Thursday, April 4, 2013

Ecological Rights Foundation v. PG&E

Apr 3: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-16042. Appealed from the United States District Court for the Northern District of California. In this case the panel affirmed the dismissal of a citizen suit alleging that utility poles discharged wood preservative into the environment in violation of the Clean Water Act and the Resource Conservation and Recovery Act.
 
    Defendants-Appellees Pacific Gas & Electric Company (PG&E) and Pacific Bell Telephone Company (Pacific Bell) own and maintain utility poles throughout the San Francisco Bay Area. Many of the poles are treated with a wood preservative that contains pentachlorophenol (PCP), a general biocide, and other chemicals. Plaintiff-Appellant Ecological Rights Foundation (ERF) filed this action against both companies, alleging that the poles discharge wood preservative into the environment in violation of the federal Clean Water Act (CWA) and the Resource Conservation and Recovery Act.
 
    The Appeals Court summarizes the case saying, "The district court, which had jurisdiction. . . dismissed ERF's action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), without leave to amend. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. ERF fails to state a claim under the CWA because discharges of stormwater from the utility poles are neither a 'point source discharge' nor 'associated with industrial activity.' ERF also fails to state a claim under RCRA because wood preservative that escapes from the utility poles is not a 'solid waste.' Finally, the district court did not abuse its discretion in denying ERF leave to amend; ERF had, and took advantage of, two opportunities to amend its complaint, and none of ERF's proposed amendments would cure the defects in its allegations."
 
    In the CWA part of the case, ERF argues that utility poles are themselves "conveyances." In other words, ERF contends that "point sources" are not just "ditches, culverts, and similar channels," but any "tangible, identifiable thing." The Appeals Court indicates, ". . . EPA has not yet determined whether utility poles are point sources; until EPA addresses that question, we look to cases for guidance. . . The case law does not support ERF's attempt to characterize the poles as point sources. . . we conclude that, in the absence of any guidance from EPA, utility poles simply are not 'discernible, confined and discrete conveyance[s]' that 'channel[ ] and control[ ]' stormwater."
 
    The Appeals Court also indicates that, ". . .stormwater runoff from the defendants' utility poles does not fit within EPA's definition of 'discharge associated with industrial activity,' which is 'the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage at an industrial plant. . . .'"
 
    On the RCRA issue, ERF alleges that an "imminent and substantial endangerment" is caused by PCP-based wood preservative that "leak[s], spill[s], and drip[s]" from the defendants' utility poles, and from "[d]ust impregnated with" the preservative that "is blown into the air during dry seasons." The Appeals Court says, "Because ERF does not allege that the preservative is 'hazardous waste,' the 'crux of the case turns on the issue of whether [that preservative] is "solid waste" within the meaning of RCRA. . . We conclude that it is not."
 
    On the RCRA issue, the Appeals Court concludes, ". . .common sense compels what RCRA, the case law, and EPA regulations and guidance imply. As with ERF's CWA claim, accepting ERF's characterization of preservative that seeps from wooden utility poles as a RCRA 'solid waste' would lead to untenable results. As of 2008, there were 36 million utility-owned wood poles in service across the United States that have been treated with PCP. It defies reason to suggest that each of those poles, while in use, is producing 'solid waste' under RCRA, and thus must be replaced. Indeed, if ERF is correct, everything from wood preservative that leaches from railroad ties to lead paint that naturally chips away from houses would be 'solid waste,'  and thus potentially actionable. . .
 
    "Absent contrary EPA guidance to which we might defer, the more tenable reading of RCRA is the one we have given it: PCP-based wood preservative that is released into the environment as a natural, expected consequence of its intended use -- as a preservative for wooden utility poles -- is not automatically 'solid waste' under RCRA's definition of that term."
 
    Access the complete opinion (click here). [#Water, #Haz, #CA9]
 
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Posted by JPMcJ at 12:35 PM 1 comments

Wednesday, April 3, 2013

Entergy Nuclear FitzPatrick, LLC v. U.S.

Apr 2: In the U.S. Court of Appeals, Federal Circuit, Case No. 2012-5059. Appeal from the United States Court of Federal Claims. The Appeals Court summarizes indicating that the interlocutory appeal is the latest in a line of attempts by the government to raise the "unavoidable delays" defense in breach of contract actions stemming from its failure to accept Spent Nuclear Fuel (SNF) from the nation's nuclear utilities. In a combination of two decisions, the United States Court of Federal Claims struck the government's affirmative defense. The Appeals Court said, "Because the Court of Federal Claims correctly applied the Nebraska Public Power rule, this court affirms the decision to strike the government's unavoidable delays defense."
 
    The Appeals Court reminds that in early 1983, the Nuclear Waste Policy Act (NWPA) established a comprehensive scheme to accept and dispose of SNF and other high-level radioactive waste (HLW) generated from the operation of nuclear power plants. Addressing the "national problem" of storage and disposal of these materials, the Act imposed on the government the responsibility to provide permanent disposal, while the costs of that disposal "should be the responsibility of the generators and owners of such waste and spent fuel." The Act also made the utilities responsible to provide and pay for SNF storage until the United States Department of Energy (DOE) accepts the material. In compliance with the statute, the Standard Contract states that DOE will begin acceptance of SNF "not later than January 31, 1998," in exchange for fees paid by the utilities. By 1994, DOE knew it would be unable to accept SNF by the January 31, 1998 deadline.
 
    To date, the utilities continue to make payments totaling hundreds of millions of dollars each year, even though DOE has yet to accept any nuclear waste. So far, dozens of Standard Contract holders have sued the government in the Court of Federal Claims seeking damages for DOE's delay in accepting SNF. The Federal Circuit has addressed the Standard Contract on numerous occasions and held that the government's failure to begin accepting SNF as of January 31, 1998 is a partial breach of the contract.
 
    The Appeals Court indicates, "The government's appeal challenges the scope of this court's en banc Nebraska Public Power decision. The government avers it may raise the Standard Contract's unavoidable delays clause as a defense limiting its damages for failing to accept SNF starting in January 1998. It argues, based on this court's later Southern Nuclear panel decision, that Nebraska Public Power only prevents the unavoidable delays clause as a defense to liability. . . In supplemental briefing before the trial court in this
case, the government outlined its intended use of the defense. It indicated that 'the United States does not propose to use the unavoidable delays defense as a get-out-of-jail-free card' concerning liability. . .
 
    "The government specifically asserts, 'the unavoidable delays that DOE has encountered as a result of the [sic] Nevada's conduct would have delayed the commencement of SNF acceptance by at least 31 months, or from January 30, 1998 through at least August 2000.' . . . For that reason, the government contends that Entergy's damages for SNF storage resulting from the government's delay in performance 'did not commence until September 2000 -- the earliest that performance could have begun given the Unavoidable Delays that DOE encountered.'"
 
    In sum, the Appeals Court concludes, "The government had an unconditional statutory obligation to accept SNF beginning by January 31, 1998. Additionally, the government's acceptance of liability for breaching its statutory obligation to accept SNF is inconsistent with its contention that the unavoidable delays clause allows a reduction in damages resulting from its failure to begin acceptance of SNF in January 1998. This court has expressly established that breach of the Standard Contract began on January 31, 1998. Maine
Yankee, 225 F.3d at 1341–42. In contrast, as the Court of Federal Claims has noted, if performance is excused under the unavoidable delays clause until a date after January 1998, then there is no basis for determining liability for partial breach beginning January 31, 1998. . . the trial court's denial of the motion to reconsider is affirmed."
 
    Access the complete opinion (click here). [#Haz/Nuclear, #Energy/Nuclear, #CAFed]
 
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Posted by JPMcJ at 2:38 PM 0 comments

Monday, April 1, 2013

Supreme Court Denies Hearing NAAQS NO2 Case

Apr 1: The U.S. Supreme Court (Case No. 12-760) denied a petition by the American Petroleum Institute (API) hear the case against U.S. EPA regarding the Agency's final rule adopting a new, one-hour primary national ambient air quality standard (NAAQS) for nitrogen dioxide.  On July 17, the U.S. Court of Appeals, D.C. Circuit, in Case Nos. 10-1079 & 10-1080, ruled  "We deny the petitions insofar as they challenge the EPA's adoption of the NAAQS, but because the EPA's statement in the preamble was not final, we lack jurisdiction to consider those portions of the petitions." API, the Utility Air Regulatory Group, and the Interstate Natural Gas Association of America (collectively the API) had petitioned for review of that rule, claiming EPA, in adopting the NAAQS, was arbitrary and capricious and violated the Clean Air Act. API also challenges a statement in the preamble to the final rule regarding EPA's intended implementation of the NAAQS [See WIMS 7/18/12].
 
    In its Final Rule, EPA adopted a new one-hour primary NAAQS, requiring in effect that "the three-year average of the annual 98th percentile of the daily maximum 1-hour average concentration [be] less than or equal to 100 ppb." The EPA concluded this standard was needed "to provide protection for asthmatics and other at-risk populations against an array of adverse respiratory health effects related to short-term NO2 exposure."
 
    The Appeals Court ruled in part, "Considering its duty to err on the side of caution, we conclude the EPA did not act unreasonably by comparing the benefits of the one-hour standard against not only a scenario based upon existing air quality but also upon an alternate scenario in which areas just meet the annual NAAQS set in 1971. For that reason, and because the record adequately supports the EPA's conclusion that material negative health effects result from ambient air concentrations as low as the 100 ppb level, we cannot conclude the agency was arbitrary and capricious or violated the Act in adopting that level as the new one-hour NAAQS for NO2."
 
    Access the Supreme Court order (click here, page 3). Access the Supreme Court docket (click here). Access EPA's NO2 NAAQS website for more information (click here). [#Air, #SupCt, #CADC]
 
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Posted by JPMcJ at 4:15 PM 0 comments

Friday, March 29, 2013

USA v. DTE Energy

Mar 28: In the U.S. Court of Appeals, Sixth Circuit, Case No. 11-2328. Appealed from the United States District Court for the Eastern District of Michigan at Detroit. In this split decision the majority indicates that U.S. Environmental Protection Agency (EPA) regulations implementing the Clean Air Act require owners and operators of any major pollutant emitting source who plan construction projects at the source to make a preconstruction projection of whether and to what extent emissions from the source will increase following construction. That projection determines whether the project constitutes a "major modification" and thus requires a permit.
 
    The majority Appeals Court said, "This appeal raises a single question: can EPA challenge that projection before there is post-construction data to prove or disprove it?" The district court held that it cannot and granted summary judgment to defendants DTE Energy and Detroit Edison. However, the majority concluded, "While the regulations allow operators to undertake projects without having EPA second-guess their projections, EPA is not categorically prevented from challenging even blatant violations of its regulations until long after modifications are made. The district court's sweeping reading of the regulations to that effect is at odds with the Clean Air Act. It is therefore necessary to reverse and remand."
 
    After recounting the changes in the regulations over time, and the three steps involved in determining whether a planned project requires a permit, the majority indicates, "Whether a permit is ultimately required is a high stakes determination. If the operator needs to obtain a permit, the source loses grandfathered status under the Clean Air Act. This means the operator must install modern pollution controls such as flue gas desulfurization for sulfur dioxide and selective catalytic reduction for nitrogen oxides. These pollution controls lead to enormous emissions reductions. For example, EPA's expert estimated that installation of these modern pollution controls at DTE's Monroe Unit #2, the source at issue in this case, would reduce the plant's sulfur dioxide emissions by at least 95% and its nitrogen oxide emissions by at least 90%. However, installing these complex technologies is very expensive for operators. According to DTE, it is spending $1.7 billion to install these technologies at Monroe [Monroe Power Plant in Monroe, MI]."
 
    The Appeals Court indicates that, DTE performed the required emissions calculations and projected a post-project emissions increase of 3,701 tons per year of sulfur dioxide and 4,096 tons per year of nitrogen oxides. According to the regulations, an increase of 40 tons per year of either sulfur dioxide or nitrogen oxides is significant. 40 C.F.R. § 52.21(b)(23)(i). However, DTE determined that the entire emissions increase fell under the demand growth exclusion. DTE submitted these calculations to its reviewing authority, the Michigan Department of Environmental Quality, noting that DTE "continues to believe there is no reasonable possibility that the proposed project will result in a significant emissions increase and thus [notification, recordkeeping, and reporting] requirements do not apply." MDEQ did not take any action in response to DTE's submission.
 
    EPA learned of the construction project in May of 2010, two months after the project began. On June 4, 2010, EPA issued a notice of violation. The notice stated that the project "resulted in a significant net emissions increase" and therefore "constitutes a 'major modification.'" After attempts to resolve its disagreement with DTE without litigation failed, the United States filed a complaint against DTE and moved for a preliminary injunction.
 
    The majority somewhat summarizes the dispute in a paragraph when it says, "Over several decades of regulation and litigation, EPA has created a system intended to protect air quality, conserve environmental agencies' scarce resources, and minimize costs for regulated industries. The system depends on operators' making accurate projections before embarking on construction projects. If operators had to defend every projection to the agency's satisfaction, companies would hesitate to make any changes, including those that may improve air quality. On the other hand, if EPA were barred from challenging preconstruction projections that fail to follow regulations, New Source Review would cease to be a preconstruction review program. The 1992 and 2002 changes to New Source Review regulations take a middle road by trusting operators to make projections but giving them specific instructions to follow."
 
    The majority notes and concludes, "EPA warns, however, that after the five-year monitoring period is over, DTE could surreptitiously increase its emissions, having permanently avoided permitting for that change. . . While EPA does presume that emissions increases after five years are unrelated to the project, id. at 80,197, that presumption can be overcome, for example, by demonstrating that the preconstruction facility could not handle such an increase. Neither the statute nor the regulations create a time barrier. EPA can bring an enforcement action whenever emissions increase, so long as the increase is traceable to the construction. See 40 C.F.R. § 52.21(a)(2)(iv)(b). In light of this, EPA's warnings ring hollow.
 
    "Our reversal does not constitute endorsement of EPA's suggestions. A preconstruction projection is subject to an enforcement action by EPA to ensure that the projection is made pursuant to the requirements of the regulations. The district court having ruled to the contrary, we must reverse and remand. But we make no determination as to whether defendants have complied with those projection regulations. The district court's order is reversed, and this matter is remanded for further proceedings consistent with this opinion."
 
    In the dissenting opinion, the Justice says, "The majority holds that the USEPA may challenge the operator's preconstruction emissions projection, regardless of the actual emissions, and remands for USEPA to pursue such proceedings. While I agree with much of the majority opinion, I must ultimately dissent . . ." The dissent indicates, "This project caused no emissions increase and, in fact, resulted in an emissions decrease. All of which begs the question: what exactly does the majority anticipate the district court
will do with this on remand? Allow the USEPA to challenge preconstruction projections that actual events have already proven correct? I would hold that these subsequent actual results render the present dispute moot. . . I would be inclined to dismiss this appeal as moot. Barring that, I would affirm the judgment of the district court."
 
    Access the complete opinion and dissent (click here). [#Air, #MIAir, #CA6]
 
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Posted by JPMcJ at 10:03 AM 0 comments

Wednesday, March 27, 2013

Universal Cooperatives, Inc. v. AAC Flying Service, Inc.

Mar 26: In the U.S. Court of Appeals, Eighth Circuit, Case No. 12-1970. Appealed from the U.S. District Court for the Eastern District of Arkansas - Little Rock. The Appeals Court summarized the case saying, Universal Crop Protection Alliance, LLC, a formulator and distributor of a herbicide known as 2,4-D (or 2,4-D Amine), and its parent company, Universal Cooperatives (collectively, Universal), successfully defended a lawsuit brought by a group of cotton farmers in Arkansas state court for damages arising from off-target aerial application of the herbicide. Universal now sues several aerial herbicide applicators (collectively, Crop Dusters) who were not parties to the cotton farmers' litigation, seeking to recover its attorney's fees incurred during the cotton farmers' litigation. The Appeals Court says, "The district court dismissed the complaint for failure to state a claim, predicting that, under the circumstances presented, the Arkansas Supreme Court would not recognize a cause of action against a third party for attorney's fees incurred in separate litigation. Universal appeals, and we affirm."
 
    Finally, the Appeals Court rules, "Because the Arkansas Supreme Court most recently has rejected any cause of action against a third party for attorney's fees incurred in earlier litigation against another party, and in this case there is no duty running from the third party to the plaintiff that would support such a cause of action in any event, we affirm the dismissal of Universal's claims based on the third-party-litigation exception to the American Rule and Restatement (Second) of Torts section 914(2)."
 
    Access the complete opinion (click here). [#Toxics, #CA8]
 
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Posted by JPMcJ at 4:42 PM 0 comments

Tuesday, March 26, 2013

Iowa League Of Cities v. U.S. EPA

Mar 25: In the U.S. Court of Appeals, Eighth Circuit, Case No. 11-3412. Petition for Review of an Order of U.S. EPA. The case involves a determination by the Appeals Court that two letters sent by the EPA to Senator Charles Grassley with respect to bacteria mixing zones and blending in wastewater treatment facilities constituted binding promulgations and effluent limitations under the Clean Water Act in violation of the Administrative Procedures Act.
 
    The Appeals Court explains that the Iowa League of Cities (League) seeks direct appellate review of two letters sent by U.S. EPA to Senator Charles Grassley. The League argues that these letters effectively set forth new regulatory requirements with respect to water treatment processes at municipally owned sewer systems. According to the League, the EPA not only lacks the statutory authority to impose the regulations, but it violated the Administrative Procedures Act (APA), by implementing them without first proceeding through the notice and comment procedures for Agency rulemaking. The Appeals Court agreed and vacated the requirements of the letter under APA section 706(2)(C), (D).
 
    According to EPA, the "guidance letters" sent to Senator Grassley were merely discussing existing regulatory requirements. The League disagreed, viewing the letters as contradicting both the Clean Water Act (CWA) and the EPA's lawfully promulgated regulations. The two areas of regulation addressed in the challenged EPA letters are "mixing zones" and "blending."
 
    Much of the argument involves a treatment system known as ACTIFLO, a physical/chemical process that uses ballasted flocculation. The League argues that by prohibiting the use of ACTIFLO internally, as one element of a facility's secondary treatment procedures, EPA is effectively dictating treatment design, despite the Agency's acknowledgment that the bypass rule and secondary treatment regulations do not allow for such determinations at the Federal level. The League also claims that the EPA is effectively applying secondary treatment effluent limitations within a treatment facility; that is, it is applying effluent limitations to the individual streams exiting peak flow treatment units, instead of at the end of the pipe. The EPA responds that using ACTIFLO to process peak wet weather flows diverts water from biological secondary treatment units, and therefore subjecting its use to a no-feasible-alternatives analysis comports with the plain language of the bypass rule.
 
    The Appeals Court determines that, ". . .the letters can be considered 'promulgations' for the purposes of establishing our jurisdiction under section 509(b)(1)(E) because they have a binding effect on regulated entities. 'If an agency acts as if a document issued at headquarters is controlling in the field, if it treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or State permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document, then the agency's document is for all practical purposes "binding."'" [citing] Appalachian Power Co., 208 F.3d at 1021].
 
    The Appeals Court concludes, ". . .we deny the EPA's motion to dismiss and grant the League's petition for review. We vacate both the mixing zone rule in the June 2011 letter and the blending rule in the September 2011 letter as procedurally invalid. Further, we vacate the blending rule as in excess of statutory authority insofar as it  would impose the effluent limitations of the secondary treatment regulations internally, rather than at the point of discharge into navigable waters. We remand to the EPA for further consideration."
 
    Access the complete opinion (click here). [#Water/CSO, #CA8]
 
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Posted by JPMcJ at 4:28 PM 0 comments

Friday, March 22, 2013

NRDC v. U.S. Food & Drug Administration

Mar 21: In the U.S. Court of Appeals, Second Circuit, Case No. 11-422. Appealed from the U.S. District Court for the Southern District of New York. The Appeals Court explains that at issue is whether NRDC has standing under Article III of the U.S. Constitution to bring this action to compel FDA to finalize its regulation of triclosan and triclocarban, two chemicals used in over-the-counter antiseptic antimicrobial soap.
 
    The Appeals Court holds that "NRDC has presented evidence of standing sufficient to withstand summary judgment as to the regulation of triclosan, but not as to the regulation of triclocarban. As to triclosan, standing may be based on exposure to a potentially dangerous product, and NRDC's evidence establishes that triclosan is potentially dangerous and that at least one of its members is frequently exposed to triclosan-containing soap. As to triclocarban, NRDC presented no evidence of members' direct exposure but relied on evidence that the proliferation of triclocarban may contribute to the development of antibiotic-resistant bacteria. This evidence is insufficiently particular to support standing. . . Accordingly, we vacate the district court's grant of summary judgment and remand for further proceedings."
 
    The Appeals Court indicates that, "The district court granted summary judgment in favor of FDA and dismissed the suit for lack of standing. Assuming without deciding that exposure to triclosan was cognizable as an injury for standing purposes, the district court concluded that NRDC lacked standing because its members could avoid their workplace exposure to triclosan by purchasing antimicrobial-free soap for use at work."
 
    The Appeals Court said, "At issue is whether the potential avoidability of triclosan exposure at the workplace -- either by purchasing triclosan-free soap or by advocating with employers to supply triclosan-free soap -- renders the exposure "self-inflicted" so as to vitiate the causal link between FDA's alleged regulatory delay and NRDC members' triclosan exposure. We hold that neither the availability of triclosan-free soap for purchase nor the possibility that NRDC members' employers might be willing to supply triclosan-free soap prevents NRDC from establishing that the triclosan exposure is fairly traceable to FDA's alleged unreasonable delay in regulating triclosan.
 
    "The inquiry as to triclocarban requires us to determine whether the existence of a chemical that may contribute to the development of antimicrobial- or antibiotic-resistant bacteria satisfies the injury-in-fact requirement. We hold that it does not. . . NRDC provided no evidence that its members were directly exposed to triclocarban. Its theory of standing as to triclocarban thus cannot be that, under Baur, its members are exposed to a potentially dangerous substance. Instead, NRDC argues that its members suffer injury in fact due to FDA's alleged delay in finalizing its regulation of triclocarban because the proliferation of triclocarban, together with other antimicrobial antiseptic chemicals, may lead to the development of antibiotic-resistant bacteria."
 
    Access the complete opinion (click here). [#Toxics, #CA2]
 
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Posted by JPMcJ at 4:18 PM 0 comments
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