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Headline Pollution Liability Legal News from LexisNexis®



 



2nd Circuit Refuses To Overturn Ruling That Lessees Were Not Site Owners
NEW YORK - A Second Circuit U.S. Court of Appeals panel on May 11 refused to overturn the ruling in Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 329 (2000), which sets out when a lessee can be considered an owner of a property under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to reverse a federal judge in New York's decision to award summary judgment to defendant companies accused of contaminating a property with perchloroethylene (PCE) (Next Millenium Realty, LLC, et al. v. Adchem Corp., et al., No. 16-1260-CV, 2nd Cir., 2017 U.S. App. LEXIS 8476).



9th Circuit Upholds Ruling Finding Government Did Not Arrange Waste Disposal
SEATTLE - A Ninth Circuit U.S. Court of Appeals panel on May 25 affirmed a ruling that the federal government could not be held liable as an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for the disposal of hazardous waste at a former mining site in Idaho, holding that while the government knew that hazardous substances were being stored on the property, it did not intend for them to be disposed of (United States of America v. Federal Resources Corporation, et al., No. 15-35192, 9th Cir., 2017 U.S. App. LEXIS 9151).



Judge Says Agreements Barred Greyhound's CERCLA, Toxic Control Act Claims
PHOENIX - A federal judge in Arizona on May 30 ruled that agreements between Greyhound Lines Inc. (GLI) and the seller of a property in Seattle barred the bus company's claims for damages under the Comprehensive Environmental Response, Compensation, and Liability Act and Washington's Model Toxics Control Act (MTCA) and that GLI failed to ask the seller to contribute to the remediation of contamination caused by leaks from underground storage tanks (USTs) in a timely manner (Greyhound Lines, Inc. v. Viad Corporation, No. CV-15-01820-PHX-DGC, D. Ariz., 2017 U.S. Dist. LEXIS 84657).



Judge: Site Owner Can Seek $2M In Damages For Contamination Cleanup
FORT WAYNE, Ind. - The current owners of a steel manufacturing site in Fort Wayne can attempt to recover $2 million in cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a federal judge in Indiana ruled May 12 following phase I of a trial over remediation of the property (Valbruna Slater Steel Corporation, et al. v. Joslyn Manufacturing Company, et al., No. 10-cv-44-JD, N.D. Ind., 2017 U.S. Dist. LEXIS 73188).



Residents: Groundwater Case Against Fire-Suppressant Foam Makers, Sellers Valid
PHILADELPHIA - A group of Pennsylvania residents on May 22 filed a brief in Pennsylvania federal court arguing that their groundwater contamination lawsuit against a group of chemical companies should not be dismissed because their claims are "proper" and are not barred by the doctrine of primary jurisdiction (Hanah Bates, et al. v. 3M Company, et al., No. 16-4961, E.D. Pa.).



5th Circuit: Some Methods Of Calculating Claims Are Inconsistent With Agreement
NEW ORLEANS - Four industry specific methodologies (ISMs) for calculating claimant compensation under the Court Supervised Settlement Program for the Deepwater Horizon Economic and Property Damages Class Action Settlement are inconsistent with the agreement, a Fifth Circuit U.S. Court of Appeals panel ruled May 22, finding that the methods allow the claims administrator to remove revenue from the requested compensation period and spread it throughout noncompensation months (In re Deepwater Horizon: Lake Eugene Land & Development, Inc. et al. v. BP Exploration & Production, Inc., et al., No. 15-30377, 5th Cir., 2017 U.S. App. LEXIS 8915).



5th Circuit: Shrimp Processor Was A Failed Business, Should Repay $1M Payout
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on May 12 affirmed a federal judge in Louisiana's ruling ordering a shrimp-processing company to repay more than $1 million it received from the Deepwater Horizon Economic Claims Center (DHECC), finding that the company misrepresented that it was not a failed business in order to receive the payout (In re Deepwater Horizon: Crystal Seafood Company, Inc. v. Patrick A. Juneau, No. 16-30717, 5th Cir., 2017 U.S. App. LEXIS 8463).



5th Circuit: Administrator Did Not Misapply Agreement When Denying Grocer's Claim
NEW ORLEANS - A federal judge in Louisiana did not abuse his discretion when refusing to review the denial of a food grocer's claim for $2.4 million under the Deepwater Horizon Economic and Property Damages Class Action Settlement, a Fifth Circuit U.S. Court of Appeals panel ruled May 18, holding that the claims administrator did not misapply or contradict the terms of the settlement by allowing program accountants to calculate the grocer's monthly profits and losses (Claimant ID 100217021 v. BP Exploration & Production, Inc., et al., No. 16-30930, 5th Cir., 2017 U.S. App. LEXIS 8770).



EPA Says Court Did Not Err When Denying Emissions Standard Challenge
WASHINGTON, D.C. - The U.S. Environmental Protection Agency on May 23 told the nation's high court that a District of Columbia Circuit U.S. Court of Appeals panel properly deferred to its expertise as an agency when denying a group's challenge to a rule that does not set emissions standards for periods when a source is malfunctioning (American Municipal Power, Inc. v. U.S. Environmental Protection Agency, No. 16-1168, U.S. Sup., 2017 U.S. S. Ct. Briefs 1743).



D.C. Circuit Court Says EPA Correctly Withheld Records Obtained From Power Plants
WASHINGTON, D.C. - A panel of the District of Columbia Circuit U.S. Court of Appeals on May 30 ruled that the U.S. Environmental Protection Agency properly withheld production of financial records obtained from a number of power plants in response to a Freedom of Information Act (FOIA) request from three environmental groups, finding that Exemption 4 of the FOIA supersedes a provision of the Clean Water Act (CWA) that would allow disclosure of the information (Environmental Integrity Project, et al. v. U.S. Environmental Protection Agency, No. 16-5109, D.C. Cir., 2017 U.S. App. LEXIS 9332).



Man Sufficiently Alleged Injury In Suit Over Pesticide Use, Judge Says
TOLEDO, Ohio - A federal judge in Ohio on May 30 denied a motion to dismiss a man's Clean Water Act (CWA) lawsuit over a sanitary district's use of mosquito-killing pesticides, finding that while his notice of intent to sue was deficient, he sufficiently alleged an injury-in-fact and redressability (Matt Cooper v. Toledo Area Sanitary District, No. 16-cv-1698, N.D. Ohio, 2017 U.S. Dist. LEXIS 82193).



Judge Finds Some Discharges From Mining Company Violated Permits
CHARLESTON, W.Va. - A federal judge in West Virginia on May 26 ruled that environmental groups sufficiently showed that a mining company's discharges of ionic pollution into two waterways violated the narrative water quality standards allowed by permits issued to the company under the National Pollutant Discharge Elimination System (NPDES) and that the company's discharges into a larger waterway were legal (Ohio Valley Environmental Coalition, et al. v. Fola Coal Company, LLC, No. 15-1371, S.D. W.Va., 2017 U.S. Dist. LEXIS 81593).



Group, Nearby Residents Sufficiently State Claims Over Discharges, Have Standing
MACON, Ga. - An environmental group and individuals owning property near a facility operated by a protective fabrics manufacturer sufficiently stated claims that the company's use of a land application system (LAS) to treat industrial wastewater is in violation of the Clean Water Act (CWA) and have standing to bring a citizen suit under the statute, a federal judge in Georgia ruled May 12 in denying the company's motion to dismiss (Flint Riverkeeper, Inc. v. Southern Mills Inc., d/b/a Tencate Protective Fabrics, No. 16-CV-435, M.D. Ga., 2017 U.S. Dist. LEXIS 72574).



Judge Stays Clean Water Act Suit Pending Hearing Board Proceedings
SEATTLE - An environmental group's Clean Water Act lawsuit claiming that a cargo terminal and distribution facility is discharging excessive amounts of pollutants into waterways in Tacoma, Wash., was stayed May 18 by a federal judge in Washington, who found that a proceeding involving the defendant company and the Washington Pollution Control Hearings Board (PCHB) could impact the case (Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, No. C17-5016 BHS, W.D. Wash., 2017 U.S. Dist. LEXIS 74653).



Magistrate Recommends Approving Settlement Of Suit Over Stormwater Discharges
NEW YORK - A federal magistrate judge in New York on May 30 recommended approving a settlement of a lawsuit between an environmental group and defendants accused violating the Clean Water Act (CWA) by discharging stormwater without a permit, finding that the agreement furthers the objectives of the statute (Raritan Baykeeper, Inc. v. Flag Container Services, Inc., et al., No. 16-CV-4634, E.D. N.Y., 2017 U.S. Dist. LEXIS 83426).



ConocoPhillips To Pay $39M To Settle MTBE Lawsuit
NEW YORK - A federal judge in New York on May 23 approved a $39 million settlement deal under which ConocoPhillips, a defendant in the multidistrict litigation for groundwater contamination from methyl tertiary butyl ether (MTBE), will be released from the litigation (In Re: Methyl Tertiary Butyl Ether Products Liability Litigation, No. 00-1898, MDL 1358, New Jersey Department of Environmental Protection v. Atlantic Richfield Company, No. 08-0312, S.D. N.Y.).



Judge Says Former Gas Station Operator Can Sue Estate For Cleanup Costs
TACOMA, Wash. - Atlantic Richfield Co. (ARCO) can file a third-party complaint against the estate of a man who formerly owned the site of a gas station he and his wife leased to the company so it can seek a claim for contribution under the Model Toxics Control Act (MTCA) because it does not need to incur costs for remedial actions before filing suit, a federal judge in Washington ruled June 7 (Wakefield Family, LLC v. Atlantic Richfield Company, No. C17-5114-RBL, W.D. Wash., 2017 U.S. Dist. LEXIS 87520).



Panel Partially Reverses, Says Groundwater Claim Valid Against Northrop Grumman
SAN DIEGO - A California appeals panel on June 1 reversed a ruling on groundwater contamination liability and concluded that it was "undisputed" that manufacturing sites operated by Northrop Grumman Systems Corp. contributed to groundwater contamination in a lawsuit brought against multiple defendants by a California municipal water authority (Orange County Water District v. Alcoa Global Fasteners Inc., et al., No. D070771, Calif. App, 4th Dist., Div. 1; 2017 Cal. App. LEXIS 503).



Consumers Sue GM, Parts Maker Over Emissions Defeat Device
DETROIT - Consumers of diesel-model Silverado and Sierra trucks made by General Motors LLC from 2011 to 2016 filed a class action May 25 in Michigan federal court against the automaker and the manufacturer of a part that allegedly allows the vehicles to cheat emissions tests, claiming that the car maker misrepresented the vehicles' fuel economy and emission levels (Andrei Fenner, et al. v. General Motors, LLC, et al., No. 17-cv-11661, E.D. Mich.).



6th Circuit Majority Says Agreement Barred Future Claims For Cleanup Costs
CINCINNATI - The majority of the Sixth Circuit U.S. Court of Appeals on June 1 affirmed a district court's ruling 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.; 2017 U.S. App. LEXIS 9854).



New Jersey High Court Remands Environmental Coverage Dispute
TRENTON, N.J. - The New Jersey Supreme Court on May 19 remanded an environmental contamination coverage case to allow the New Jersey Superior Court Appellate Division to reconsider its ruling regarding a successor company's rights under its predecessor's insurance policies in light of the high court's February 2017 ruling in a similar environmental contamination suit that also addressed the assignment of policy rights (Haskell Properties LLC v. The American Insurance Co., et al., No. 078210, N.J. Sup.).



Insurer Must Pay For Remediation Services Rendered On Behalf Of Its Insured
OKLAHOMA CITY - An Oklahoma federal judge on May 12 entered judgment against an insurer after determining that the insurer is required to pay for remediation services rendered on behalf of its insured and may seek reimbursement from its insured if it believes the services are not covered under the policy at issue (Environmental Cleanup Inc. v. Ruiz Transport LLC, et al., No. 15-867, W.D. Okla., 2017 U.S. Dist. LEXIS 72707).



3rd Circuit Affirms Man's Sentence For Role In $3.8M Superfund Kickback Scheme
PHILADELPHIA - A Third Circuit U.S. Court of Appeals on April 28 affirmed a man's conviction and order to pay $3.8 million in restitution for violating the Anti-Kickback Act when bidding for work to clean up a Superfund site in New Jersey, holding that the evidence presented by the government was sufficient to support the jury's verdict and that the judge did not err when calculating the restitution amount (United States of America v. John A. Bennett, No. 16-3405, 3rd Cir., 2017 U.S. App. LEXIS 7615).



5th Circuit Panel Says Documents Do Not Support Oil Spill Revenue Loss
NEW ORLEANS - An aftermarket auto parts merchant's Decline-Only Business Economic Loss (BEL) claim seeking compensation under the Court-Supervised Settlement Program (CSSP) for business losses incurred following the BP oil spill in the Gulf of Mexico was properly denied, a Fifth Circuit U.S. Court of Appeals panel ruled April 27, holding that two letters from a bank denying a request for a line of credit did not sufficiently show that the business lost revenue in 2011 (Claimant ID 100247288 v. BP Exploration & Production, Inc., et al., No. 16-30786, 5th Cir., 2017 U.S. App. LEXIS 7499).



Deckhand's Subsistence Claim Was Properly Denied, 5th Circuit Panel Finds
NEW ORLEANS - A federal judge in Louisiana's decision to decline review of rulings rejecting a subsistence claim filed by a former deckhand who worked aboard a ship that aided in the cleanup of the oil spill in the Gulf of Mexico following the April 20, 2010, explosion of the Deepwater Horizon oil rig was proper, a Fifth Circuit U.S. Court of Appeals panel ruled April 27, finding that the settlement agreement prevents employees of defendant companies from receiving proceeds from the Economic & Property Damages (E&PD) Settlement (Claimant ID 100001528 v. BP Exploration & Production, Inc., et al., No. 16-30824, 5th Cir., 2017 U.S. App. LEXIS 7624).



Louisiana Parish Announces $45M Settlement With BP Over Gulf Oil Spill Damages
BELLE CHASSE, La. - Plaquemines Parish President Amos Cormier on May 9 announced that a $45 million settlement had been reached between the parish and BP Exploration & Production Inc. over damages stemming from the oil spill in the Gulf of Mexico that followed the explosion of the Deepwater Horizon oil rig on April 20, 2010 (In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL 2179, E.D. La.).



Indiana Environmental Law Allows For Contribution, Federal Judge Finds
INDIANAPOLIS - A federal judge in Indiana on May 8 denied a defendant company's motion to dismiss a claim for contribution under the Indiana Environmental Legal Action (ELA) statute, finding that there is no case law to support the argument that the act does not allow for such a remedy (Von Duprin LLC v. Moran Electric Service, Inc., et al., No. 16-cv-01942-TWP-DML, S.D. Ind., 2017 U.S. Dist. LEXIS 69638).



Judge Grants In Part Motion To Consolidate CERCLA Suits
NEWARK, N.J. - Two lawsuits stemming from contamination at a site formerly owned by Aluminum Corporation of America, A.P. (Alcoa) were consolidated for discovery purposes by a federal judge in New Jersey on May 3 because the judge found that the suits shared common issues of fact and because consolidation would benefit judicial economy (Borough of Edgewater v. Waterside Construction, LLC, et al., No. 14-5060, D. N.J., 2017 U.S. Dist. LEXIS 67976).



Judge Approves Environmental Groups' Request For Fees In Clean Water Act Suit
CHARLESTON, W.Va. - A federal judge in West Virginia on May 2 granted a motion filed by three environmental groups seeking $420,790 in attorney fees, finding that they were prevailing parties in their Clean Water Act (CWA) lawsuit and that the attorneys' calculations were reasonable (Ohio Valley Environmental Coalition, et al. v. Fola Coal Company, LLC, No. 13-21588, Consolidated with No. 13-16044, S.D. W.Va., 2017 U.S. Dist. LEXIS 66367).



Magistrate Judge Denies Residents' Motion To Intervene In Superfund Cleanup Suit
HAMMOND, Ind. - A motion to intervene filed by residents living near a Superfund site in East Chicago, Ind., that is currently being remediated by the U.S. Environmental Protection Agency was denied May 2 by a federal magistrate judge, after he found that the request was untimely (United States of America, et al. v. Atlantic Richfield Company, et al., No. 14-CV-312-PPS-PRC, N.D. Ind., 2017 U.S. Dist. LEXIS 67090).



Judge Approves $1M Settlement Between Groups, BNSF Over Coal Dust Discharges
SEATTLE - A federal judge in Washington on May 2 approved a settlement between a number of environmental groups and BNSF Railway Co. in which the company will spend $1 million on conservation and restoration projects in Washington and clean up and remove coal dust from areas near waterways where the company's trains carry coal (Sierra Club, et al. v. BNSF Railway Company, No. C13-967, W.D. Wash.).



Federal Judge Orders Volkswagen To Pay $2.8B Fine
DETROIT - A federal judge in Michigan on April 21 ordered Volkswagen AG to pay a $2.8 billion fine for equipping its diesel vehicles with software designed to cheat emissions tests after the company pleaded guilty to counts of conspiracy to defraud the United States, wire fraud and violations of the Clean Air Act (CAA) (United States of America v. James Robert Liang, et al., No. 16-cr-20394, E.D. Mich.).



Judge: Volkswagen Buyers Cannot Seek Restitution In Criminal Proceeding
DETROIT - Consumers who purchased Volkswagen vehicles with software designed to cheat emissions tests cannot seek restitution from the auto manufacturer as part of criminal proceedings brought by the federal government against the company because it would unduly prolong the sentencing process, a federal judge in Michigan ruled April 21 (United States of America v. James Robert Liang, et al., No. 16-cr-20394, E.D. Mich.).



Seafood-Processing Company To Pay $1.3M For Violating 2010 Consent Decree
ANCHORAGE, Alaska - A seafood-processing company on April 17 agreed to pay a $1.3 million civil penalty and spend $1.1 million on air pollution reduction projects to resolve allegations that it violated the terms of 2010 consent decree that settled claims from the federal government that the company violated the Clean Air Act (CAA) (United States of America, et al. v. Westward Seafoods, Inc., No. 17-cv-58, D. Alaska).



EPA: Potomac Electric To Pay $54,000 Over Illegal Hazardous Waste Storage
PHILADELPHIA - A regional office of the U.S. Environmental Protection Agency announced May 8 that Potomac Electric Power Co. has agreed to pay $54,000 to resolve allegations that it violated the Resource Conservation and Recovery Act by failing to properly label store and manage hazardous waste containing lead and mercury at its Washington, D.C., facility.



Battle Over Superfund Site Cleanup Not A Bankruptcy Issue, Judge Says In Remanding
NEWARK, N.J. - A dispute among several companies, including former Chapter 11 debtor G-I Holdings Inc., over who should pay for the cleanup of a 26-acre polluted industrial site in New Jersey does not belong in federal bankruptcy court, a federal judge ruled May 5 in agreeing to remand the case to state court (G-I Holdings Inc., et al. v. Ashland Inc., et al., No. 17-0077, D. N.J.).



Lack Of Jurisdiction Dooms Bid To Enforce Injunction For Environmental Claims
NEWARK, N.J. - A New Jersey federal bankruptcy judge on May 1 declined to decide 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 G-I's appeal of a remand order in the dispute deprives her of jurisdiction (In re: G-I Holdings, Inc., et al., Nos. 01-30135 and 01-38790, D. N.J. Bkcy., 2017 Bankr. LEXIS 1194).



Missouri Federal Judge Says New Pollution Conditions Are Not Excluded From Coverage
KANSAS CITY, Mo. - A Missouri federal judge on May 2 denied an insurer's motion for summary judgment after determining that a premises pollution liability policy does not exclude new pollution conditions discovered by the insured because the new pollution conditions are not connected with carrying out or directing a remediation plan (Sunflower Redevelopment LLC v. Illinois Union Insurance Co., No. 15-577, W.D. Mo., 2017 U.S. Dist. LEXIS 66446).



Ala. Federal Judge Strikes Insurer's Expert Witness In Environmental Coverage Suit
MOBILE, Ala. - An Alabama federal judge on April 24 granted a motion to strike an insurer's proposed expert witness after determining that the expert's testimony relates to claims that were already decided in an underlying environmental contamination suit (Heartland Catfish Co. Inc. et al., v. Navigators Specialty Insurance Co., No. 15-368, S.D. Ala., 2017 U.S. Dist. LEXIS 62379).



4th Circuit Finds CERCLA Does Not Preempt Virginia's Statutes Of Limitations
RICHMOND, Va. - A Fourth Circuit U.S. Court of Appeals panel ruled March 9 that the Comprehensive Environmental Response, Compensation, and Liability Act does not preempt Virginia's statutes of limitation on property owners' claims for unjust enrichment, trespass, nuisance and injunctive relief because the plaintiffs could not state claims for cost recovery or contribution under CERCLA (Neal Blankenship, et al. v. Consolidation Coal Company, et al., No. 15-2480, Ira Gordon Ratliff, et al. v. Consolidation Coal Company, et al., No. 15-2482, 4th Cir., 2017 U.S. App. LEXIS 4168).



EPA Rule Exempting Farms From Reporting Animal Waste Releases Vacated By Court
WASHINGTON, D.C. - A federal appeals court in the District of Columbia on April 11 vacated a U.S. Environmental Protection Agency rule that exempted farms from reporting air releases of animal waste under the Comprehensive Environmental Response, Compensation, and Liability Act, and Emergency Planning and Community Right-to-Know-Act of 1986 (EPCRA), finding that the agency could not justify the exemption (Waterkeeper Alliance v. U.S. Environmental Protection Agency, Nos. 09-1017, 09-1104, D.C. Cir., 2017 U.S. App. LEXIS 6174).



Magistrate Judge: Questions Exist On GE's Intent To Dispose Of PCB-Capacitors
SYRACUSE, N.Y. - A federal magistrate judge in New York on March 31 denied portions of motions for summary judgment filed by General Electric Co. (GE) and the state of New York, finding that issues of material fact exist as to whether GE intended to dispose of polychlorinated biphenyl (PCB)-containing capacitors at a scrapyard to be considered an arranger of hazardous waste disposal under the Comprehensive Environmental Response, Compensation, and Liability Act (State of New York, et al. v. General Electric Company, No. 14-CV-747, N.D. N.Y., 2017 U.S. Dist. LEXIS 50026).



Magistrate Judge Orders Land Owner To Withdraw Request For Site Investigation
SAN FRANCISCO - A federal magistrate judge in California on April 3 ordered a property owner to withdraw a request to the California Department of Toxic Substances Control (DTSC) to have a former owner conduct additional site investigation for contamination, finding that the request violated the terms of a settlement agreement with the parties (Northern California River Watch v. Fluor Corporation, No. 10-cv-05105-WHO, N.D. Calif., 2017 U.S. Dist. LEXIS 50763).



Judge: Plaintiff Sufficiently Stated Dairy Discharged Hazardous Substances
SAN DIEGO - A federal judge in California on March 24 denied a dairy's motion for judgment on the pleadings after finding that a plaintiff corporation sufficiently alleged that the dairy discharged hazardous substances that are covered by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Citizens Development Corporation v. County of San Diego, et al., No. 12cv0334, S.D. Calif., 2017 U.S. Dist. LEXIS 43785).



Judge: Discovery Needed To Interpret Meaning Of Environmental Activities
NEWARK, N.J. - A federal judge in New Jersey on April 3 denied General Electric Co.'s (GE) motion to dismiss a lawsuit seeking cost recovery and contribution under the Comprehensive Environmental Response, Compensation, and Liability Act for contamination at a site sold to a developer in 2015, ruling that discovery is needed to find the definition of "environmental response activities" in the indemnity and settlement agreement (ISA) (BRG Harrison Lofts Urban Renewal LLC v. General Electric Company, No. 16-6577, D. N.J., 2017 U.S. Dist. LEXIS 50265).



6th Circuit: Modification Of Consent Decree For Power Plants Violated Agreement
CINCINNATI - The modification of a consent decree that extended the deadline for upgrades to one of two coal-burning power plants in Rockport, Ind., violated a contract between owners and operators of the facility because it would require the owners to make the improvements and pay for them after expiration of the lease, a Sixth Circuit U.S. Court of Appeals panel ruled April 14 (Wilmington Trust Company, et al. v. AEP Generating Company, et al., No. 16-3496, 6th Cir., 2017 U.S. App. LEXIS 6426).



Judge Gives EPA 3 Years To Create Standards For 20 Pollutants
WASHINGTON, D.C. - A federal judge in the District of Columbia on March 13 gave the U.S. Environmental Protection Agency three years to create rules governing emissions standards for 20 hazardous air pollutants (HAPs) after the agency conceded that it violated the Clean Air Act (CAA) by failing to undertake a nondiscretionary duty to establish the standards (California Communities Against Toxics, et al. v. Scott Pruitt, Administrator, U.S. Environmental Protection Agency, No. 15-cv-512, D. D.C., 2017 U.S. Dist. LEXIS 35268).



Judge Denies Winery's Motion To Strike Portions Of Government's Discharge Suit
FRESNO, Calif. - A federal judge in California on March 20 denied a winery's motion to strike portions of a lawsuit brought by the federal government alleging violations of the Clean Air Act (CAA) and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), finding that the allegations in the complaint were properly included (United States of America v. Gibson Wine Co., No. 15-cv-1900-AWI-SKO, E.D. Calif., 2017 U.S. Dist. LEXIS 39820).



Judge Acknowledges Objectors But Approves U.S. Steel's Clean Air Act Settlement
HAMMOND, Ind. - A federal judge in Indiana on March 31 approved a proposed settlement between the federal government, Illinois, Michigan and Indiana and United States Steel Corp. over violations of the Clean Air Act (CAA), but acknowledged comments from objectors to the agreement who sought a harsher civil penalty or an agreement that the company take on more environmental projects (United States of America, et al. v. United States Steel Corporation, No. 12-CV-304-PPS-APR, N.D. Ind., 2017 U.S. Dist. LEXIS 47607).



Volkswagen Pleads Guilty To Violating Clean Air Act, Conspiracy To Commit Fraud
DETROIT - Volkswagen AG on March 10 pleaded guilty in Michigan federal court to charges of conspiracy to defraud the United States, violating the Clean Air Act (CAA) and wire fraud as a result of defeat devices the company installed in its diesel vehicles that were designed to cheat emissions tests, according to a docket entry (United States of America v. James Robert Liang, et al., No. 16-cr-20394, E.D. Mich.).



N.J. High Court Finds State Shielded From Liability For Pre-Spill Act Incident
TRENTON, N.J. - The New Jersey Supreme Court on March 27 voted 6-1 in favor of vacating a ruling denying the state of New Jersey's motion to dismiss a contribution lawsuit brought by NL Industries Inc. under the New Jersey Spill Compensation and Control Act (Spill Act), finding that the state could raise the sovereign immunity defense for an incident that occurred before the act was enacted (NL Industries, Inc. v. State of New Jersey, No. A-44-15, N.J. Sup., 2017 N.J. LEXIS 325).



Judge Dismisses Suit Saying EPA Should Require Permits For Storm Water Discharges
BOSTON - A federal judge in Massachusetts on March 24 dismissed without prejudice a lawsuit brought by two environmental groups against the U.S. Environmental Agency and others, finding that the court lacked jurisdiction over the groups' allegations that the agency was not undertaking a nondiscretionary duty to require dischargers of storm water into the Charles River to obtain permits (Conservation Law Foundation, et al. v. U.S. Environmental Protection Agency, et al., No. 16-10397-RGS, D. Mass., 2017 U.S. Dist. LEXIS 43354).



Utility Tainted Drinking Water But Plaintiff Seeks 'Draconian' Penalty, Judge Says
RICHMOND, Va. - A federal judge in Virginia on March 23 ruled that an electric utility company violated the Clean Water Act (CWA) by dumping arsenic into the groundwater but said that the remedy sought by an environmental group was "draconian." The judge also refused to find that the utility had violated its state-issued permits and prescribed "more extensive monitoring" of the site where the contamination occurred (Sierra Club v. Virginia Electric and Power Company, d/b/a Dominion Virginia Power, No. 15-112, E.D. Va.).



Judge Approves Settlement Requiring Company To Obtain Discharge Permit, Pay Fees
CHARLESTON, W.Va. - A federal judge in West Virginia on March 14 approved a consent decree that would require Pocahontas Land Corp. to obtain a National Pollutant Discharge Elimination System (NPDES) permit to resolve allegations brought by three environmental groups that the company was violating the Clean Water Act (CWA) (Ohio Valley Environmental Coalition, et al. v. Pocahontas Land Corporation, No. 15-cv-15515, S.D. W.Va., 2017 U.S. Dist. LEXIS 36145).



Judge Orders Levee Owner To Pay $4,750 Penalty For Concrete Discharges
ROCK ISLAND, Ill. - A father and son who built a levee on their property to protect it from flooding were ordered by a federal judge in Illinois on March 28 to pay a $4,750 fine for violating the Clean Water Act (CWA) and ordered to obtain under a permit under Section 404 of the act for a portion of the levee (Quad Cities Waterkeeper Inc., et al. v. David G. Ballegeer, et al., No. 12-cv-4075-SLD-JEH, C.D. Ill., 2017 U.S. Dist. LEXIS 45829).



Gulf Oil Spill MDL Judge: Moratoria Hold Claimants Can Opt Out
NEW ORLEANS - The federal judge in Louisiana who is overseeing litigation stemming from damages caused by the oil spill in the Gulf of Mexico that followed the explosion of the Deepwater Horizon oil rig in April 2010 ruled March 17 that individuals whose claims arise from federal moratoria on drilling operations in the Gulf of Mexico can opt out of the Deepwater Horizon Economic Loss and Property Damage Settlement Program if they are not resolved by March 25 (In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL 2179, Case No. 12-970, E.D. La.).



Lack Of Causation Evidence Fatal To Man's Suit Against BP, Judge Rules
NEW ORLEANS - BP Exploration and Production Inc. and BP America Production Co. (collectively, BP) were awarded summary judgment by a federal judge in Louisiana on March 20 after she found that a man was unable to produce evidence that his exposure to dispersants during cleanup activities following the oil spill in the Gulf of Mexico caused him to develop lung cancer (Pero Cibilic, et al. v. BP Exploration & Production, Inc., et al., No. 15-995, E.D. La., 2017 U.S. Dist. LEXIS 40056).



Magistrate Judge Finds Port's Product Liability Claims Against Monsanto Are Timely
PORTLAND, Ore. - A federal magistrate judge in Oregon on April 18 recommending denying Monsanto Co.'s motion to dismiss product liability claims brought by the Port of Portland, over polychlorinated biphenyl (PCB) contamination, finding that the plaintiff does not clearly state when it discovered the injury (Port of Portland v. Monsanto Co., et al., No. 17-15, D. Ore.).



Town's PCB Claim Against Monsanto Fails, Judge Says; Expert Exclusions 'Moot'
BOSTON - A federal judge in Massachusetts on April 7 granted a motion for summary judgment dismissal of claims for breach of warranty brought by a town against Monsanto and its affiliates related to polychlorinated biphenyls (PCBs) in a school building on grounds that the town failed to show that an alternate design was feasible. As a result of that dismissal, the judge ruled that motions to exclude expert witness testimony were "moot" (Town of Westport v. Monsanto Company, No. 14-12041, D. Mass.; 2017 U.S. Dist. LEXIS 53815).



San Diego: PCB Claims Against Monsanto Valid; Property Interests At Issue
SAN DIEGO - The city of San Diego and its port district on April 7 filed a brief in California federal court contending that their second amended complaint against Monsanto Co. regarding alleged contamination of the city's water system with polychlorinated biphenyls (PCBs) should not be dismissed because the city has multiple property interests that are affected by the company's PCBs (San Diego Unified Port District, et al v. Monsanto Company, et al., No. 15-578, S.D. Calif.).



New York Law Applies In Environmental Dispute, Delaware High Court Says, Reversing
WILMINGTON, Del. - The Delaware Supreme Court on March 23 determined that the law of New York should be applied in a dispute over the allocation of environmental contamination claims because New York has the most significant relationship with the parties and applying the law of the state in which an environmental cleanup site is located, as proposed by the lower court, would result in an inconsistent application of a policy's contract language (Chemtura Corp. v. Certain Underwriters at CCLC Lloyd's, et al., No. 371, 2016, Del. Sup., 2017 Del. LEXIS 127).



Federal Judge Says Insurer Is Entitled To Reimbursement Of Costs Paid Under Deductible
SAN FRANCISCO - An insurer involved in an environmental contamination coverage dispute is entitled to reimbursement of the deductible it paid on behalf of its insured because the policy at issue specifically states that the deductible includes claim expenses such as defense costs, a California federal judge said March 29 in granting the insurer's motion for partial summary judgment (American Guarantee and Liability Insurance Co., et al. v. Technichem Inc., et al., No. 15-03611, N.D. Calif., 2017 U.S. Dist. LEXIS 47103).



Federal Judge Denies Reconsideration Of Ruling In Contamination Dispute
TRENTON, N.J. - A New Jersey federal judge on April 5 denied motions for reconsideration filed by two insurers and their insured after determining that the court did not commit a clear error of law in interpreting the applicability of the policies' per-occurrence limits and absolute pollution exclusion in an environmental contamination dispute (Castoro & Co. Inc. v. Hartford Accident and Indemnity Co. Inc., et al., No. 14-1305, D. N.J., 2017 U.S. Dist. LEXIS 52140).



Indiana Federal Judge Denies Insured's Motion For Preliminary Injunction
INDIANAPOLIS - An Indiana federal judge on April 11 denied an insured's motion for a preliminary injunction after determining that the insured has already shown that it can avoid suffering any irreparable harm by paying for its own site remediation contractor rather than switching to the insurers' choice of contractor while its lawsuit against its insurers is pending (Ranburn Corp. v. Argonaut Insurance Co., et al., No. 16-088, N.D. Ind., 2017 U.S. Dist. LEXIS 54833).