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.
Access the complete opinion (click here).
Showing posts with label RCRA. Show all posts
Showing posts with label RCRA. Show all posts
Tuesday, October 21, 2008
Thursday, July 31, 2008
Mather v. Willet Dairy
Jul 30: In the U.S. Court of Appeals, Second Circuit, Case Nos. 07-3454 & 07-3462. The case is appealed from a judgment of the U.S. District Court for the Northern District of New York granting summary judgment for Defendants-Appellees on all of Plaintiffs-Appellants’ claims in a suit alleging that Defendants-Appellees’ large dairy operation emitted hazardous pollutants in violation of the Clean Water Act (CWA).
The Appeals Court ruled that the Plaintiffs-Appellants, a group of neighbors, waived their claim as to any CWA violations before July 1999, that the CWA permit shield provision prohibited this action as to any claims between July 1999 and December 2006, and that Plaintiffs-Appellants’ Resource Conservation and Recovery Act (RCRA)claims were prohibited under that statute’s "non-duplication provisions." Additionally, the Appeals Court said, ". . .we join other circuits in concluding that Defendants-Appellees did not need a permit to construct a stock pond on land already in use for farming under 33 U.S.C. § 1344(f)(2). Accordingly, the judgment of the District Court granting summary judgment on all of Plaintiffs-Appellants’ claims is affirmed."
Plaintiffs had brought the citizen suit claiming that Willet Dairy violated the Clean Water Act by failing to manage its animal waste and silage leachate properly, and otherwise causing environmental and public health hazards. They charged that: (1) Willet Dairy operated without a permit prior to July 1999 in violation of the CWA, (2) Willet Dairy discharged pollutants into navigable waterways after July 1999 in violation of its permit and the CWA, (3) Willet Dairy’s operations violated the Resource Conservation and Recovery Act of 1976 (RCRA), and (4) Willet Dairy diverted Schaeffer Brook without a permit in violation of the CWA.
On the first charge, the Appeals Court said Appellants failed to raise this claim properly before the District Court, and therefore it was deemed it waived. Additionally, if Appellants had sufficiently argued the claim below, Willet Dairy’s failure to have a permit before July 1999 is a “wholly past violation,” which cannot be the subject of a CWA citizen suit, and the Dairy has had permit coverage under New York Department of Environmental Conservation’s general permit since July 1999.
On the second charge, the Appeals Court said the “permit shield,” embodied in 33 U.S.C. § 1342(k), protects a CWA permit holder from facing suits challenging the adequacy of its permit. The Appeals Court said, ". . .compliance with an authorized permit is deemed compliance with CWA, so as long as Willet Dairy was acting in accordance with its permit it could not be liable in a citizen suit for CWA violations.
On the third charge, the Appeals Court said, ". . . RCRA establishes a regulatory scheme for the treatment, disposal, and storage of solid and hazardous wastes. . . The RCRA also provides that '[n]othing in this chapter shall be construed to apply to . . . any activity or substance which is subject to the [CWA] . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of [the 10 CWA].' 42 U.S.C. § 6905(a). Appellants’ RCRA claims are based on the same activities and substances that the CWA covers.
On the last issue regarding the diversion of Schaeffer Brook to create a stock pond, which allegedly caused harm to ponds and streams on Appellants’ properties, the Appeals Court said, "This is a new issue for our Circuit and thus we write to clarify our position." The Appeals Court said in December 1999, Willet Dairy diverted the upstream reach of the Schaeffer Brook without contacting the Corps, however, when it sought a "jurisdictional determination" from the Corps on whether it needed a permit, the Corps said it did not have jurisdiction over the pond project because of the exception to Section 1344(a) that allows a party to proceed without a permit if diverting the navigable water is “for the purpose of construction or maintenance of farm or stock ponds. . . ”
However, the Appeals Court notes that there is an exception to this exemption, called the “recapture provision,” which requires a permit if the diversion project is for the purpose of bringing an area “into a use to which it was not previously subject.” Appellants contended that the diversion was for a "new" pond, and a "new" use, so the activity should fall within the "recapture provision." The Appeals Court said, "Other courts have, however, interpreted the recapture provision to mean that a party needs a permit only when it is starting a new farming operation, not when it is building a new pond to support an existing farming operation. . . We agree for substantially the reasons stated by these courts. Any other reading would make the statute incoherent. Given that Section 1344(f)(1)(C) provides a permit exemption for the construction of a stock pond, which is by definition new, that section would be rendered meaningless by an interpretation of the recapture provision that required permits for all new uses, including new ponds. Moreover, even if there was ambiguity over the scope of the recapture provision, we would give deference to the agency interpretation that the recapture provision did not apply in this instance."
Access the complete opinion (click here).
The Appeals Court ruled that the Plaintiffs-Appellants, a group of neighbors, waived their claim as to any CWA violations before July 1999, that the CWA permit shield provision prohibited this action as to any claims between July 1999 and December 2006, and that Plaintiffs-Appellants’ Resource Conservation and Recovery Act (RCRA)claims were prohibited under that statute’s "non-duplication provisions." Additionally, the Appeals Court said, ". . .we join other circuits in concluding that Defendants-Appellees did not need a permit to construct a stock pond on land already in use for farming under 33 U.S.C. § 1344(f)(2). Accordingly, the judgment of the District Court granting summary judgment on all of Plaintiffs-Appellants’ claims is affirmed."
Plaintiffs had brought the citizen suit claiming that Willet Dairy violated the Clean Water Act by failing to manage its animal waste and silage leachate properly, and otherwise causing environmental and public health hazards. They charged that: (1) Willet Dairy operated without a permit prior to July 1999 in violation of the CWA, (2) Willet Dairy discharged pollutants into navigable waterways after July 1999 in violation of its permit and the CWA, (3) Willet Dairy’s operations violated the Resource Conservation and Recovery Act of 1976 (RCRA), and (4) Willet Dairy diverted Schaeffer Brook without a permit in violation of the CWA.
On the first charge, the Appeals Court said Appellants failed to raise this claim properly before the District Court, and therefore it was deemed it waived. Additionally, if Appellants had sufficiently argued the claim below, Willet Dairy’s failure to have a permit before July 1999 is a “wholly past violation,” which cannot be the subject of a CWA citizen suit, and the Dairy has had permit coverage under New York Department of Environmental Conservation’s general permit since July 1999.
On the second charge, the Appeals Court said the “permit shield,” embodied in 33 U.S.C. § 1342(k), protects a CWA permit holder from facing suits challenging the adequacy of its permit. The Appeals Court said, ". . .compliance with an authorized permit is deemed compliance with CWA, so as long as Willet Dairy was acting in accordance with its permit it could not be liable in a citizen suit for CWA violations.
On the third charge, the Appeals Court said, ". . . RCRA establishes a regulatory scheme for the treatment, disposal, and storage of solid and hazardous wastes. . . The RCRA also provides that '[n]othing in this chapter shall be construed to apply to . . . any activity or substance which is subject to the [CWA] . . . except to the extent that such application (or regulation) is not inconsistent with the requirements of [the 10 CWA].' 42 U.S.C. § 6905(a). Appellants’ RCRA claims are based on the same activities and substances that the CWA covers.
On the last issue regarding the diversion of Schaeffer Brook to create a stock pond, which allegedly caused harm to ponds and streams on Appellants’ properties, the Appeals Court said, "This is a new issue for our Circuit and thus we write to clarify our position." The Appeals Court said in December 1999, Willet Dairy diverted the upstream reach of the Schaeffer Brook without contacting the Corps, however, when it sought a "jurisdictional determination" from the Corps on whether it needed a permit, the Corps said it did not have jurisdiction over the pond project because of the exception to Section 1344(a) that allows a party to proceed without a permit if diverting the navigable water is “for the purpose of construction or maintenance of farm or stock ponds. . . ”
However, the Appeals Court notes that there is an exception to this exemption, called the “recapture provision,” which requires a permit if the diversion project is for the purpose of bringing an area “into a use to which it was not previously subject.” Appellants contended that the diversion was for a "new" pond, and a "new" use, so the activity should fall within the "recapture provision." The Appeals Court said, "Other courts have, however, interpreted the recapture provision to mean that a party needs a permit only when it is starting a new farming operation, not when it is building a new pond to support an existing farming operation. . . We agree for substantially the reasons stated by these courts. Any other reading would make the statute incoherent. Given that Section 1344(f)(1)(C) provides a permit exemption for the construction of a stock pond, which is by definition new, that section would be rendered meaningless by an interpretation of the recapture provision that required permits for all new uses, including new ponds. Moreover, even if there was ambiguity over the scope of the recapture provision, we would give deference to the agency interpretation that the recapture provision did not apply in this instance."
Access the complete opinion (click here).
Tuesday, May 6, 2008
OSI, Inc. v. U.S.
May 5: In the U.S. Court of Appeals, Eleventh Circuit, case No. 07-10941. As explained by the Appeals Court, OSI, Inc. (OSI) appealed, for the second time, the grant of summary judgment in favor of the Government on OSI’s claims relating to the Air Force’s use of certain land -- including, in part, land now owned by OSI -- as a landfill during the 1960s, 1970s, and 1980s. OSI brought tort claims under the Federal Tort Claims Act (FTCA), claims of cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and a citizen suit under the Resource Conservation Recovery Act (RCRA). The district court granted summary judgment in favor of the Government on all claims and the Appeals Court agreed and affirmed that decision.
The Appeals Court said, According to the Government, because there is an ongoing CERCLA remedial action taking place, CERCLA bars challenges (including a RCRA citizen suit) to the ongoing cleanup. Because we agree with the Government, we do not reach the merits of the summary judgment question. The Eleventh Circuit concluded, "The district court lacked jurisdiction to hear OSI’s RCRA citizen suit claim while the federal facility remedial action was ongoing. Because the remaining aspects of OSI’s appeal are without merit, the district court’s grant of summary judgment is affirmed."
Access the complete opinion (click here).
The Appeals Court said, According to the Government, because there is an ongoing CERCLA remedial action taking place, CERCLA bars challenges (including a RCRA citizen suit) to the ongoing cleanup. Because we agree with the Government, we do not reach the merits of the summary judgment question. The Eleventh Circuit concluded, "The district court lacked jurisdiction to hear OSI’s RCRA citizen suit claim while the federal facility remedial action was ongoing. Because the remaining aspects of OSI’s appeal are without merit, the district court’s grant of summary judgment is affirmed."
Access the complete opinion (click here).
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