Wednesday, May 4, 2011

Jerry Adkins v. Kenneth Will (VIM Recycling Inc)

May 3: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-2237. Appealed from the United States District Court for the Northern District of Indiana, South Bend Division. The Appeals Court explains that the appeal presents questions regarding the citizen-suit provisions in the federal Resource Conservation and Recovery Act (RCRA), including when a narrower government enforcement lawsuit may preclude a broader citizen suit, and how the citizen-suit provisions interact with the federalism doctrines of Colorado River and Burford abstention. The district court in this case relied on statutory provisions and the abstention doctrines to dismiss the plaintiffs' citizen suit under RCRA. In a partially split decision, the Appeals Court reversed and remand which allows the plaintiffs to pursue their citizen suit. One justice indicated concurrence in part and dissented in part.
    The complicated legal action involves the relationships among three lawsuits: two state court actions filed by a state environmental agency and the Federal citizen suit. The majority concluded, "The plaintiffs' RCRA citizen suit should go forward, except as to the violation claims concerning 'C' grade waste that were part of the first IDEM [Indiana Department of Environmental Management] lawsuit against defendant VIM. In all other respects, the plaintiffs met the statutory requirements of RCRA. Because the plaintiffs satisfied the statutory requirements for bringing their citizen suit, abstention doctrines should not have been used to block the plaintiffs from pursuing the avenues that Congress gave them in RCRA. The district court's judgment dismissing the case is reversed and the action is remanded for further proceedings."
    Earlier in the decision the majority clarified that, "If IDEM should achieve comprehensive relief in its state court lawsuits, the federal judge will be entitled to press the citizen-plaintiffs as to what more they hope to accomplish in this suit. We emphasize, however, that the federal court in this case has a duty to press forward here. Congress has extended to these plaintiffs the right to pursue relief in a federal district court. The plaintiffs are not required to rely exclusively on the state agency in lawsuits in which they may only watch from the sidelines. The goal of RCRA is 'the prompt abatement of imminent and substantial endangerments,' and the district court has a duty not to allow progress toward that goal to be derailed or slowed because of possible delays in state proceedings."
    The dissenting Justice said, "I join the majority opinion on several issues, but I cannot agree with the majority's discussion and conclusion regarding abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). I therefore must respectfully dissent." The dissenting Justice indicated, "I concur with my colleagues on several issues." Then proceeded to outline at least four major areas of agreement and said, "Where I part company from my colleagues is with respect to their application of the Colorado River abstention doctrine. Even here, my disagreement is not total. Nevertheless, I view the position taken by my colleagues to be an overly rigid one, which, under the circumstances of this case, produces a result contrary to the overall intent of RCRA and a procedural straitjacket for district courts in future cases."

    Access the complete opinion and dissent (click here). [*Haz]

Alcoa Power Generating Inc. v. FERC

May 3: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1066. On Petition for Review of Orders of the Federal Energy Regulatory Commission (FERC). The Alcoa Power Generating Company petitions for review of two orders of FERC with respect to the relicensing of its Yadkin Project facilities in North Carolina. A precondition of licensing is receipt of a State certification that any discharges into navigable waters will comply with sections 301-03 and 306-07 of the Clean Water Act. Section 401(a)(1) of the Clean Water Act provides that State certification 'shall be waived with respect to such Federal application' if the State certifying agency 'fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request . . ..'
    When a State administrative law judge stayed pending appeal the water certification issued by the State agency, Alcoa Power petitioned the Commission for a declaratory order that the certifying agency had waived its authority by not issuing a certification that was effective and complete within one year. The Commission denied the petition, ruling there was no waiver because the State had 'act[ed] on' Alcoa Power's application within one year of its filing. Alcoa Power contends that the Commission misinterpreted the law and the facts and that the State violated the time limit in Section 401(a)(1) by linking the effectiveness of the certification to satisfaction of a bond requirement after the expiration of the one-year period, thereby waiving its right to issue a certification for the project. The Commission maintains that the petition for review is not ripe because, in accordance with its policy, it has not been able to act on Alcoa Power's application for licensure in view of on-going State administrative review and stay of the certification.
    The Appeals Court said, "We hold that the petition is ripe, because if the certification was waived, then the pendency of the State proceeding is no bar to the Commission acting on Alcoa Power's licensing application. We agree with the Commission's interpretation of Section 401 in ruling that there was no waiver by the State and, therefore, we deny the petition for review." The Appeals Court explains, "In sum, under Section 401, the State, acting through its Division of Water Quality, timely issued a water quality certification that complied with the requirements of Section 401. The Commission on rehearing made clear that it was free to commence its licensing proceeding but for its policy to stay such proceedings pending conclusion of the State proceeding, which policy Alcoa Power does not challenge. Because the "effective" clause in the bond condition of the 2009 Certification did not operate to block or delay the federal licensing proceeding, and it did not contravene Section 401(a)(1)'s waiver provision, much less the Commission's regulations, Alcoa Power's objections to the substantive content of the 2009 Certification is a matter of State law that is properly raised in the State proceeding, as Alcoa Power has done.
    "Alcoa Power's additional objection that the Commission failed to engage in reasoned decision-making by ignoring or misapprehending certain material facts fails. The allegedly ignored facts are that (i) the bond condition as written in the 2009 Certification is objectively impossible to satisfy, and (ii) the Division of Water Quality had ample time to request satisfaction of the bond condition within the one-year statutory period in view of the extended procedural history of Alcoa Power's requests for certification. These assertions became irrelevant to the Commission's waiver analysis once it concluded that neither Section 401 nor its own regulation required it to wait until the bond condition was satisfied before proceeding with Alcoa Power's license application. The Commission therefore had no reason to analyze these issues in greater depth."
    Access the complete opinion (click here). [Energy, Water]