Raritan Baykeeper v. NL Industries, Inc.

Oct 3: In the U.S. Court of Appeals, Third Circuit, Case No. 10-2591. Appealed from the United States District Court for the District of New Jersey. Raritan Baykeeper and the Edison Wetlands Association (collectively, Raritan Baykeeper) brought the suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA) to bring about the remediation of contaminated sediments in the Raritan River. The District Court, citing the involvement and expertise of the New Jersey Department of Environmental Protection, dismissed the action on abstention grounds. The Appeals Court said it concluded that "this case does not call for abstention, and we will vacate the judgment of the District Court."

 

     From the 1930s until 1982, NL Industries (NL) manufactured titanium dioxide pigments on a 440-acre plot of land (the site) surrounded on three sides by the Raritan River. Although NL ceased its operations on the site in 1982, it retained ownership of the property and leased portions of it to other companies, who manufactured sulfuric acid on the site. NL continued to own the site until 2005, when the Sayreville Economic and Redevelopment Agency (SERA) acquired the site by eminent domain. SERA chose O'Neill Properties Group, L.P. (O'Neill) as the site's developer and O'Neill, in turn, formed Sayreville Seaport Associates, L.P. (SSA) to purchase and redevelop the site. SERA, O'Neill, SSA, and the County of Middlesex entered into an agreement controlling the sale of the site. Although the agreement made SSA responsible for most environmental issues at the site, it provided that NL would retain liability for contamination of sediments in the Raritan River. The agreement does not, however, call for any remediation of the sediments.

 

    In 2009, however, the United States Environmental Protection Agency (EPA) ordered remediation of river sediments upstream from the site. Shortly after the EPA action, Raritan Baykeeper brought this suit against NL, SERA, SSA, O'Neill, and an array of government officials and agencies. Under RCRA and CWA Raritan Baykeeper sought injunctive relief requiring the Defendants to remediate sediments in the Raritan River.

 

    The Appeals Court said, "In sum, we conclude that neither primary jurisdiction nor the Burford doctrine calls for abstention in this case. This outcome is consistent with the decisions of our sister circuits. The First Circuit explained that federal courts must ' exercise great caution in considering abstention, ' and that ' the circumstances justifying abstention will be exceedingly rare, ' because declining to hear a case for a reason not enumerated in the RCRA ' would substitute our judgment for that of Congress about the correct balance between respect for state administrative processes and the need for consistent and timely enforcement of RCRA. ' Chico Serv. Station, Inc., 633 F.3d at 31, 32. Similarly, the Seventh Circuit observed that, while ' there may be room for applying the doctrines of abstention or primary jurisdiction . . . in cases in which a state has a formal administrative proceeding in progress that the citizens' suit would disrupt, ' abstention in RCRA ordinarily would amount to ' an end run around the RCRA.' PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998).

 

    "The same logic also applies to CWA actions, since that statute similarly provides for citizen suits except under specific, enumerated circumstances, none of which apply here. Raritan Baykeeper asks us to go a step further and hold that primary jurisdiction and Burford abstention never apply to RCRA and CWA actions. Like our sister circuits, we decline to impose such a general rule. As Judge Posner noted in PMC, Inc., 151 F.3d at 619, abstention might be appropriate in cases with heightened state involvement as evidenced by ' a formal administrative proceeding in process that the citizens' suit would disrupt. ' But such a case is truly the exception, not the rule, and is not present here."

 

    Access the complete opinion (click here). [#Haz, #Water, #CA3]

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SCOTUS Denies Challenge To CA Indirect Air Source Rule

Oct 3: The U.S. Supreme Court refused to hear a case appealed by the National Association of Home Builders (NAHB) regarding the San Joaquin Valley Unified Air Pollution District "Rule 9510," which requires development sites to reduce the amount of pollutants they emit. NAHB sued the District, claiming that Rule 9510 is preempted by the Clean Air Act. The district court held that Rule 9510 is not preempted and in a split decision, the majority Appeals Court affirmed that decision. The majority said, "Rule 9510 is an indirect source review program that is not preempted by section 209(e) of the Clean Air Act. The district court's judgment is therefore affirmed." [See WIMS 12/8/10]. On June 16, 2011, NAHB petitioned for review in the Supreme Court (Case No. 10-1528. 

 

  A release from Earthjustice indicated, the regulation, known as the Indirect Source Rule (ISR) was adopted by the San Joaquin Valley Unified Air Pollution Control District in December 2005 and took effect in March 2006. It requires developers to mitigate pollution from the increased traffic generated by new development. Developers can either incorporate into their projects, elements that will minimize traffic-related emissions such as building near public transit, adding bicycle lanes, or building walkable shopping into the plans, or pay a mitigation fee to the district to be used to purchase off-site emission reductions.

    Paul Cort an attorney for Earthjustice who participated in the litigation of the issue in the lower courts and filed an opposition to the Homebuilders petition for Supreme Court review said, "We were glad to stand with the San Joaquin air district to defend this rule. No special interest should have a free ride in a region where schools and parents are frequently warned to keep children indoors on bad air days." Timothy O'Connor of the Environmental Defense Fund said, "The Supreme Court's action supports this common sense regulation to clean up the air in one of the most polluted areas in the country. Now the trade associations will have to follow the lead of the hundreds of California developers who have complied with this pollution-cutting measure."

    Gordon Nipp of the Sierra Club's Bakersfield chapter said, "Every sector must do its part to help clean up our air in the San Joaquin Valley, some of the worst in the nation. Agriculture is learning to comply with the federal Clean Air Act, and now the homebuilders will join the fight against air pollution, despite their past legal recalcitrance." Earthjustice represented Environmental Defense and the Kern-Kaweah (Bakersfield), Tehipite (Fresno), and Mother Lode (Sacramento) Chapters of the Sierra Club in the lower court litigation.

    Access the Supreme Court denial (click here, see page 71). Access the Supreme Court docket (click here). Access the Earthjustice release (click here). Access the Ninth Circuit opinion (click here). [#Land, #Air, #SupCt]

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Boston Edison Co. v. US

Sep 28: In the U.S. Court of Appeals, Federal Circuit, Case No. 2010-5136 & 2010-5137. Appealed from the United States Court of Federal Claims. The Appeals Court explains that this is another in a series of cases dealing with the consequences of the Federal government's ongoing breach of its contractual obligation to collect and dispose of the nation's nuclear waste. This case involves the Pilgrim Nuclear Power Station in Plymouth, MA.

 

    The Appeals Court said, "Our recent precedent dictates the outcome of two of the issues raised in this litigation -- the right of a non-breaching party contracting with the government to recover indirect overhead costs associated with mitigation activities, and the right of such a party to recover the costs of financing those activities. We affirm the trial court's judgment on both of those issues. There is one novel question presented by this case: whether the sale of a nuclear plant and the transfer of a decommissioning fund affects the rights of the buyer and seller to recover future damages for the government's partial breach of contract. As to that issue, we reverse the trial court and hold that a sale of assets by a non-breaching party does not alter the settled common law principle that when the breaching party has not repudiated the contract and is still expected to perform, damages are not recoverable until they are incurred as a result of the breach. In addition, we address issues involving the award of damages in connection with fees paid to the United States Nuclear Regulatory Commission (NRC), and we remand for further proceedings on that issue."

 

    Access the complete opinion (click here). [#Haz/Nuclear, #CAFed]

 

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Hayden v. Elf Atochem North America

Sep 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-20305. Appeal from the United States District Court for the Southern District of Texas. The appeal arises from the settlement of a class action. The defendant paid substantial sums for res judicata [already judged by a competent court] protection from the claims of persons assertedly injured by the toxic emissions of an industrial plant near Bryan, Texas. The monies were allocated among three subclasses, one of which was to receive medical monitoring. Upon the monitoring program's completion, substantial sums remained unused.

 

    The district court denied the settlement administrator's request to distribute the unused medical-monitoring funds to another subclass of persons suffering serious injuries. Instead, the court repaired to the doctrine of cy pres [i.e. "as near as possible" to that intended] and ordered that the money be given to three charities suggested by the defendant and one selected by the court. The gift of class funds to charity is attacked on two fronts: that the district court moved too quickly from the terms of the settlement agreement to a cy pres distribution, and alternatively that the district court neglected a prerequisite of the cy pres doctrine by not selecting charities with a sufficient nexus to the underlying substantive objectives of the class suit.

 

    The Appeals Court said, "Persuaded by the first contention, we do not reach the second. We hold that the district court abused its discretion by ordering a cy pres distribution in the teeth of the bargained-for terms of the settlement agreement, which required residual funds to be distributed within the class. We reverse the district court's order distributing the unused medical-monitoring funds to third-party charities and remand with instructions that the district court order that the funds be distributed to the subclass comprising the most seriously injured class members."

 

    By way of background, Lillian Hayden and five others instituted this action in April of 1992 by filing suit in State district court in Brazos County, Texas. Seeking to represent themselves and a class of others similarly situated, they sought compensation for exposure to arsenic and other toxic chemicals alleged to have been emitted into the air around Bryan, Texas, by an agrochemicals plant owned and operated by the defendant, Arkema, Inc. (formerly known as Elf Atochem North America, Inc.). The defendant removed the case to Federal court supported by diversity jurisdiction.

 

    At issue in the appeal is the district court's use of the cy pres doctrine to dispose of approximately $830,000 that went unused during the administration of the medical-monitoring program created for the benefit of Subclass B -- one of three subclasses created in the settlement. The program allowed members of Subclass B to forego receipt of a small cash payment and instead enroll in a program through which they would receive regular checkups and physician visits over a five-year period. The aim was to assist members of the subclass in monitoring their health for any indication that they were developing an arsenic-related illness. Two primary factors contributed to the program's not exhausting its allocated funds. First, the initial participation rate was low. Some 329 members of Subclass B -- less than three percent of the total subclass membership -- opted to receive medical monitoring in lieu of a cash payment; just 221 attended their first monitoring examination. Second, in the course of this monitoring, no significant health problems were found. Among those who initially chose to participate, demand for monitoring greatly diminished, yielding a high dropout rate. Only 46 class members participated in all three rounds of screening as scheduled.

 

    Access the complete opinion (click here). [#Toxics, #Air, #CA5]

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American Trucking Associations, Inc. v. The City of Los Angeles

Sep 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-56465. Appealed from the United States District Court for the Central District of California.

 

    Beginning in 2008, the Port of Los Angeles (POLA, or the Port) prohibited motor carriers from operating drayage trucks on Port property unless the motor carriers entered into "concession agreements" with the Port. The concession agreements set forth fourteen specific requirements covering, among other things, truck driver employment, truck maintenance, parking, and Port security. The agreements were adopted as part of the Port's "Clean Truck Program" (CTP), which includes a progressive ban on older (and higher polluting) trucks on Port property, a multi-faceted incentive program to support acquisition of clean trucks, and a system of penalties on transport of cargo by older trucks. The Port adopted the CTP in response to community opposition, including litigation, that had successfully stymied Port growth from the mid-1990s through 2007.

 

    American Trucking Associations, Inc. (ATA, a national association of motor carriers), challenged the concession agreements, arguing that they are preempted by the Federal Aviation Administration Authorization Act (FAAA Act), 49 U.S.C. § 14501 et seq. After obtaining a preliminary injunction against several provisions of the concession agreements, ATA challenged five specific provisions at trial. The district court held that none of the challenged provisions fell within the scope of FAAA Act preemption, first because some did not relate to motor carriers' rates, routes, and services, and second because the State adopted the entire agreement (and the challenged provisions in particular) in its capacity as a market participant, rather than a market regulator. The district court further held that the FAAA Act's exemption for regulation "genuinely responsive to motor vehicle safety" saved from preemption the provision requiring motor carriers to create and administer regular maintenance plans.

 

    ATA appealed. In a split decision, the majority Appeals Court affirmed the district court in large part, but reversed its decision that the employee-driver provision of the concession agreement falls within the market participant doctrine and is not preempted. The Majority said further, "The district court meticulously identified and applied the governing law. We affirm the district court's holdings that the financial capability, maintenance, off-street parking, and placard provisions are not preempted. We reverse the district court's conclusion that the employee-driver provision is saved from preemption by the market participant doctrine, and remand for further proceedings consistent with this opinion."

 

    The dissenting justice said, "I must dissent from the majority opinion because: (1) the market participant exception to preemption does not apply. Drayage services (not port services) form the relevant market, and the Port of Los Angeles (the Port) acts as a regulator of drayage services. (2) Even assuming the Port qualifies as a proprietor, the off-street parking provisions are preempted, because they affect parties unrelated to contractual obligations to the Port. (3) The placard provision is preempted and not saved by the market participant doctrine or the safety exception, because California cannot revoke access to channels of interstate commerce and identification requirements on motor carriers are expressly preempted under 49 U.S.C. § 14506(a)."

 

    American Trucking Associations President and CEO Bill Graves issued a release hailing the decision as a decisive victory for the trucking industry and consumers. He said, "By striking down the Port's unjustified ban on owner-operators, the Court has upheld the rights of trucking companies to structure their businesses to maximize efficiency and productivity. By throwing out the ban, the court has ensured that competition, not government regulation, will establish motor carrier's rates, routes, and services. This is a win for all involved; trucking companies; small business owner-operators; freight shippers; and ultimately average American consumers. The historic gains in air quality at the Port clearly show that the interests of clean air have been served without running independent contractors out of the Port.

    He said, "This plan was never about clean air, it was about promoting special interests of a few well-connected, labor groups. "Successful clean trucks plans in Long Beach, Seattle and the Ports of New York and New Jersey have shown you can improve air quality without forcing owner-operators out of your port." ATA Chief Counsel Robert Digges said, "We are evaluating the rest of the court's ruling. While the court upheld our argument on the central issue, we will be deciding whether a further appeal is warranted. We firmly believe the other challenged provisions of the Concession Agreement should have been preempted as explained in a strong dissent by the panel's Chief Judge. Should we appeal, that dissent will be very helpful to our effort."

    Access the complete opinion and dissent (click here). Access a release from ATA (click here). [#Air, #Transport, #CA9]
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Minard Run Oil Co. v. U.S. Forest Service

Sep 20: In the U.S. Court of Appeals, Third Circuit, Case Nos. 10-1265 and 10-2332. Appealed from the United States District Court for the Western District of Pennsylvania. The Appeals Court explains that this appeal concerns a dispute between the U.S. Forest Service (the Service) and owners of mineral rights in the Allegheny National Forest (ANF). Although the Service manages the surface of the ANF for the United States, mineral rights in most of the ANF are privately owned. Mineral rights owners are entitled to reasonable use of the surface to drill for oil or gas and from 1980 until recently the Service and mineral owners had managed drilling in the ANF through a cooperative process. Mineral rights owners would provide 60 days advance notice to the Service of their drilling plans and the Service would issue owners a Notice to Proceed (NTP), which acknowledged receipt of notice and memorialized any agreements between the Service and the mineral owner about the drilling operations. However, as a result of a settlement agreement with environmental groups, the Service dramatically changed its policy and decided to postpone the issuance of NTPs until a multi-year, forest-wide Environmental Impact Study (EIS) under the National Environmental Policy Act (NEPA) is completed.

 

    Mineral owners and related businesses affected by this new policy sought to enjoin the Service from implementing the policy, which would halt new drilling in the ANF. After holding a hearing and carefully considering the evidence, the District Court issued a preliminary injunction against the Service, prohibiting it from making the completion of the forest-wide EIS a condition for issuing NTPs and requiring it to return to its prior, cooperative process for issuing NTPs. The Service, the Attorney General, and several environmental organizations appeal the preliminary injunction, contending that the District Court lacked jurisdiction and erred in issuing a preliminary injunction. However, the Appeals Court affirmed in all respects the District Court's "thorough, well-reasoned opinion."

   

    The district court found as follows: "The Settlement Agreement and the Marten Statement represented 'a fundamental „sea change' in the Service's policy; therefore, they constituted final agency action subject to review under the APA. . . The effect of this policy was a 'drilling ban,' which precluded new drilling in the ANF (with the exception of the 54 grandfathered NTP applications) until the Service completed a forest-wide EIS. . . The Service had instituted the drilling ban without following the APA's notice and comment procedures, and the ban was not justified under NEPA because the issuing of an NTP was not a major federal action. The preparation of the EIS would likely last several years, resulting in irreparable harm to the plaintiffs, and the balance of the equities and the public interest favored an injunction."

 

    Access the complete opinion (click here). [#Energy, #Land, #CA3]

 

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Natural Resources Defense Council v. U.S. EPA

Sep 16: In the U.S. Court of Appeals, Second Circuit, Case No. 08-3771. Natural Resources Defense Council, Inc. (NRDC) sought review of an Environmental Protection Agency (EPA) order overruling NRDC's objections to, inter alia, EPA's risk assessments for the pesticide dichlorvos, and denying NRDC's requests for a public evidentiary hearing. Because EPA conducted certain dichlorvos risk assessments without using a tenfold children's safety factor that Congress provided should presumptively apply, and EPA failed to explain why it did not apply this margin of safety, the Appeals Court granted NRDC's petition for review in part, vacated EPA's order in part, and remanded the case for further proceedings.

 

    The Appeals Court indicates that, "In its petition, NRDC requested that EPA revoke all tolerances and cancel all registrations for dichlorvos. NRDC argued, inter alia, that EPA relied on inadequate data in its 2000 preliminary risk assessment, inadequately performed that risk assessment, and failed to apply required safety factors. Despite the numerous issues raised in its petition, we focus here on only the two issues relevant to NRDC's appeal: (1) EPA's reliance on a 1997 intentional human dosing study by A.J. Gledhill; and (2) EPA's failure to provide a legally adequate rationale for applying a children's safety factor lower than the FQPA's presumptive 10X factor."

 

    Importantly, the Appeals Court said, "EPA did not explain how this conclusion related to 'potential pre- and post-natal toxicity and completeness of the data with respect to infants and children.' See 21 U.S.C. § 346a(b)(2)(C)(ii). FQPA requires such an explanation if a 10X children's safety factor is not used. . . Because EPA failed to explain why it did not use a 10X children's safety factor for dichlorvos risk assessments that relied on the Gledhill study, EPA acted in an arbitrary and capricious manner. Accordingly, we vacate those portions of EPA's July 23, 2008 order assessing the risk of dichlorvos based on the Gledhill study, as it was not 'reliable data' on which EPA could base its decision to choose a lower children's safety factor.. ."

 

    On a separate issue, the Appeals Court explains, "NRDC challenges neither the data on which EPA relies, nor the way in which the data relate to infants and children. Instead, NRDC argues that regardless of other evidence of potential endocrine-related effects, EPA must apply the 10X children's safety factor unless it relies on data from its estrogen disruptor screening program. We reject this argument." Explaining further, "FQPA specifies that EPA may apply a children's safety factor of less than 10X if it

determines, 'on the basis of reliable data,' that a margin lower than 10X "will be safe for infants and children. . . Congress did not bar EPA from concluding that it has 'reliable data' regarding potential endocrine-related effects. . . NRDC does not challenge the non-Gledhill risk assessments on any other basis. Therefore, we deny NRDC's request to find arbitrary and capricious the risk assessments not based on the Gledhill study. . ."

 

    Access the complete opinion (click here). [#Toxics, #CA2]

 

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