Tuesday, July 9, 2013
Jul 8: In the U.S. Court of Appeals, Seventh Circuit, Case No. 12-1026 & 12-1051. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. The Appeals Court explains that any "major emitting facility" built or substantially modified after August 7, 1977, in parts of the country subject to the rules about prevention of significant deterioration (PSD), needs a permit. The PSD construction permit is in addition to the operating permits that many facilities require under the Clean Air Act and the need to comply with state implementation plans. One condition of a construction permit is installation of "the best available control technology for each pollutant subject to regulation under" the Act.
Between 1994 and 1999 Commonwealth Edison Co. modified five of its coal-fired power plants; all five plants had been operating on August 7, 1977, and were grandfathered until the modification. Commonwealth Edison did not obtain permits. The question "how much repair or change requires a permit?"has been contentious and difficult. [A number of cases are cited]. Commonwealth Edison took the position that permits were not required and that it therefore was not obliged to install "the best available control technology" (BACT). However, no one sued until 2009, a decade after the last of the modifications had been completed. The district court dismissed as untimely the claim. After finishing the modifications, Commonwealth Edison sold the five plants to Midwest Generation.
The United States and Illinois, the two plaintiffs in this suit, contend that Midwest is liable as Commonwealth Edison's successor, and it accuses the district court of allowing a corporate restructuring to wipe out liability for ongoing pollution. Adding another twist, Midwest and its corporate parent Edison Mission Energy filed petitions under the Bankruptcy Code after the appeal was argued. The Appeals Court indicates, "Midwest cannot be liable when its predecessor in interest would not have been liable had it owned the plants continuously." Citing Gabelli v. SEC, 133 S. Ct. 1216 (2013), the Appeals Court indicates that "Gabelli holds that the time for the United States to sue under §2462 begins with the violation, not with a public agency's discovery of the violation.
The Appeals Court indicates that, "Plaintiffs concede all of this but reply that failure to obtain a construction permit is a continuing violation. The phrase 'continuing violation' is ambiguous. . . Two other courts of appeals have considered whether operating a new or modified plant, despite failure to obtain a construction permit, is a new violation of
§7475(a). Both have held that it is not. Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010); National Parks and Conservation Association Inc. v. Tennessee Valley Authority, 502 F.3d 1316 (11th Cir. 2007). We agree with those decisions."
Further, the Appeals Court indicates, "What these plants emit today is subject to ongoing regulation under rules other than §7475. Today's emissions cannot be called unlawful just because of acts that occurred more than five years before the suit began. Once the statute of limitations expired, Commonwealth Edison was entitled to proceed as if it possessed all required construction permits." The district court decision was affirmed.
Access the complete opinion (click here). [#Air, #CA7]
Posted by JPMcJ at 4:35 PM
Jul 8: In the U.S. Court of Appeals, Third Circuit, Case Nos. 11-3813 and 11-3814. Appeal from the United States District Court for the District of New Jersey. The case involves attorney's fees and the Appeals Court reminds that, "A request for attorney's fees should not result in a second major litigation" citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). They say, "Regrettably, requests for attorneys' fees in this protracted environmental clean-up case have resulted not only in a second major litigation, but a third as well. An earlier multi-million dollar fee award previously brought before us was vacated and remanded for additional review by the District Court. Interfaith Cmty. Org. v. Honeywell Int'l, Inc. (ICO II), 426 F.3d 694 (3d Cir. 2005). We are now confronted with a challenge to another multi-million dollar award."
The Appeals Court says, "This latest appeal calls upon us to decide whether offers of judgment pursuant to Fed. R. Civ. P. 68 may be made in the context of attorney's fee disputes under the fee-shifting provisions of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901, et seq. We are also called upon once again to determine whether the fee award is excessive. Because we conclude that Rule 68 offers of judgment may be made in this context, we will reverse the District Court's declaration that the offers of judgment in this case are null and void as well as its decision to bar any further offers of judgment. And, while we uphold as not clearly erroneous the District Court's decisions with respect to the appropriate hourly rates in this case, we are unable to sustain its conclusions with respect to the number of hours claimed by counsel because the District Court's findings lack sufficient explanation. Accordingly, we will vacate the fee award and remand for further proceedings."
The Appeals Court concludes, ". . .we will reverse the District Court's ruling that Rule 68 offers of judgment are inapplicable in the context of environmental citizen suits brought under RCRA, direct that the previously made offers of judgment be reinstated, affirm the District Court's departure from the forum-rate rule because review of this issue is barred by collateral estoppel, affirm the District Court's application of the LSI-updated Laffey Matrix, vacate the District Court's fee award, and remand the case for further proceedings consistent with this opinion."
Access the complete opinion (click here). [#Haz, #CA3]
Posted by JPMcJ at 4:34 PM