Yesterday in two parallel class action interlocutory appeals, the Sixth Circuit joined the Third Circuit in holding that the Clean Air Act does not preempt state common law tort claims related to air pollution.  The first case, Merrick v. Diageo Americas Supply, Inc., involved excess ethanol emissions from Johnny Walker and J&B brand whiskey distilleries located in Louisville, Kentucky that allegedly caused the growth of a specific type of mold on neighboring properties.  The proposed class of local property owners asserted claims for negligence, nuisance, trespass, and injunctive relief, relying on violations of a local ordinance that prohibited air pollution which caused “injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public.”  The second case, Little v. Louisville Gas & Electric Co., involved dust and coal ash emissions from a coal-fired power plant which effected local residents, and which were the subject of multiple notices of violation issued to the power company.  The class action claims in Little included claims for violations of the federal Clean Air Act and the Resource Conservation and Recovery Act, as well as state common law claims for nuisance, trespass, negligence, negligence per se, and gross negligence.  In both cases, United States District Court for the Western District of Kentucky allowed the common law claims to survive defendants’ motions to dismiss, ruling that the common law claims were not preempted by the federal Clean Air Act.   Read More »

Share | Email| Comments|  Topics: Case Update, Citizen Suit, Class Actions, Clean Air Act, Decisions of Note, Emissions, Negligence, Nuisance, Preemption, Sixth Circuit

Last week, in the case of Maroz v. Arcelormittal Monessen LLC, 2015 U.S. Dist. LEXIS 140660 (W.D. Pa. Oct. 15, 2015), a judge of the Western District of Pennsylvania declined to dismiss a proposed class action in which residents living near ArcellorMittal’s coke plant in Monessen, Pennsylvania alleged that noxious odors and air particulates from the plant polluted their properties.  After allowing the residents to amend their original complaint, U.S. District Judge Arthur J. Schwab found that the residents adequately pled the state common law tort claims for private nuisance, negligence, and trespass, despite the judge’s acknowledgement that there was “not a large number of detailed facts” set forth in the amended complaint.   However, the Court did dismiss claims for public nuisance and punitive damages. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Clean Air Act, Emissions, Nuisance, Odors, Pennsylvania, Preemption, Trespass

An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, CERCLA, Clean Air Act, Decisions of Note, Defense Costs, Electric, Emissions, Energy, Enforcement Action, EPA, Fifth Circuit, Indemnification, Insurance, Insurance Coverage, Louisiana, Remediation

This summer, we reported on the Third Circuit’s decision in the Bell v. Cheswick Generating Station case, which held that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims in a putative class action filed by over 1,500 residents complaining that the operations of GenOn Power Midwest, L.P.’s (“GenOn’s) coal-fired electric generation station constituted a nuisance under Pennsylvania common law.  Read More »

Share | Email| Comments|  Topics: Air, Case Update, Cases to Watch, Class Actions, Clean Air Act, Emissions, Nuisance, Pennsylvania, Preemption, Supreme Court, Third Circuit

Yesterday, a three-judge panel of the Third Circuit issued a unanimous precedential opinion in Bell v. Cheswick Generating Station, No. 12-4216 (3d Cir. Aug. 20, 2013), holding that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims.  In doing so, the Court reversed the Western District’s dismissal of the Complaint, and remanded the case for further proceedings. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Clean Air Act, Emissions, Negligence, Nuisance, Pennsylvania, Preemption, Third Circuit, Trespass

On Tuesday, in Citizens for Pennsylvania’s Future v. Ultra Resources, Inc., No. 4:11-CV-1360 (M.D.PA. Sept. 24, 2012) — a case watched closely by natural gas stakeholders in Pennsylvania — Judge Mariani of the U.S. District Court for the Middle District of Pennsylvania refused to dismiss a citizen suit brought by an environmental group challenging the validity of state air permits issued to the operator of a series of natural gas compressor stations, potentially opening the door for similar Federal court challenges to air permits previously issued by state regulators in Pennsylvania and elsewhere.  Approximately three years ago, the Pennsylvania Department of Environmental Protection (“PADEP”) issued separate authorizations for Ultra Resources, Inc. (“Ultra”) to construct seven compressor stations pursuant to a state general permit generally known as “GP-5.”  In issuing these authorizations, PADEP considered each of the compressor stations as a separate “facility.” If PADEP had considered the compressor stations to be a single “major” facility, then Ultra would have been required to obtain a more stringent non-attainment new source review (“NNSR”) permit before commencing construction. Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, Clean Air Act, Drilling, Emissions, Federal Procedure, Marcellus Shale, Oil and Gas, Pennsylvania, Permits

Back in October, we reported on a Complaint filed in California, in the case of Center for Community Action & Environmental Justice v. Union Pacific Corporation, No. CV11-8609 (C.D. Cal.) that contended that particulate matter in diesel fuel combustion exhaust is a hazardous waste which is “disposed of” when emitted and therefore is subject to the requirements of Resource Conservation and Recovery Act (RCRA).  Creative as it might have been, on a Motion to Dismiss, the Honorable S. James Otero threw out the case without leave to amend. Read More »

Share | Email| Comments|  Topics: Air, Cancer, Case Update, Cases to Watch, Clean Air Act, Emissions, RCRA, Toxic Torts, Waste

On October 18, the Natural Resources Defense Council filed a lawsuit in California contending that particulate matter in diesel fuel combustion exhaust is a hazardous waste and therefore subject to the requirements of Resource Conservation and Recovery Act (RCRA).  If the Court agrees, then the world of environmental law and regulation is likely to be turned upside down. Read More »

Share | Email| Comments|  Topics: Air, Cancer, Cases to Watch, Combustion, Emissions, Railroad, RCRA, Waste