United States v. Desnoyers

Mar 14: In the U.S. Court of Appeals, Second Circuit, Case No. 10-0447. The Appeals Court indicates that a jury convicted Defendant-Appellee Mark Desnoyers on multiple counts, including one count of conspiracy to

violate the Clean Air Act (CAA) and to commit mail fraud. After trial, the United States District Court for the Northern District of New York (Hurd, J.) entered a judgment of acquittal on the conspiracy count citing both factual and legal insufficiency as grounds

for its decision. The Government appealed the acquittal ruling. The Appeals Court ruled, "We vacate the judgment of acquittal on the conspiracy count, and remand the case to the district court with instructions to reinstate the jury verdict, enter a judgment of conviction on the conspiracy count, and resentence Desnoyers accordingly."

 

    Desnoyers was licensed in New York to conduct air monitoring at asbestos abatement projects and to document the results of asbestos removal work. Based on evidence that Desnoyers conducted his work fraudulently and sometimes not at all, the Government charged Desnoyers with conspiracy to CAA. The jury was asked to determine, among other things, whether each property in the conspiracy count was (1) a commercial property or a residential property with more than four units containing

(2) a sufficient quantity of (3) friable asbestos. According to the opinion, the Government could prove that one of those properties was subject to the CAA asbestos regulations by introducing evidence of the three factors.

 

    The Appeals Court concluded, "The fact that the Government may not have established that the properties at issue in the conspiracy count were subject to the CAA asbestos regulations was a factual deficiency in the Government's case, not a legal one. As a result, the district court erred when it characterized the Government's CAA theory as 'legally impossible.' In sum, the conspiracy count suffered neither a factual nor a legal defect."

 

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Del-Ray Battery Company, et al v. Douglas Battery

Mar 14: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-40515. Appellants, battery recyclers, were sued under the Texas Solid Waste Disposal Act (SWDA) in Texas State court for contribution to environmental clean-up costs incurred by Appellees. Appellants asserted in their defense that the Superfund Recycling Equity Act (SREA) -- an amendment to the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that exempts certain recyclers from liability for clean-up costs under CERCLA, and awards costs and fees to any recyclers improperly sued for contribution under CERCLA -- applied to protect them from the State court action brought pursuant to the SWDA. After Appellees non-suited the State court case, Appellants brought the Federal court action requesting declaratory relief as to the SREA and seeking, under the SREA, the attorneys' and experts' fees they incurred in defending the State court action. They appealed the district court's judgment dismissing their complaint and the Appeals Court affirmed the district court's decision.

 

    By way of background, Appellants Del-Ray Battery Company and Golden Eagle Battery, Inc. (together, Plaintiffs") and Appellees Douglas Battery Company and Interstate Battery Systems of America, Inc. (together, Defendants) are battery recyclers that sold intact, spent lead acid batteries to a recycling facility in Tecula, Texas until the Environmental Protection Agency (EPA") declared the facility a Superfund site and closed it down. The Texas Commission on Environmental Quality (TCEQ), the State's counterpart to the EPA, identified Defendants, among other battery recyclers, as potentially responsible parties and directed them to perform a remedial investigation/feasibility study at the Tecula site. The EPA ultimately paid $4 million in removal and remediation costs to clean up the site, but neither the EPA nor the TCEQ brought suit against any of the battery recyclers to recover the costs of this clean-up.

 

    The Appeals Court concluded, "It is also clear from case law that CERCLA and the SWDA co-exist as regulatory regimes. See Cooper, 543 U.S. at 166–67 (holding that the portion of § 113(f)(1) cited above 'rebuts any presumption that the express right of

contribution provided by the enabling clause is the exclusive cause of action for contribution available to a [potentially responsible party]'); MSOF Corp. v. Exxon Corp., 295 F.3d 485, 491 (5th Cir. 2002) ('This court and other courts have construed the CERCLA saving clauses in accordance with their plain meanings and have held that they preserve parties' rights arising under state law.'). Because the SREA on its face does not apply to state law causes of action, and because CERCLA does not preempt the SWDA, the district court properly dismissed the remainder of Plaintiffs' claims."

 

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City of Los Angeles v. San Pedro Boat Works et al

Mar 14: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-56163. Appeal from the United States District Court for the Central District of California. The case, in the first instance determines whether the holder of a revocable permit to use real property is an "owner" of that real property for purposes of imposing liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for the cleanup of hazardous substances disposed on that property by others. The Appeals Court said, "A common sense reading of the statute and existing state law persuade us that this permittee, as the holder of a possessory interest, cannot be such an 'owner' under CERCLA, and we so hold.

 

    The City of Los Angeles appealed from the district court's grant of partial summary judgment in favor of BCI Coca-Cola Bottling Company of Los Angeles (BCI Coca-Cola). The City sued BCI Coca-Cola on ten counts arising from environmental contamination caused by operation of the San Pedro Boat Works located at Berth 44 in the Port of Los Angeles (Berth 44"). The City sought reimbursement for the expense of cleaning up hazardous substances disposed of at Berth 44. The parties do not dispute whether hazardous substances were released at Berth 44; they were.

 

    The disagreement is over who should pay the clean-up costs. Under CERCLA, BCI Coca-Cola must pay if and only if it or its predecessor-in-interest -- Pacific American -- was an "owner or operator" of the boatworks when the hazardous substances were disposed at Berth 44. In a separate decision, the district court held that Pacific American, and thus BCI Coca-Cola, was not an "operator" of the boatworks at Berth 44. The City, for reasons unexplained by the record, did not appeal the district court's ruling on "operator" liability. Thus, the Appeals Court said, it focused its analysis on the district court's determination that Pacific American, and thus BCI Coca-Cola, was not an "owner" of the boatworks for purposes of CERCLA.

 

    The Appeals Court concluded, "We affirm the district court's decision granting summary judgment to BCI Coca-Cola on the City's CERCLA and nuisance claims. Pacific American, and thus BCI Coca-Cola, lacked the necessary possessory interests in Berth 44 to establish liability under either theory. Further, the district court did not abuse its discretion in denying the City's motion to file its Fourth Amended Complaint."

 

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American Commercial Lines LLC v. Water Quality Ins. Syndicate

Mar 14: In the U.S. Court of Appeals, Second Circuit, Case No. 10-1650. In this summary order, which does not have precedential effect, the Appeals Court dismissed the appeal for lack of jurisdiction. The case involved a dispute over coverage for a $130 million oil spill. Defendant Water Quality Insurance Syndicate (WQIS) appeals from the district court's March 29, 2010 grant of partial judgment on the pleadings in favor of plaintiff American Commercial Lines LLC (ACL), determining the scope of WQIS's obligation under maritime pollution insurance policy number 40-27083 (the Policy) to reimburse ACL for costs incurred investigating and defending against claims arising from a July 23, 2008 oil spill. WQIS submits that this court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1292(a)(3), because the district court's interlocutory order determined the rights and liabilities of the parties in an admiralty case in which appeals from final decrees are allowed. The Appeals Court said "We conclude that because the district court's order did not conclusively determine the rights and liabilities of the parties, jurisdiction under § 1292(a)(3) is lacking, and the appeal must be dismissed."

 

    Access the complete summary order (click here).