Sycamore Industrial Park v. Ericsson, Inc.

Oct 20: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-1118. The Appeals Court explains that in 1985, plaintiff Sycamore Industrial Park Associates bought an industrial property with fixtures, including a boiler-based steam heating system, from defendant Ericsson, Inc. Before it sold the property, Ericsson installed a new natural gas heating system, but it left the old heating system in place. Several years after purchasing the property, Sycamore discovered that the boilers, pipes, and various pipe joints that make up the old system were insulated with asbestos-containing material.

Sycamore sued to force Ericsson to remove and dispose of the abandoned asbestos insulation and reimburse Sycamore for alleged "response costs it has incurred or will incur in removing the asbestos insulation." The suit was brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). The district court granted Ericsson’s motion for summary judgment, and Sycamore appealed. The Appeals Court affirmed the district court’s grant of summary judgment.

In its ruling, the district court found that the defendant abandoned the asbestos insulation in place at the property prior to sale. Yet it held as a matter of law that the abandonment did not constitute “disposal” of a solid or hazardous waste into or on any land or water so that such solid waste or hazardous waste might enter the environment, as CERCLA requires. In addition, the district court held as a matter of law that the abandonment of the boiler-based heating system and the subsequent sale of the Sycamore property was not “handling, storage, treatment, transportation or disposal of any solid or hazardous waste,” as required by RCRA.

In its review the appeals Court notes that the Ninth Circuit reached the same conclusion in Stevens Creek, 915 F.2d 1355. The Seventh Circuit said, "Our sister Circuit determined there was no private cause of action under CERCLA for the sale of a building containing materials with asbestos because the defendant never 'disposed' of a hazardous substance." The Seventh Circuit ruled further, "Here, there is no evidence that Ericsson transferred the Sycamore property with the intent to dispose of a hazardous substance. It incidentally left the old heating equipment in place when it sold otherwise useful realty. It simply does not make sense to hold that Ericsson is a responsible party just because Sycamore decided to remove asbestos in place decades after it purchased valuable real estate in a legitimate transaction."

On the RCRA claim, the Appeals Court said, ". . .as a matter of law, by leaving equipment that is insulated by asbestos in place and then selling the Sycamore property, Ericsson did not handle, store, treat, transport, or dispose of the asbestos as required for RCRA liability.

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Andrews v. Columbia Gas

Oct 10: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-3632. The case involved a property agreement initiated in 1947 with previous owners to allow an Ohio gas company to construct and maintain gas pipelines. Until 2004, Columbia Gas (current owner) made no efforts to clear a right of way around its pipelines on plaintiffs’ property. In June 2004, a work crew informed Donald Andrews that the location of the pipeline required them to remove a stand of the pine trees on his property and Columbia Gas claimed the right to remove the trees and to maintain a right of way totaling approximately eighty feet. In April 2005 the company informed plaintiff that the company planned to enter the property and remove the trees.

Plaintiffs filed suit in Licking County Court and the company removed the action to the U.S. District Court for the Southern District of Ohio based on diversity jurisdiction. After trial, the magistrate judge entered judgment in favor of Columbia Gas. Plaintiffs appealed making four arguments: (1) that the magistrate judge incorrectly construed the right of way agreement as granting Columbia Gas a fifty-foot easement to operate and maintain each of its pipelines on plaintiffs’ property; (2) that the doctrines of laches, estoppel, and waiver, as well as the statute of limitations, precluded Columbia Gas from clearing the right of way forty years after the trees were planted; (3) that they are entitled to damages for the removed trees; and (4) challenging the district court’s denial of their motion for additional time to serve a jury demand. After review of all plaintiff claims, the Appeals court affirmed the decision of the district court.

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Salmon Spawning & Recovery Alliance v. Gutierrez

Oct 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35979. The Ninth Circuit explains that wild salmon and steelhead, which are listed as threatened or endangered under the Endangered Species Act (ESA), have been the subject of much litigation in the Federal courts. As they swim back and forth from the Pacific Northwest to Canada, the fish have no cognizance of an international boundary, or the Pacific Salmon Treaty of 1999 (Treaty), an effort by Canada and the United States to manage salmon populations originating in Alaska and the Pacific Northwest.

The appeal concerns whether three conservation groups have standing to challenge the decision of Federal agencies and officials to enter into, and remain a party to, that Treaty. The groups alleged that "take levels" permitted under the Treaty have allowed Canadian fisheries to overharvest endangered and threatened salmon and steelhead. The Western District Court of Washington dismissed all three of their claims for lack of standing. The Appeals Court affirmed the dismissal of the first and second claims; but reversed the district court in part because the groups have "procedural standing" to bring their third claim for relief.

The Ninth Circuit concluded that, "Salmon Spawning has properly alleged procedural injury. . . [and] also meets the requirements for statutory standing under the ESA and the APA. . . [and] Finally, Salmon Spawning has established associational standing. Public Citizen, 316 F.3d at 1019. Each of the conservation groups’ members has standing to sue individually; the interests the groups seek to protect are germane to their purposes as conservation organizations; and neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Id. Therefore, we reverse the district court’s dismissal of Salmon Spawning’s third claim for lack of standing and remand for further proceedings." The Appeals Court also noted, "We remand to the district court to determine whether attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, should be granted. Each party shall pay its own costs on appeal."

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