENTON, N.J. - The New Jersey Supreme Court on Feb. 1 affirmed that an assignment of rights under numerous insurance policies issued between 1964 and 1986 is enforceable and valid because the assignment was made after the loss occurred and the insurers' obligation to insure the risk under the policies was not altered by the assignment to a successor company (Givaudan Fragrances Corp. v. Aetna Casualty & Surety Co., et al., No. 2015, 076523, N.J. Sup., 2017 N.J. LEXIS 121).
Judge Allows Environmental Property Damage Claims Against Insolvent Insurer
CONCORD, N.H. - A New Hampshire judge on Dec. 20 approved the recommendation of the liquidator of an insolvent insurer, allowing an agreement with an insured under which the insolvent insurer will pay $125,000 to a company regarding asserted environmental property damage claims (In the Matter of the Liquidation of The Home Insurance Company, No. 03-E-0106, N.H. Sup., Merrimack Co.).
4th Circuit Affirms Ruling Finding Permit Does Not Shield Company From Liability
RICHMOND, Va. - A federal judge in West Virginia did not err when finding that a National Pollutant Discharge Elimination System (NPDES) permit issued to a mining company did not shield it from liability for violations of the Clean Water Act (CWA), a Fourth Circuit U.S. Court of Appeals panel ruled Jan. 4 (Ohio Valley Environmental Coalition, et al. v. Fola Coal Company, LLC, No. 16-1024, 4th Cir.; 2017 U.S. App. LEXIS 108).
EPA Properly Explained Denial Of Groups' Rulemaking Petition, Judge Finds
NEW ORLEANS - The U.S. Environmental Protection Agency and its administrator provided a sufficient explanation for its denial of a rulemaking petition filed by environmental groups seeking standards for the amounts of phosphorus and nitrogen that can be discharged into the Mississippi River and waterways leading into the river, a federal judge in Louisiana ruled Dec. 15 (Gulf Restoration Network v. Lisa Jackson, Administrator of the U.S. Environmental Protection Agency, et al., No. 12-677, E.D. La.; 2016 U.S. Dist. LEXIS 173459).
Judge Dismisses Group's Suit Over EPA's Alleged Duty To Require Discharge Permits
PROVIDENCE, R.I. - A federal judge in Rhode Island on Dec. 13 dismissed with prejudice a Massachusetts-based environmental advocacy group's lawsuit accusing the U.S. Environmental Protection Agency, its administrator and regional administrator of violating the Clean Water Act (CWA) by not requiring companies that discharge storm water into waterways of Rhode Island to obtain National Pollutant Discharge Elimination System (NPDES) permits, finding that the court lacked jurisdiction (Conservation Law Foundation v. U.S. Environmental Protection Agency, et al., No. 15-165-ML, D. R.I.; 2016 U.S. Dist. LEXIS 172117).
Judge Refuses To Reconsider Dismissal Of New Jersey Agency In Groundwater Case
TRENTON, N.J. - A federal judge in New Jersey on Dec. 20 refused to reconsider his previous ruling that dismissed the New Jersey Turnpike Authority (NJTA) from a lawsuit brought by environmental groups who had contended that the authority and the New Jersey Department of Transportation (NJDOT) were liable for discharging chemicals into the groundwater (Raritan Baykeeper Inc., et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).
Judge Erred When Dismissing Asarco's CERCLA Contribution Claim, 10th Circuit Says
DENVER - A federal judge in Utah erred when awarding summary judgment against Asarco LLC on its claim for contribution under Section 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against Noranda Mining Inc., a 10th Circuit U.S. Court of Appeals panel ruled Jan. 3, holding that the plaintiff company did not make misrepresentations to a bankruptcy court when a company representative stated that $7.4 million was a fair share of its cleanup costs at Richardson Flat Superfund site in Utah (Asarco LLC v. Noranda Mining Inc., No. 16-4045, 10th Cir.; 2017 U.S. App. LEXIS 11).
Judge: Government Owes Oil Companies $99M For Breach Of Avgas Contracts
WASHINGTON, D.C. - A U.S. Court of Federal Claims judge on Jan. 6 ruled that the federal government owes more than $99 million to companies that it contracted with for the production of aviation fuel (avgas) during World War II, finding that all of the acid waste disposed of at a site in Fullerton, Calif., was "by reason of" the agreements (Shell Oil Company, et al. v. United States of America, No. 06-141-C, Fed. Clms.).
Judge: Company Cannot Relitigate Allocation Of Natural Resource Damages
GREEN BAY, Wis. - A federal judge in Wisconsin on Jan. 3 granted the federal government's motion in limine to preclude a defendant company from arguing that allocations for natural resource damages in consent decrees between the government and parties that contributed to contamination at the Lower Fox River Superfund site were too high, holding that the company was over-reading the Comprehensive Environmental Response, Compensation, and Liability Act's section on double recovery (United States of America v. NCR Corporation, et al., No. 10-C-910, E.D. Wis.; 2017 U.S. Dist. LEXIS 257).
Judge Denies Property Seller's Motion For Judgment On Request For Indemnification
NEWARK, N.J. - A federal judge in New Jersey on Dec. 14 denied Alcoa Domestic LLC's motion for judgment on the pleadings on cross-claims brought by companies that purchased a contaminated site, finding that disputes exist as to whether Alcoa defaulted on its agreement to pay for some remediation of the property (Borough of Edgewater v. Waterside Construction LLC, et al., No. 14-5060, D. N.J.; 2016 U.S. Dist. LEXIS 173261).
Groundwater Contamination Cost Recovery Suit Not Time-Barred, Judge Says
GRAND RAPIDS, Mich. - A federal judge in Michigan on Jan. 6 denied a motion for summary judgment in a cost recovery lawsuit for groundwater contamination allegedly caused by a landfill, ruling that the case was not barred by a statute of limitations (Charter Township of Lansing, et al. v. Lansing Board of Water and Light, No. 14-514, W.D. Mich.; 2017 U.S. Dist. LEXIS 2280).
Newspaper's Motion To Intervene In CERCLA Suit Untimely, Judge Finds
BUTTE, Mont. - A federal judge in Montana on Dec. 7 denied a motion filed by a newspaper publisher and an environmental group seeking to intervene in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) lawsuit between the government and Atlantic Richfield Co. (ARCO) to gain access to confidential settlement information, finding that the request was untimely (United States of America v. Atlantic Richfield Company, No. CV-89-39-BU-SEH, D. Mont.; 2016 U.S. Dist. LEXIS 169364).
DuPont To Spend $52M On Natural Resource Restoration For Mercury Spills
HARRISONBURG, Va. - E.I. du Pont de Nemours and Co. (DuPont) on Dec. 15 entered into a proposed agreement in Virginia federal court with the federal government, commonwealth of Virginia and its secretary of Natural Resources, in which the company agreed to spend $52 million to restore natural resources along 100 miles of river that were affected by mercury spills dating back to the 1930s and 1940s (United States of America, et al. v. E.I du Pont de Nemours and Company, No. 16-cv-0082, W.D. Va.).
Divided 6th Circuit Panel Reinstates Government's Suit Over Boiler Construction
DETROIT - A 2-1 panel of the Sixth Circuit U.S. Court of Appeals on Jan. 10 reinstated an enforcement action brought by the federal government against DTE Energy Co., finding that a federal judge in Michigan erred by failing to consider the panel's earlier ruling instructing it to consider whether the company submitted sufficient information to the agency before modifying a unit at its coal-fired power plant in Monroe, Mich. (United States of America v. DTE Energy Company, et al., Nos. 14-2274, 14-2275, 6th Cir.; 2017 U.S. App. LEXIS 416).
9th Circuit Upholds EPA's Decision To Approve Permit For Mill's Boiler
SAN FRANCISCO - The U.S. Environmental Protection Agency did not act arbitrarily or capriciously when approving a lumber mill's prevention for significant deterioration (PSD) permit that allows the company to build a biomass-burning power plant, a Ninth Circuit U.S. Court of Appeals panel said in an amended opinion issued Dec. 23 (Helping Hand Tools, et al. v. U.S. Environmental Protection Agency, et al., No. 14-72553, 9th Cir.; 2016 U.S. App. LEXIS 23255).
Volkswagen Agrees To Settle Claims Over 3.0L Vehicles With Defeat Device
SAN FRANCISCO - Volkswagen AG on Dec. 20 entered into an agreement with the U.S. Department of Justice, U.S. Environmental Protection agency and state of California in which it will pay $225 million on environmental projects designed to reduce emissions of nitrogen oxide and recall 83,000 3.0-liter diesel vehicles manufactured from 2009 through 2016 that were equipped with defeat devices to cheat emissions tests to resolve allegations in violation of the Clean Air Act (CAA) and California state law, according to a consent decree filed in California federal court (In re: Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, MDL 2672, Case No. 15-md-2672, N.D. Calif.).
Couple's Suit Against Volkswagen Does Not Raise Federal Question, Judge Finds
SAN ANTONIO, Texas - A couple's lawsuit claiming that Volkswagen Group of America Inc. and a local car dealer misrepresented a vehicle's emissions and fuel efficiency should be remanded to state court, a federal judge in Texas ruled Jan. 10, finding that the plaintiffs do not allege that the manufacturer violated the Clean Air Act (CAA) (David L. Bullerwell, et al. v.Volkswagen Group of America Inc., et al., No. SA-16-CV-1199-XR, W.D. Texas; 2017 U.S. Dist. LEXIS 3648).
5th Circuit: Bona Fide Payee Need Not Return Settlement Fund Payment
NEW ORLEANS - A company that received $20,000 from a claimant that received money from the Deepwater Horizon Economic and Property Damages Settlement to repay a loan does not need to return the money to the settlement fund, a Fifth Circuit U.S. Court of Appeals panel ruled Jan. 6, holding that the company was not unjustly enriched (In re: Deepwater Horizon, Woodbridge Baric Pre-Settlement Funding LLC v. Louis J. Freeh, No. 15-30599, 5th Cir.).
5th Circuit Upholds Denial Of Lumberyard Owner's Claim To BP Settlement
NEW ORLEANS - The owner of six lumberyards in Mississippi released his claim for compensation from the Deepwater Horizon Economic and Property Damage settlement (E&P settlement) when signing a form as part of the receipt of $172,534.46 from the Gulf Coast Claims Facility (GCCF) for damages, a Fifth Circuit U.S. Court of Appeals panel ruled Dec. 13 in upholding a federal judge in Louisiana's denial of the company's rejected claim (Claimant ID 100226366 v. BP Exploration & Production, Inc., et al., No. 16-30642, 5th Cir.).
New Jersey Panel Upholds Ruling Dismissing Suit Over Remediation Obligations
TRENTON, N.J. - A New Jersey appellate panel on Dec. 29 affirmed a chancery court judge's decision to dismiss a company's declaratory judgment suit against the New Jersey Department of Environmental Protection (NJDEP), finding that the plaintiff company is required to comply with the requirements of the Site Remediation Reform Act (SRRA) (Drytech Inc. v. State of New Jersey, Department of Environmental Protection, No. A-5619-14T4, N.J. Super., App. Div.; 2016 N.J. Super. Unpub. LEXIS 2750).
Federal Judge: Preliminary Injunction Not Warranted In Environmental Dispute
INDIANAPOLIS - A preliminary injunction prohibiting an insurer from changing an insured's defense counsel and environmental consultant is not warranted because the insured failed to prove that it will be irreparably harmed if the insurer is permitted to choose the insured's defense counsel and environmental consultant, an Indiana federal judge said Dec. 27 (CMW International LLC, et al. v. Amerisure Insurance Co., No. 16-1384, S.D. Ind.; 2016 U.S. Dist. LEXIS 178603).
No Coverage Owed For Environmental Contamination, Federal Magistrate Judge Says
HAMMOND, Ind. - Insureds seeking coverage for environmental contamination discovered on a property they purchased are not entitled to coverage because the policy bars coverage for known or unknown property damage and for property damage that began before the policy's inception, an Indiana federal magistrate judge said Jan. 5 in granting the insurer's motion for summary judgment (Atlantic Casualty Insurance Co. v. Juan and Maria Garcia, No. 15-66, N.D. Ind.; 2017 U.S. Dist. LEXIS 1861).
Indiana Federal Judge Says Insurer Failed To Show All Insurers Covered Same Insured
INDIANAPOLIS - An Indiana federal judge on Dec. 14 granted a motion to dismiss filed by insurers involved in an environmental contamination coverage dispute because the insurer, which seeks subrogation from the other insurers, failed to allege in a second amended complaint that all of the insurers covered the same insured (Northern Insurance Company of New York v. Travelers Insurance Co. et al., No. 15-1810, S.D. Ind.; 2016 U.S. Dist. LEXIS 172671).
Federal Magistrate Judge Says Insurer Must Produce Information On Other Claims
HATTIESBURG, Miss. - A Mississippi federal judge on Jan. 6 partially granted a motion to compel filed by insureds seeking coverage for a gasoline leak after determining that the insurer is required to produce information related to the insurer's claims handling of other gasoline leak claims (Grain Dealers Mutual Insurance Co. v. Tammy Cooley, et al., No. 16-39, S.D. Miss.; 2017 U.S. Dist. LEXIS 2157).
Insured Argues Agreement Did Not Bar Future Claims For Cleanup Costs
CINCINNATI - An insured maintains in a Nov. 22 reply brief to the Sixth Circuit U.S. Court of Appeals that a district court incorrectly found that a 1994 settlement agreement bars coverage for any future claims arising out of coverage for environmental cleanup costs incurred by the insured at a Superfund site in Texas (Arrowood Indemnity Company v. Lubrizol Corporation, No. 16-3463, 6th Cir.).