• A
memorandum opinion of the Ninth Circuit Court of Appeals affirmed a district
court’s allocation of CERCLA responsibility. The allocation was reviewed only for abuse of discretion. The district court rejected both
parties’ experts and allocated based on amount of contaminants removed. While an imperfect measure, it was
reasonable given the difficulty of producing all the evidence needed for a
better assessment of relative responsibilities.
• Judge
Ebel, writing for the Tenth Circuit Court of Appeals, affirmed a ruling that
private parties’ RCRA action against the federal action was barred by Section
113(h). Frustrated with the delay
in government response to contamination, the plaintiffs sought injunctive
relief. However, the government
had begun assessing contamination at the site, which fell within the definition
of removal action and triggered Section 113(h). The demand for court-ordered injunctive relief obviously could
interfere with the government’s actions.
• Judge
Kravitch, writing for the Eleventh Circuit Court of Appeals, reversed a
judgment that a pollution exclusion did not apply to claims against an
environmental assessor. Whilethe
lower court held that the assessor did not cause the pollution, this was
irrelevant under the broad language of the policy, which excluded all claims
“arising from” pollution. The
limiting interpretation of the exclusion was not necessary for the policy to
have meaning.
• Judge
McLaughlin of the federal district court for the Eastern District of
Pennsylvania denied a motion to revise its judgment that offset the plaintiff’s
recovery by the amount of a large settlement for the same damages. The settlement recovery was limited to
the insurer, which had expressed an intent to deny payment under a pollution
exclusion. The court found it had
jurisdiction, though the decision was appealed, but denied
reconsideration. The prospect of
an insurer’s denial was not so unexpected to warrant modification, nor was the
decision even final.
• Judge
Bennett of the federal district court for the District of Maryland granted
plaintiff’s motion for partial summary judgment on duty to defend coverage,
notwithstanding a qualified pollution exclusion, because of uncertainty about
the nature of the releases in question. The underlying claim was based merely on an EPA demand letter that did
not describe the nature of the releases, leaving open the possibility that they
were sudden and accidental. The
plaintiff also produced extrinsic evidence of one such release. The defendants could not submit
contrary extrinsic evidence, even that made in comments to the government.
• Judge
McLaughlin of the federal district court for the Eastern District of
Pennsylvania granted a defendant’s motion to dismiss claims that the government
was preparing to approve a development that would harm their property. This was not a procedural standing
case, because the plaintiffs identified no procedure violated in which they had
legal rights. Standing failed
because they had not alleged an injury in fact, as the defendant government had
not yet taken the action at issue, and other factors made the prospective
injury speculative. The case
failed ripeness standards for the same reason.
• Judge
Kennelly of the federal district court for the Northern District of Illinois
granted a motion to dismiss CERCLA claims under the statute of
limitations. Claims were filed
more than six years after the initiation of cleanup, so the action was untimely
if the cleanup were characterized as remedial. The court found that it was remedial, not removal, noting
the terms of the underlying consent decree, which referred to it as a remedial
action and that it was intended to provide a final remedy for the
contamination.
• Judge
Griesbach of the federal district court for the Eastern District of Washington
granted in part and denied in part a motion to dismiss claims under Section 107
and Section 113 by a plaintiff who undertook cleanup pursuant to a consent
decree. The court held that the
Section 107 action was unnecessary and inappropriate in light of the Section
113 action. While not all cleanup
costs were incurred in response to government requirements, the plaintiffs
could potentially recover any cleanup costs, not just those compelled, in the
contribution action. The court
found that declaratory relief could be obtained in a contribution action. The court also found that contribution
protection was limited to that authorized by a consent decree and in this case
limited in time.
• Judge
Whyte of the federal district court for the Northern District of California
granted in part and denied in part motions for summary judgment on insurance
coverage of compliance costs of a water company whose actions distributed
groundwater contamination. The
court found triable questions of fact about whether the contamination occurred
before the policies containing pollution exclusions. The policies that had pollution exclusions had sudden and
accidental exceptions. The relevant
act for purposes of the exceptions was not the water company’s activities but
the initial releases, which were possibly sudden and accidental. The insurer therefore had a duty to
defend, but its indemnification duties presented factual issues that required
trial.
• Judge
Pratter of the federal district court for the Eastern District of Pennsylvania
approved the class settlement of contamination claims for medical monitoring
and property damage. The court
found that all the relevant factors were satisfied, noting the complexity of
the litigation and the weaknesses of the class plaintiffs’ case. In addition, the 25% attorneys’ fees
and other costs were reasonable. Because the settlement was entered in good faith, the court also
provided the settling defendant with contribution protection.
• Judge
Rodriguez of the federal district court for the District of New Jersey granted
in part and denied in part the government’s motion to strike affirmative
defenses in its cost recovery action. Although there were technical defects in the pleading of most of the
defenses, the court allowed amendments. This included allegations that the defective administrative record
produced an arbitrary and capricious response action, that the failure of
contemporary notice meant that due process was violated, that the response
action was untimely, and that the harm was divisible. Other defenses were rejected outright, though, such as an
argument that the government could not recover for the removal of materials
that were not hazardous substances.
• A
per curiam opinion of the Court of Appeals of Michigan reversed a decision
allowing an insured to proceed with recovery claims against an insurer. Plaintiff failed to provide
contractually required notice. Although it promptly provided notice of original occurrences, the
presence of contamination, it failed to provide defendants notice of subsequent
enforcement actions, which denied them the opportunity to participate in the
defense of those actions. The
claims also failed the statute of limitations. Although the defendants never formally denied coverage,
representing a breach, they had functionally denied coverage long before the
complaint’s filing, a fact that the complaint itself recognized. Coverage was also precluded because the
plaintiff voluntarily remediated contamination and incurred costs without the
insurer’s knowledge or approval, in contravention of the contract.
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