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LexisNexis® Mealey's™ Pollution Liability Legal News
Headline Pollution Liability Legal News from LexisNexis®
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.).
Judge Suggests Severing Claims Over Contaminated Sites In Other Jurisdictions
HANNIBAL, Mo. - A federal judge in Missouri on Nov. 28 refused to dismiss a defendant company's counterclaims seeking indemnification for contamination cleanup at three sites it purchased from a plaintiff company's predecessor in 1980 but suggested to the parties that the claims be severed due to possible issues with judicial efficiency (Cooper Industries LLC v. Spectrum Brands Inc., No. 16 CV 39, E.D. Mo.; 2016 U.S. Dist. LEXIS 163443).
Montana High Court Denies Government's Request For Oversized Amicus Brief
HELENA, Mont. - A panel of the Montana Supreme Court on Nov. 29 denied the federal government's request to file an oversized amicus curiae brief in a dispute over whether a trial court judge erred in finding that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) barred property owners' claims for restoration when their proposed remediation plan was not approved by the U.S. Environmental Protection Agency, finding that the case was not so extraordinarily complex to allow for an extended brief (Atlantic Richfield Company v. Montana Second Judicial District Court, Silver Bow County, No. 16-0555, Mont. Sup.; 2016 Mont. LEXIS 1008).
Judge Dismisses Companies' Clean Air Act Suit Over Lack Of Jurisdiction
NEW ORLEANS - A federal judge in Louisiana on Nov. 21 dismissed a lawsuit brought by Nucor Steel Louisiana LLC and Consolidated Environmental Management Inc. contending that the U.S. Environmental Protection Agency violated the Administrative Procedure Act (APA) and Clean Air Act (CAA) when issuing orders in 2012 and 2014 that objected to permits they received, finding that the court lacked jurisdiction over the plaintiff companies' claims (Consolidated Environmental Management Inc., et al. v. Regina McCarthy, et al., No. 16-1432, E.D. La.; 2016 U.S. Dist. LEXIS 161769).
Appeals Court Says Owner Could Be Liable Under Participation Theory
CHILLICOTHE, Ohio - An Ohio appeals panel on Nov. 10 reversed a trial judge's ruling awarding summary judgment to the owner of a trucking company accused of excessive emissions, holding that the defendant could be liable for allegedly participating in violations of the Clean Air Act and Ohio air pollution laws (State of Ohio, ex. rel. Michael DeWine v. Marietta Industrial Enterprises Inc., et al., No. 15CA33, Ohio App., 4th Dist.; 2016 Ohio App. LEXIS 4725).
U.S. Steel Agrees To Spend $4.9M To Resolve Emissions Suit
HAMMOND, Ind. - United States Steel Corp. (U.S. Steel) on Nov. 22 stated in a consent decree filed in Indiana federal court that it would pay a $2.2 million civil penalty, spend $1.9 million on seven environmental projects and spend $800,000 to remove contaminated transformers at two of its facilities to resolve a Clean Air Act lawsuit brought by the federal government, Indiana, Illinois and the Michigan Department of Environmental Quality (United States of America, et al. v. United States Steel Corp., No. 12-cv-304, N.D. Ind.).
5th Circuit: Franchisors Cannot Seek Lost Royalties Under BP Settlement
NEW ORLEANS - A Fifth Circuit U.S. Court of Appeals panel on Dec. 1 affirmed a federal judge in Louisiana's ruling that three franchisors that are not based in the Gulf of Mexico cannot seek to obtain lost franchisee royalties during the oil spill in the Gulf of Mexico following the explosion of the Deepwater Horizon oil rig, finding that they are not included in the terms of the economic and property damages settlement agreement (Claimant ID 100197593, et al. v. BP Exploration & Production Inc., et al., No. 16-30283, 5th Cir.).
Genuine Issues Preclude Ruling On Contract Issues, Judge Finds
PHOENIX - A federal judge in Arizona on Nov. 21 denied cross-motions for partial summary judgment on breach of contract claims in a suit over indemnification for cleanup from contamination from underground storage tank (UST) leaks, finding that too many issues of material fact exist as to whether the discovery rule or tolling doctrines apply under Arizona law (Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, D. Ariz.; 2016 U.S. Dist. LEXIS 160960).
Plaintiffs In Suit Over Mercedes-Benz's Emissions Lack Standing, Judge Says
NEWARK, N.J. - Plaintiffs in a class action suit alleging that Mercedes-Benz USA LLC misrepresented the efficiency of its BlueTec Clean Diesel vehicles lack standing to bring their action against the auto maker, a federal judge in New Jersey ruled Dec. 6, finding that the plaintiffs failed to show that the advertisements they allegedly relied on contained any false statements (In re: Mercedes-Benz Emissions Litigation, No. 16-881, D. N.J.; 2016 U.S. Dist. LEXIS 168535).
Judge Trims Some Defenses Raised By Scrap Metal Company In Runoff Suit
BANGOR, Maine - A scrap metal company accused by the federal government of violating the terms of a permit allowing for discharges of storm water runoff can challenge the enforceability of the Clean Water Act (CWA), a federal judge in Maine ruled Nov. 10 in granting in part and denying in part the government's motion to strike 23 affirmative defenses raised by the company (United States of America v. Kennebec Scrap Iron Inc., No. 16-cv-191-GZS, D. Maine; 2016 U. S. Dist. LEXIS 156004).
Judge: Industry Groups Cannot Intervene In Waste Storage Regulations Suit
WASHINGTON, D.C. - A motion filed by industry groups seeking to intervene in a lawsuit brought by a number of environmental groups over the U.S. Environmental Protection Agency's alleged failure to update oil and gas waste regulations was denied by a federal judge in the District of Columbia on Nov. 18, after he found that the industrial groups lack standing (Environmental Integrity Project, et al. v. Gina McCarthy, No. 16-842, D. D.C.; 2016 U.S. Dist. LEXIS 159892).
Sierra Club: BNSF Railway To Spend $1M To Clean Up Coal Dust
SEATTLE - The Sierra Club announced on its website on Nov. 15 that the environmental group had reached a settlement in principle with BNSF Railway Co. that would require the company to 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 to resolve a lawsuit in Washington federal court (Sierra Club, et al. v. BNSF Railway Company, No. C13-967, W.D. Wash.).
Parties Debate MTBE-Tainted Groundwater Case Before 2nd Circuit
NEW YORK - Attorneys for oil and gasoline companies, as well as those representing a California water district, on Dec. 5 presented oral arguments before the Second Circuit U.S. Court of Appeals debating the applicability of a res judicata order in a groundwater contamination case involving methyl tertiary butyl ether (MTBE) (In Re: Methyl Tertiary Butyl Ether Products Liability Litigation: Orange County Water District v. Texaco Refining and Marketing Inc. n/ka TMR Company, No. 15-3934, 2nd Cir.).
Princess Cruise Lines Agrees To Pay $40M Penalty, Plead Guilty Over Discharges
MIAMI - Princess Cruise Lines Ltd., a subsidiary of Carnival Corp., on Dec. 1 agreed to plead guilty in Florida federal court to seven felony charges for illegally discharging contaminated water from its Caribbean Princess vessel and pay a $40 million criminal penalty for its actions, which included attempts to deliberately cover up its actions (United States of America v. Princess Cruise Lines Ltd., No. 16-20897-CR-SEITZ, S.D. Fla.).
3 Companies To Spend $9M On Interim Cleanup Of North Carolina Superfund Site
ASHEVILLE, N.C. - CTS Corp., Mills Gap Road Associates and Northrop Grumman Systems Corp. on Nov. 22 filed a consent decree with the federal government in North Carolina federal court in which they agreed to spend $9 million on interim remediation of groundwater contaminated with trichloroethene (TCE) (United States of America v. CTS Corporation, et al., No. 16-cv-380, W.D. N.C.).
Panel Denies Rehearing, Says Refinery Owner Not Covered Under Policy
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Nov. 29 denied a petition for rehearing after determining that a refinery owner seeking help with environmental cleanup costs under its parent company's insurance policy should have and could have discovered that it was not named as an insured under the policy simply by looking at the insurance policy sometime within the six years of the policy's issuance (AIG Specialty Insurance Company, f/k/a Chartis Specialty Insurance Company v. Tesoro Corporation, No. 15-50953, 5th Cir.).
Insured Failed To Timely Notify Insurer Of Polluted Sites, Panel Majority Says
CHICAGO - The majority of the First District Illinois Appellate Court on Nov. 21 determined that a trial court did not err when it granted an insurer's motion for summary judgment because the evidence shows that the insured failed to give the insurer timely notice of pollution at two sites for which it seeks coverage (The Travelers Indemnity Co. v. Amsted Industries Inc., et al., No. 15-2495, Ill. App., 1st Dist., Div. 1; 2016 Ill. App. Unpub. LEXIS 2513).
Exception To Policy Provision Does Not Apply In Oil Spill Coverage Dispute, Panel Says
BEAUMONT, Texas - An exception to a policy's joint venture provision does not apply to provide coverage to an insured seeking coverage for damages incurred as a result of the Deepwater Horizon Oil Spill in the Gulf of Mexico because a monetary judgment was not entered against the insured as required by the provision's second exception, the Ninth District Texas Court of Appeals said Nov. 17 in reversing a trial court's ruling (Houston Casualty Co., et al., v. Anadarko Petroleum Corp., et al., No. 09-14-00459, Texas App., 9th Dist.; 2016 Tex. App. LEXIS 12354).
5th Circuit Orders Judge To Provide Basis For Clean Water Act Ruling
NEW ORLEANS - A federal judge in Texas was ordered on Nov. 7 to rewrite a decision awarding summary judgment to defendants accused of violating the Clean Water Act (CWA), after a Fifth Circuit U.S. Court of Appeals panel found that the eight-page opinion was "bereft of citations to record evidence" and that it "provides this court with virtually no guidance as to how the court applied the facts to the law" (United States of America v. Thomas E. Lipar, et al., No. 15-20625, 5th Cir.; 2016 U.S. App. LEXIS 20095).
Judge Declines To Rule If Emissions From Rail Cars Violate Clean Water Act
SEATTLE - A federal judge in Washington on Oct. 25 refused to find BNSF Railway Co. liable for violating the Clean Water Act (CWA) when coal dust emissions from open railroad cars land on the ground during transportation, finding that there is no scientific proof showing how the dust can enter waterways in the state (Sierra Club, et al. v. BNSF Railway Company, No. C13-967, W.D. Wash.; 2016 U.S. Dist. LEXIS 147786).
Judge Says ASARCO Can Intervene In CERCLA Suit, But Not Seek Discovery
TULSA, Okla. - A federal judge in Oklahoma on Oct. 27 ruled that ASARCO could intervene in a lawsuit brought by the federal government and state of Oklahoma against two companies accused of contributing to contamination at the Tar Creek Superfund site because a proposed settlement between the parties could affect ASARCO's ability to seek contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (United States of America, et al. v. Doe Run Resources Corporation, et al., No. 15-CV-0663-CVE-TLW, N.D. Okla.; 2016 U.S. Dist. LEXIS 148959).
Judge Dismisses Suit Over Oil Spill Brought By Chinese Fishermen
HOUSTON - A lawsuit brought by 30 Chinese fishermen over an oil spill in the Bohai Sea in June 2011 was dismissed by a federal judge in Texas on Nov. 8, who ruled that "this is a dispute among three Chinese parties about Chinese waters, it belongs in China" (Peiqing Cong, et al. v. ConocoPhillips Company, No. H-12-cv-1976, S.D. Texas; 2016 U.S. Dist. LEXIS 154508).
Volkswagen Emissions MDL Judge Enters Final Approval Of $14.7B Settlement
SAN FRANCISCO - A federal judge in California on Oct. 25 granted plaintiffs' request for final approval of a $14.7 billion settlement to resolve allegations over Volkswagen AG's installation of a defeat device designed to cheat emissions tests and deceive state and federal regulators, ruling that the settlement is fair and reasonable (In re: Volkswagen "Clean Diesel" Marketing, Sales Practices and Products Liability Litigation, MDL 2672, Case No. 15-md-2672, N.D. Calif.).
Court Denies Petition To Review Ruling Denying Dismissal Of Counties' Suits
AUSTIN, Texas - A Texas appellate panel on Nov. 4 denied a petition for interlocutory appeal filed by the state of Texas of a ruling denying its request to dismiss lawsuits brought by 18 counties accusing Volkswagen of violating the Texas Clean Air Act (TCAA) by installing devices designed to cheat emissions tests, finding that a review of the decision would not materially advance the litigation (In re: Volkswagen Clean Diesel Litigation: Texas Clean Air Enforcement Actions, No. 03-16-00673-CV, Texas App., 3rd Dist.; 2016 Texas App. LEXIS 11978).
New Jersey Appeals Court Finds Settlement With Environmental Agency Was Not Final
TRENTON, N.J. - The New Jersey Department of Environmental Protection (NJDEP) did not breach the terms of a settlement agreement with Cumberland Farms Inc. when naming the company as a defendant in lawsuits over contamination caused by the gasoline additive methyl tertiary butyl ether (MTBE) in New York federal court, a New Jersey appeals court panel ruled Nov. 2, after finding that the agreement was not final and enforceable (Cumberland Farms Inc. v. New Jersey Department of Environmental Protection, No. A-4355-14T2, N.J. Super., App. Div.; 2016 N.J. Super., LEXIS 139).
Dismissal Of Contamination Suit Too Drastic A Sanction, New Jersey Panel Rules
TRENTON, N.J. - A New Jersey judge's decision to dismiss a suit over contamination at a property that formerly housed printing operations as a sanction for the plaintiff's spoliation of evidence was too drastic, a state appeals panel ruled Oct. 31, holding that the lower court failed to consider the possibility of lesser sanctions, such as an adverse inference (18-01 Pollitt Drive LLC v. Harvey Engel, et al., No. A-4833-13T3, N.J. Super, App. Div.; 2016 N.J. Super. Unpub. LEXIS 2360).
Agency Acted Properly When Fining Company Over Site Remediation, Court Says
TRENTON, N.J. - The New Jersey Department of Environmental Protection (NJDEP) did not err when ordering a company to pay $40,500 in fines for failing to remediate a site that it previously used for manufacturing wood-working materials, a New Jersey appeals court panel ruled Nov. 3, finding that the evidence shows that the company failed to comply with the Industrial Site Recovery Act (ISRA) (New Jersey Department of Environmental Protection v. Hood Finishing Products Inc., No. A-3955-14T1, N.J. Super., App. Div.; 2016 N.J. Super. Unpub. LEXIS 2407).
Company To Pay $1.6M, Transfer Stocks To Reimburse EPA For Cleanup Costs
PRESCOTT, Ariz. - WestRock LP on Nov. 1 agreed to pay the U.S. Environmental Protection Agency $1.6 million and transfer nearly $3 million in stock to the agency to partially reimburse it for cleaning up contamination at a former wood treating plant in Prescott, according to a docket entry in Arizona federal court (United States of America v. WestRock LP, No.16-CV-08247, D. Ariz.).
EPA: Fiber Products Maker To Pay $150,000 For RCRA Violations
BOSTON - A regional office of the U.S. Environmental Protection Agency announced Oct. 27 that Lowell, Mass.-based Specialty Materials Inc. agreed to pay $150,000 to resolve allegations that it violated the Resource Conservation and Recovery Act (RCRA).
California Federal Judge Denies Motion To Dismiss In Sewage Spill Coverage Suit
LOS ANGELES - A California federal judge on Oct. 31 refused to dismiss an insurer's claims against its insured and two underlying plaintiffs in a dispute over coverage for a sewage spill after determining that federal jurisdiction is proper as the amount in controversy exceeds the federal jurisdictional requirement (Travelers Property Casualty Company of America v. Mountain Movers Engineering Contactors Inc., No. 16-2127, S.D. Calif.).
Insurer Argues Settlement Agreement Barred Claims For Cleanup Costs
CINCINNATI - An insurer argues in a Nov. 1 response brief to the Sixth Circuit U.S. Court of Appeals that a district court correctly 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.).
Insurer Says Federal Judge Erred In Finding Sewage Is Not Excluded From Coverage
MONTGOMERY, Ala. - An insurer on Oct. 20 moved for reconsideration or, in the alternative, for certification of interlocutory appeal, arguing that an Alabama federal judge erroneously applied a total pollution exclusion as if it were a qualified pollution exclusion and in doing so, incorrectly determined that the total pollution exclusion cannot be asserted as a bar to coverage for two underlying lawsuits alleging injuries from sewage exposure (Evanston Insurance Co. v. J&J Cable Construction LLC, et al., No. 15-506, M.D. Ala.).
Insurer Argues That Res Judicata Bars Plaintiffs From Collecting Damages
INDIANAPOLIS - An insurer filed a motion for summary judgment on Oct. 14 in an Indiana federal court, arguing that it has no duty to defend its insured against claims arising out of environmental contamination because the plaintiffs' claims are barred by res judicata (Carmine Greene, et al. v. Kenneth Will, et al., No. 09-510, N.D. Ind.).
Forecasting Rough Waters On The Horizon: EPA Overreach And The Clean Water Act
By George Buermann and Oliver Twaddell The public has seen an incredible increase in both frequency and boldness of the United States Environmental Protection Agency's (EPA) overreach that severely impacts local communities, industry, businesses, and in some instances, private citizens who are simply trying to enjoy the fruits of their own private land. The overexertion of federal power rears its head in all shapes and sizes-to the casual farmer enjoying his secluded piece of acreage to the EPA officials that are absolved because of their job title. David vs. Goliath