Monday, August 6, 2012

Upper Blackstone Water Pollution Abatement Dist. v. U.S. EPA

Aug 3: In the U.S. Court of Appeals, First Circuit, Case No. 11-1474 and 11-1610. Petitions for review of a final permit decision by U.S. EPA. The petitions seek review of certain effluent limitations imposed by EPA in a National Pollutant Discharge Elimination System (NPDES) permit on the discharges of Upper Blackstone Water Pollution Abatement District, a sewage treatment plant located in central Massachusetts. The District's discharges are into the headwaters of a polluted river which, in due course, flows into other rivers, and ultimately empties into Narragansett Bay.
    The Appeals Court indicates that the states of Massachusetts and Rhode Island each have strong interests in the health of these waters and generally have supported the EPA's decisions during the permitting process. The District, supported by its member towns, has an interest in avoiding compliance costs associated with the permit and has challenged the effluent limitations as premature and unsupported by the scientific record.
    The Appeals Court rules, "We have stayed enforcement of the permit during this appeal and while the parties were engaged in settlement negotiations in a court-sponsored settlement program. We now lift the stay, deny the petitions, and find no error in the EPA's final permit decision.
    The District first attacks a scientific model the EPA incorporated into its analysis of the nitrogen-fueled cultural eutrophication in Narragansett Bay. The District argues that this model, which was created by the University of Rhode Island's Marine Ecosystems Research Laboratory (MERL) in the 1980s to simulate water quality conditions in the Bay, is so unreliable and unrepresentative of actual Bay conditions as to entirely undermine the EPA's nitrogen analysis. The MERL model was peer-reviewed and published in a scientific journal.
    In response, the Appeals Court said, "Where the agency follows the proper procedures and acts with a reasonable basis, both its choice of scientific data and interpretation and application of that data to real world conditions are entitled to deference. . . Where the EPA did rely on the MERL model, the record reflects that it fully accounted for the model's shortcomings. . . The District's argument that the MERL model should have been excluded from consideration entirely is without merit. . . The EPA also followed the proper procedures for ensuring that the model received scrutiny not only from the permittee, but from the scientific community and the public. . . The EPA's determination, based on its analysis of the evidence before it as a whole, that a nitrogen limit of 5.0 mg/L was necessary to achieve Rhode Island's water quality standards was not a 'hunch[] or wild guess[]' but a rational exercise of judgment."
    The District also challenged whether the nitrogen limit was "necessary" or "sufficient." The Appeals Court said, "We reject the first claim, since the EPA expressly found that the 5.0 mg/L limit was necessary to meet state standards, and that a higher limit would not achieve those standards." On the sufficient argument, the Appeals Court said, ". . .where a complex administrative statute, like those the EPA is charged with administering, requires an agency to set a numerical standard, courts will not overturn the agency's choice of a precise figure where it falls within a 'zone of reasonableness' . . . The nitrogen limit the EPA chose here is justified by the record and within the zone of reasonableness. The District's challenges to the limit fail." Other challenges are also dismissed.
    Access the complete opinion (click here). [#Water, #CA1]

USA v. NCR Corporation

Aug 3: In the U.S. Court of Appeals, Seventh Circuit, Case No.12-2069. Appeal from the United States District Court for the Eastern District of Wisconsin. As explained by the Appeals Court, The case involves just one
chapter in a long-running set of efforts to clean up the Fox River in Wisconsin, after years during which various companies dumped PCBs (more formally, polychlorinated biphenyls) into its waters. Since at least the late 1990s, U.S. EPA and the Wisconsin Department of Natural Resources (WDNR) have been working to devise and implement an effective remedial plan for the River.
    One of companies that was designated as a "potentially responsible party (PRP)," and thus responsible for undertaking remedial work, was NCR Corporation. Acting pursuant to administrative orders, NCR has performed a significant amount of cleanup. It decided, however, in 2011 that it had done enough and announced that it was no longer going to comply with the relevant order. That is what prompted the present action by the United States and Wisconsin seeking a preliminary injunction
compelling NCR to complete the remediation work scheduled for this year. The governing statute is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). NCR opposed the injunction, arguing that the cleanup costs were capable of apportionment, and that when so apportioned, it was clear that NCR had already performed more than its share of the work.
    The district court evaluated the facts otherwise and issued the preliminary injunction. NCR is presently complying with the injunction. We expedited this appeal, however, understanding that NCR is seeking to challenge its interim obligations, which have been imposed without a full trial on the merits. The Appeals Court rules, ". . .we agree with the district court that NCR has not met its burden of showing that the harm caused by pollution in the Lower Fox River is capable of apportionment. We further find no abuse of discretion in the court's decision to issue the preliminary injunction, and so we affirm its order."
    Citing some uncertainties from the Supreme Court and conflicting Appeals Court circuit opinions regarding liabilities and cost recovery, the Appeals Court said, "All of this is too uncertain to drive the result in the present case. If and when the time comes, NCR will be free to explore whatever possibilities may still be available to it for either contribution or cost recovery. What is available will of course depend in part on any appeal that it might take from the district court's order on this subject -- a topic that is not before us at this time. For now, we conclude that it is an open question whether, and if at all to what extent, NCR might
be able in future legal proceedings to recoup any costs it should not have paid. Thus, the district court's weighing of the equities did not amount to an abuse of discretion. Its preliminary injunction requiring NCR to complete the specified 2012 remediation work is therefore affirmed."
    Access the complete opinion (click here). [#Remed, #CA7]