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]

DVL, Inc. v. Niagara Mohawk Power, Et Al

Aug 2: In the U.S. Court of Appeals, Second Circuit, Summary Order number 11-26-cv. Appealed from the judgment of the United States District Court for the Northern District of New York. Plaintiff-appellant DVL, Inc. (DVL) is a commercial real estate owner that acquired a piece of property in Fort Edward, New York (the DVL Site) in

2002. At the time of acquisition, DVL was unaware that soil at the Site contained quantities of polychlorinated biphenyls (PCBs). In 2003, DVL learned that the New York State Department of Environmental Conservation (DEC) was concerned about PCB contamination at the DVL Site. A preliminary site assessment conducted by an engineering firm retained by DEC from 2003 to 2004 revealed the presence of several types of PCBs in soil at the Site. DVL subsequently hired an environmental consulting

firm to investigate and remediate the contamination at the Site, thereby incurring substantial expenses.

 

    On October 11, 2007, DVL initiated this action against defendants-appellees Niagara Mohawk Power Corporation, National Grid USA, National Grid, and National Grid USA Service Company, Inc. (collectively, Niagara), and General Electric Company (GE), alleging that they had disposed of PCBs at the DVL Site and were therefore liable for DVL's clean-up costs and damages. DVL's complaint asserts claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the New York State common law of indemnification, trespass, and nuisance.

 

    On December 6, 2010, the district court denied DVL's motion for partial summary judgment as to liability, granted Niagara's and GE's motions for summary judgment, and granted GE's cross-motion to strike certain undisclosed expert testimony. The Appeals Court ruled, "We affirm for substantially the reasons set forth in the district court's thorough and well-reasoned opinion."

 

    On the CERCLA issues, the Appeals Court indicates, "The district court held that DVL failed to adduce sufficient evidence that the defendants disposed or arranged for the disposal of PCBs at the DVL Site, and accordingly denied DVL's motion for partial summary judgment as to liability and granted the defendants' motions for summary judgment. We agree with the district court's analysis, and therefore affirm. With respect to GE, DVL argues on appeal that it presented various pieces of circumstantial evidence which, taken together, establish that GE arranged for the disposal of PCBs at the DVL Site. However, much of this evidence concerns activities with no connection to the DVL Site." Finally, the Appeals Court rules, "We have considered all of the plaintiff's arguments in light of all of the evidence in the record and find them to be without merit. Accordingly, we affirm the judgment of the district court."

 

    Access the complete Summary Order (click here). [#Remed, #CA2] 

 

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Luminant Generation Company, et al v. U.S. EPA

Jul 30: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60934. Petitions for Review of Orders of the Environmental Protection Agency. The Appeals Court explains that two sets of petitioners, hereinafter referred to as "Industry Petitioners" and "Environmental Petitioners," seek review of the United States Environmental Protection Agency's (EPA) final rule partially approving and partially disapproving the most recent revision to Texas's State Implementation Plan (SIP) submitted by the Texas Commission on Environmental Quality (TCEQ) pursuant to the Clean Air Act (CAA). The Industry Petitioners include Luminant Generation Co. LLC, Oak Grove Management Co. LLC, Big Brown Power Co. LLC, and Sandow Power Co. LLC. The Environmental Petitioners include Environmental Integrity Project, Sierra Club, Environment Texas Citizen Lobby, Inc., Citizens for Environmental Justice, Texas Environmental Justice Advocacy Services, Air Alliance Houston, and Community In-Power and Development Association.

 

    In summary, the Appeals Court concludes, "Because we find that the EPA did not act arbitrarily or capriciously, or contrary to law, or in excess of its statutory authority, in its partial approval and partial disapproval of Texas's SIP revision, we deny both petitions for review."

 

    In its final rule which became effective on January 10, 2011, the EPA partially approved and partially disapproved the most recent revision to Texas's SIP which was submitted by the TCEQ in 2006. The portion of the SIP at issue creates an affirmative defense against civil penalties for excess emissions during both planned and unplanned startup, shutdown, and maintenance/malfunction (SSM) events. The EPA approved the portion of the SIP revision providing an affirmative defense against civil penalties for unplanned SSM events and disapproved the portion of the SIP revision providing an affirmative defense against civil penalties for planned SSM events.

 

    Environmental Petitioners argue that the EPA's approval of the affirmative defense for unplanned SSM events is in excess of the agency's statutory authority and is not in accordance with the Act. Specifically, petitioners argue that the final rule conflicts with the plain language of the Act authorizing civil penalties in EPA and citizen suit enforcement actions, as well as the Act's requirement that the state permitting authority be able to assess civil penalties. Environmental Petitioners further argue that, even if the affirmative defense against civil penalties for excess emissions resulting from unplanned SSM activity is not contrary to the CAA, the EPA's approval was arbitrary and capricious. Finally, Environmental Petitioners argue that, in approving the affirmative defense for unplanned SSM activity, the EPA altered the meaning of the SIP as submitted by Texas. We address each of these

arguments in turn.

 

    Industry Petitioners argue that the portion of the SIP revision containing the affirmative defense for planned SSM activity fully complies with the CAA and should have been approved by the EPA. They further argue that the EPA's partial disapproval of the SIP revision was arbitrary, capricious, and contrary to law. In the alternative, Industry Petitioners argue that the EPA should have severed and approved the affirmative defense for planned startup and shutdown activity, even if it disapproved the affirmative defense for planned maintenance activity. Industry Petitioners also request that approval of the SIP be backdated to June 30, 2006, so as to eliminate any gap between the expiration of the previous affirmative defense and the current affirmative defense.

    The Appeals Court ruled in part that, "EPA in its partial disapproval of the SIP revision adheres to its past policy guidance. Moreover, the record indicates that the EPA's partial disapproval of the plan was the result of a formal and deliberative decision-making process. Therefore, we hold that the agency's action disapproving the portion of the SIP providing an affirmative defense for planned SSM activity is entitled to Chevron deference."

 

    The Appeals Court also determined in part, ". . .we uphold the EPA's disapproval of the affirmative defense as it applies to planned startup and shutdown activity. Regardless of whether the activity at issue is planned maintenance or planned startup/shutdown, the improper cross-referencing in subsection (h) to subsection (c) leads to an overly-broad applicability of the defense. In addition, as stated, it is within the agency's discretion to exercise its partial approval and disapproval power with regard to SIP submittals."

 

    Finally, the Appeals Court concludes, ". . .we conclude that the EPA did not act arbitrarily or capriciously, contrary to law, or in excess of its statutory authority, in its partial approval and partial disapproval of Texas's SIP revision. We therefore deny the petitions for review submitted by both Environmental Petitioners and Industry Petitioners."

 

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

 

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League of Wilderness Defenders v. U.S. Forest Service

Jul 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35451. Appealed from the United States District Court for the District of Oregon. The Appeals Court explains that this case involves an Experimental Forest Thinning, Fuels Reduction, and Research Project (the Project) in the Deschutes National Forest in the eastern Cascades of central Oregon. The Project allows logging and controlled burning on roughly 2,500 acres of the Pringle Falls Experimental Forest. The purpose of the Project is two-fold: to reduce the risk of wildfire and beetle infestation, and to conduct research on ponderosa pine forest management.

 

    The League of Wilderness Defenders–Blue Mountains Biodiversity Project (the League) filed suit against the U.S. Forest Service (the Service) and Service officials, alleging that the Agency's environmental impact statement (EIS) for the Project fails to comply with the National Environmental Policy Act (NEPA"). The district court granted summary judgment to the Service, relying in part on the fact that the Project involves research in an experimental forest. The Appeals court affirmed.

 

    The Service manages its experimental forests under the Forest and Rangeland Renewable Resources Research Act of 1978 (Research Act). The Research Act recognizes that the Federal government "has an important and substantial role in ensuring the continued health, productivity, and sustainability of the forests and rangeland of the United States." It gives the

Secretary of Agriculture broad authority to designate experimental forests and to conduct any research within them that he "deems necessary to obtain, analyze, develop, demonstrate, and disseminate scientific information about protecting, managing, and utilizing forest . . . resources."

 

    In affirming the district court ruling, the Appeals Court concluded, "The Service proposes a forest management research project in an experimental forest specifically set aside for such study. The EIS considers in detail a reasonable range of alternatives that would fulfill both of the Project's goals by reducing the risk of wildfire and beetle infestation, and by addressing six specified research objectives. The EIS is adequately supported by scientific data and takes a hard look at the significant impacts of the Project."

 

    Access the complete opinion (click here). [#Land, #CA9]

 

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California Communities Against Toxics v. U.S. EPA

Jul 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-71127. On Petition for Review of a Final Rulemaking of U.S. EPA. According to the Appeals Court, two environmental groups petition for review of a final rulemaking by the EPA. The groups and EPA agree this case should be remanded, so the only dispute is whether vacatur is appropriate.

 

    Under the jurisdiction of the South Coast Air Quality Management District, the District is responsible for developing a plan that ensures new emission increases are offset by reductions. When reductions exceed increases, the excess reductions take

the form of "credits," which are traded in an open market to entities seeking to meet their offset requirements. The District maintains a stock of these credits in an internal bank for distribution to entities like schools and hospitals.

 

    In 2009, California passed Assembly Bill 1318, which requires the District to transfer credits to a soon-to-be completed power plant named Sentinel. Since the Bill changed the state plan, the District sought the EPA's approval. Petitioners challenge the EPA's final rule approving the District's revision. They allege that the EPA committed procedural errors during the rulemaking process and that the substance of the revised state plan violates the Clean Air Act.

 

    The Appeals Court notes that during the rulemaking process, the EPA didn't disclose certain documents in the electronic docket or list them in the docket index. According to the petitioners, those failures violated the notice-and-comment requirements of the Administrative Procedure Act. However, the Appeals Court says, "EPA's failure to include all documents in the electronic docket was not an error. The E-Government Act requires online disclosure only 'to the extent practicable, as determined by the agency in consultation with the Director' of the Office of Management and Budget. E-Government Act of 2002, Pub L. No. 107-347, § 206(d)(2), 116 Stat. 2899, 2916 (2002) (emphasis added). We defer to the EPA on what is practicable to post on its online docket."

 

    The Appeals Court also said, "EPA did misstate that all documents in the docket were listed in the index. While this might violate an interested party's right to meaningfully comment. . . we need not decide that here. Assuming procedural error, it

was harmless as to the petitioners because they had the documents in their possession from earlier proceedings.

 

    On the subject of the validity of the rule, petitioners argue that the EPA violated the Clean Air Act in approving the District's revision to its plan. The EPA concedes that there are flaws in the reasoning adopted for its final rule. Despite its concession, EPA maintains its rule is not arbitrary and capricious and offers new reasoning to support its final rule. The Appeals Court rules, "We therefore find that the EPA's final rule is invalid. That the EPA's final rule is invalid is not the end of the analysis. In considering whether vacatur is warranted, we must balance these errors against the consequences of such a remedy."

 

    The Appeals Court then explains the "Consequences of vacatur" and says, "The delay and trouble vacatur would cause are severe. Sentinel is scheduled to come on line in November, but vacatur would pave the road to legal challenges to Sentinel's construction that could well delay a much needed power plant. Without Sentinel, the region might not have enough power

next summer, resulting in blackouts. Blackouts necessitate the use of diesel generators that pollute the air, the very danger

the Clean Air Act aims to prevent. . .

 

    "Stopping construction would also be economically disastrous. This is a billion-dollar venture employing 350 workers. In addition, vacatur would likely require the California legislature to pass a new bill to allow the District to transfer credits from its internal bank to Sentinel, which would create needless and duplicative legislative effort. Petitioners claim that failure to vacate the EPA's rule will allow Sentinel to continue construction, and that construction will pollute the air. But the California Energy Commission has already found that Sentinel's construction harms are insignificant with mitigation. And that mitigation doesn't implicate the credits at issue.

 

    "While we have only ordered remand without vacatur in limited circumstances, if saving a snail warrants judicial restraint, see Idaho Farm Bureau, 58 F.3d at 1405-06, so does saving the power supply. Accordingly, we remand without vacatur so that construction of Sentinel may proceed without delay. This does not authorize commencement of Sentinel's operation without a new and valid EPA rule in place."

 

    Access the complete opinion (click here). [#Energy, #CA9]

 

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The Estate Of Wayne Hage v. U.S.

Jul 26: In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2011-5001, -5013. Appealed from the United States Court of Federal Claims. The Appeals Court explains that E. Wayne Hage and Jean Hage brought an action against the United States, seeking compensation for a Fifth Amendment taking of private property, breach of contract, and range improvements pursuant to 43 U.S.C. § 1752(g). The Court of Federal Claims (Claims Court) awarded compensation for the taking of water rights plus interest from the date of the taking. The Claims Court also awarded compensation for range improvements, but did not award any corresponding pre-judgment interest. The Appeals Court ruled, "For the reasons set forth below, we affirm-in-part, reverse-in-part, vacate-in-part, and remand for proceedings consistent with this opinion."

   

    The Claims Court held there was a regulatory taking of the Hages' water rights when the Forest Service allowed vegetation to accumulate in streams and prevented the Hages from performing maintenance on the stream channels and ditch rights of way.   

 

    Among other determinations, the Appeals Court indicates, "The Hages have not met their burden because the evidence demonstrates only that they constructed or maintained the improvements on the federal lands, not that they owned title to those improvements. To the contrary, the evidence of record demonstrates that the improvements were the property of the United States government. Without evidence of ownership, the Hages cannot establish a cognizable property interest. To the extent that the Hages argue that they are entitled to a diminution in value for range improvements on their private property stemming from the cancelation of their permits, this argument is without merit. . ."

 

    In its conclusion the Appeals Court said, "The Hages' regulatory takings claim and claim for compensation pursuant to 43 U.S.C. § 1752(g) are not ripe, and we therefore vacate the Claims Court's award of damages. To the extent the Hages' claim for a physical taking relies on fences constructed in 1981-1982, this claim is untimely. To the extent the physical takings claim relies on fences constructed in 1988-1990, we re-verse because there is no evidence that water was taken that the Hages could have put to beneficial use. Finally, we affirm the Claims Court's holding that the Hages are not entitled to prejudgment interest for any range improvements award because the Hages failed to identify a cognizable property interest. We remand for further proceedings consistent with this opinion. "

 

    Access the complete opinion (click here). [#Water, #Land, #CAFed]

 

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Northern Pacific Center, Inc. v. BNSF Railway Company

Jul 24: In the U.S. Court of Appeals, Eighth Circuit, Case Nos. 11-3103 & 11-3139. The Appeals Court explains that the Northern Pacific Center incurred costs to reduce pollution on a property it owns in Brainerd, Minnesota which had formerly been owned by BNSF Railway and used as a railcar construction and maintenance facility. The Center sued BNSF under the Minnesota Environmental Response and Liability Act (MERLA), Minn. Stat. § 115B.01 et seq., to recover its costs. BNSF moved for summary judgment on the basis of MERLA's statute of limitations, which the district court denied. Both parties later moved for summary judgment on the merits, which the district court granted to BNSF, concluding that "the type of costs the Center had incurred were not recoverable under MERLA." The Center appealed the adverse grant of summary judgment and BNSF cross appealed the district court's denial of summary judgment on statute of limitations grounds. The Appeals Court ruled, "We affirm the grant of summary judgment to BNSF and dismiss BNSF's cross appeal as moot."

 

    The key determination in the case is whether the type of costs incurred was "remedial" or "removal." The Appeals Court concluded, ". . .the agency itself approved BNSF's excavation as the selected 'remedial' action and provided approval for the excavation done by the Center in each of its redevelopment projects. This suggests that the lead cleanup taken by the Center can be considered remedial. We conclude that the costs the Center seeks to recover were not removal costs and thus are not recoverable. Because we affirm the district court's grant of summary judgment to BNSF on the merits, we dismiss as moot BNSF's cross appeal of the district court's denial of summary judgment on statute of limitations grounds."

 

    Access the complete opinion (click here). [#Remed, #CA8]

 

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