National Mining Association v. MSHA

Mar 19: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1241. The National Mining Association (NMA) and the Methane Awareness Resources Group (MARG) (hereinafter, together "industry") petition for review of the Mine Safety and Health Administration's (MSHA's) decision to enforce a final exposure limit standard addressing health risks presented by exposure of miners in metal and nonmetal underground mines to diesel particulate matter (DPM) in diesel exhaust. The decision, announced May 20, 2008, represented a change in MSHA's earlier expressed intent to issue a proposed rule to convert the final DPM exposure standard from a total carbon (TC) to an elemental carbon (EC) measurement. See Diesel Particulate Matter Exposure, Notice of Enforcement of DPM Final Limit and Withdrawal of Intent to Issue Proposed Rule, 73 Fed. Reg. 29,058 (May 20, 2008) (2008 Notice).

 

    On the same date, MSHA issued Program Policy Letter P08-IV-01 (2008 Policy Letter) describing how it intended to enforce the DPM standard. Industry contends MSHA's decision was arbitrary and capricious because it inadequately explained and was unsupported by scientific data, contrary to a 2002 settlement and to MSHA's statements to this court, and without public notice or opportunity to comment. MARG individually challenges the failure of the National Institute of Occupational Safety and Health (NIOSH) to release a study on DPM. 

 

    The Appeals Court denied the industry petitions and dismissed MARG's individual challenges for lack of jurisdiction. In this complex case, the Appeals Court challenges NMA's position on a number of fronts and says: "NMA's suggestion that MSHA's 'misrepresentations,' Pet'r NMA Br. 22, albeit unintentional, cast a cloud over the legitimacy of the DPM standard of 160 TC does not advance its position" ; "Industry is on no firmer ground in contending that the 2008 Notice's withdrawal of MSHA's rulemaking intent violated the terms of the 2002 Settlement arising from challenges to the 2001 Rule" ; ". . .industry repudiated the 2002 Settlement when it petitioned for review of the 2001 Rule in Kennecott. . . MSHA was no longer bound by the 2002 Settlement when it issued the 2008 Notice" ; "NMA is mistaken when it suggests that on the basis of the Noll-Bugarski Study, MSHA effectively 'repromulgated the 160 TC standard'" ; and "the 2008 Notice was not subject to APA notice and comment procedures."

 

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Milwaukee Metropolitan v. American International Specialty

Mar 10: In the U.S. Court of Appeals, Seventh Circuit, Case No. 09-1645, 09-1715 & 09-1783. The Milwaukee Metropolitan Sewerage District is responsible for flood control and wastewater treatment in the greater Milwaukee area. As part of a flood control project, the District needed to acquire from Milwaukee County a piece of real estate along Lincoln Creek. The nominal asking price was $1.00. In anticipation of possible pollution clean-up costs, the project manager recommended obtaining insurance coverage, which the District directed its insurance agency to acquire. After a policy was issued, the District acquired title to the land. Soon thereafter, the District encountered significant pollution on the land. But when it submitted a claim to its environmental liability insurer, American International Specialty Lines Insurance Company (AISLIC), for costs incurred in removing the pollution, the insurer denied coverage.

    The District then sued AISLIC in Wisconsin State court seeking damages under several state law claims. Following removal to Federal court and a bench trial, the district court concluded that coverage for the pollution was appropriate. The court reformed the District's insurance policy with AISLIC to provide coverage for the pollution removal costs and entered judgment for $226,468.51

in favor of the District. The court also entered judgment in the same amount for AISLIC on its indemnity claim against Crump Insurance Services of Illinois, Inc. (Crump). AISLIC and Crump appeal from the district court's judgment, and the District cross-appeals the judgment and the denials of its post-trial motions.

 

    The Appeals Court reversed the judgment of the district court and remanded with instructions to enter judgment for AISLIC on the District's reformation claim and to dismiss AISLIC's indemnity claim against Crump as moot. The Appeals Court also dismissed the District's cross-appeal as moot. The Appeals Court explained further and said, ". . .the record indicates that the District knew that the policy would not include 'Lincoln Creek' as an insured property. From the very beginning of the District's efforts to obtain coverage for the Parcel, its agent Sedgwick was concerned that the information it was providing to Crump might not be sufficient for AISLIC to decide whether to provide coverage. . . Because its agent . . . knew that 'Lincoln Creek' would not be covered unless the District owned or operated the land, the District cannot reasonably claim to have proceeded under a mistake that the policy would cover the Parcel before satisfying that requirement. . ."

 

    Access the complete opinion (click here). [Please Note: The 7th circuit has a temporary web hyperlink nomenclature system. If the link does not work click on this link and enter the case number above (click here).]

Native Ecosystems Council v. Tidwell (Forest Service)

Mar 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35890. Plaintiffs-Appellants Native Ecosystems Council, et al (collectively NEC) appeal the district court's summary judgment in favor of Defendants-Appellees Tom Tidwell, the United States Forest Service, et al (collectively Forest Service); Defendants-Intervenors-Appellees Madison County and Beaverhead County; and Intervenors-Appellees Sitz Angus Ranch, et al (collectively Intervenors-Appellees). NEC argues that the district court erred in finding that Forest Service approval of a project to update grazing allotments in the Beaverhead-Deerlodge National Forest complies with the Forest Service's obligation to ensure species diversity as required under the National Forest Management Act (NFMA). It also contends that the district court erred in concluding that the Environmental Assessment undertaken by the Forest Service project satisfied the National Environmental Policy Act (NEPA).

 

    The Appeals Court ruled, "We agree with NEC on both counts. Because the Forest Service's environmental assessment was

based on a nonexistent management indicator species (MIS), its habitat proxy analysis was not reliable. The Forest Service

also failed to take the requisite 'hard look' at the project as required by NEPA. We therefore reverse the district court's summary judgment in favor of the Forest Service, and remand for further proceedings consistent with this opinion."

 

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MacClarence v. EPA

Mar 4: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-72756. Bill MacClarence petitioned the court for a review of an order the U.S. EPA Administrator denying his request that the Agency object to the issuance of a Clean

Air Act Title V permit for pollutant-emitting activities at Gathering Center #1 (GC 1), an oil and gas processing facility in Prudhoe Bay. The Alaska Department of Environmental Conservation's (ADEC) granted the permit to British Petroleum Exploration (Alaska), Inc.'s (BP), which owns GC 1. The Appeals Court said that because the Administrator's denial of MacClarence's request "was not arbitrary or capricious, we deny the petition."

 

    By way of background, the Prudhoe Bay Unit (PBU) is located on the North Slope of Alaska and extends over 300 square miles. It consists of a series of oil and gas facilities, including thirty-eight drill sites or "well pads" and six production centers, as well as support facilities for PBU workers. GC 1 is one of the six production facilities at the PBU. BP owns approximately 26.35% to 50.7% of the facilities at the PBU, including GC 1, and operates all of the PBU facilities pursuant to an agreement with the other owners. The PBU facilities are engaged in a continuum of oil and gas refining activities, from drilling to sale. Well pads in the PBU pump "three-phase" crude oil from the tundra beneath the PBU facilities. This oil is transferred to the production centers, including GC 1, where it is separated into processed crude oil, water, and hydrocarbon gases. The processed crude oil is pumped from the production centers to the Trans-Alaska Pipeline for sale, while other facilities at the PBU dispose of or re-inject the by-products of the production process.

 

    MacClarence argues that the permit did not comply with the CAA because ADEC, in the final draft permit for GC 1, had not properly "aggregated" stationary sources of air pollution in the PBU. The Appeals Court indicates, "As the record for this case reveals, the aggregation of pollutant-emitting activities for the purposes of designating a "major source" or "major stationary source" is not a clear-cut task. Under the governing regulations, however, determinations regarding 'major sources' for purposes of issuing Title V permits and 'major stationary sources' for purposes of meeting PSD requirements involve the same analysis; the aggregated sources must belong to the same industrial grouping, be located on continuous or adjacent properties, and be under common control."

 

    The Appeals Court says in its ruling that "we do not decide whether MacClarence's substantive argument -- that the CAA requires all pollutant-emitting sources in the PBU to be aggregated for purposes of Title V and other substantive CAA provisions -- is correct. Rather, we consider only whether the EPA Administrator erred in determining that MacClarence failed to demonstrate, pursuant to 42 U.S.C. § 7661d(b)(2), that the final Title V permit for GC 1 did not comply with the CAA.

 

    The Appeals Court indicates that, in denying MacClarence's request, the Administrator reasoned that MacClarence (1) "failed to provide adequate information to support his claim that the entire PBU should be aggregated," and (2) "failed to demonstrate that the failure to aggregate all facilities within the PBU has led to a deficiency in the content of the permit." Therefore, the Appeals Court rules, "Because we conclude that we may properly uphold the Administrator's denial of MacClarence's petition on the basis of the first ground, we need not reach the second. . . the Administrator's conclusion that MacClarence "failed to provide adequate information to support his claim that the entire PBU should be aggregated" was not arbitrary or capricious. . .

 

    "Therefore, we conclude that the Administrator's determination that MacClarence did not demonstrate that the entire PBU should be aggregated did not constitute an impermissible interpretation of MacClarence's burden under 42 U.S.C. § 7661d(b)(2), to 'demonstrate' that ADEC's final Title V permit for BP's GC 1 did not comply with the CAA, nor was it arbitrary or capricious."

 

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David L. Lewis v. U.S. Department of Labor

Feb 24: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-12114. In this unpublished opinion, Dr. David Lewis petitioned the court for review of the final order of the U.S. Department of Labor Administrative Review Board (ARB) denying his whistleblower complaints against his employer, the U.S. EPA, brought pursuant to the employee protection provisions of the Clean Air Act (CAA); the Safe Drinking Water Act (SDWA); the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); the Toxic Substances Control Act (TSCA); the Federal Water Pollution Prevention and Control Act (FWPPCA); and the Solid Waste Disposal Act (SWDA).

 

    The case involves a dispute between two EPA employees regarding EPA's Rule 503 [See 40 C.F.R. § 503.1 (2009)] relating to the land application of biosolids. Lewis became concerned that heavy metals in sludge may be adverse to the public health and that the effects of pathogens in the sludge were not adequately investigated during the Rule 503 peer review process. The Appeals Court affirmed the ARB decision denying the complaints.

 

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Niagara Mohawk Power Assn. v. Chevron U.S.A., Inc.

Feb 24: In the U.S. Court of Appeals, Second Circuit, Case No. 08-3843. As explained by the Appeals Court, Niagara Mohawk Power Corporation (NiMo) commenced this action to recover costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), and the Superfund Amendments and Reauthorization Act of 1986 (SARA) from the defendants for cleanup of properties previously owned by NiMo and once either owned, leased, or used by the defendants. In the appeal, NiMo challenges orders of the United States District Court for the Northern District of New York which denied NiMo's motion for summary judgment, granting summary judgment in favor of the defendants, and denying NiMo's motion for reconsideration.

 

    We are called upon to determine whether NiMo, as a potentially responsible party under CERCLA, can seek response and cleanup costs under either § 107(a)(4)(B) or § 113(f)(3)(B), after having settled its CERCLA liability with the New York State Department of Environmental Conservation (DEC) but not with the Environmental Protection Agency (EPA), where the EPA has not expressly authorized the DEC to settle CERCLA liability relating to the property at issue.

 

    The Appeals Court said, "We hold that NiMo may seek contribution costs under § 113(f)(3)(B) because NiMo has settled with the DEC, but consequently NiMo may not seek reimbursement for response costs under § 107(a). We hold that the district court erred in granting summary judgment for the defendants because there are genuine issues of material fact with regards to their respective liabilities.

 

    Additionally, the Appeals Court ruled, "We hold that the district court erred by holding that NiMo did not comply with the National Contingency Plan. We hold that the district court erred in part by dismissing NiMo's New York Navigation Law claims. Finally, we hold that the district court erred in dismissing Chevron's third party action against the County of Rensselaer and others. We affirm, however, the district court's dismissal of NiMo's state contribution, indemnity, and unjust enrichment claims because they are preempted by CERCLA."

 

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Gintis v. Bouchard Transportation Co.

Feb 23: In the U.S. Court Appeals, First Circuit, Case No. 09-1717. In this case, a fuel barge owned and operated by defendants discharged a substantial amount of oil into the waters of Buzzards Bay in southeastern Massachusetts. Plaintiffs are owners of residential waterfront property on the bay who brought suit as individuals and as members of a proposed class. The district court denied class certification, but the Appeals Court said, ". . .because the court did not subject the parties' contentions to the plenary analysis that precedent requires, we vacate the judgment and remand."

 

    The  Appeals Court provided more detail and said, "It is enough to say here that Bouchard's arguments in this appeal appear to show that substantial and serious common issues would arise over and over in potential individual cases. Indeed, the only apparent mitigation of this prospect of duplicative litigation lies in the possibility that not many individual actions would be brought if separate actions were the only course, and this implicates the second condition for certification under paragraph (3), that class litigation be

superior to a string of individual plaintiffs going alone. While superiority is a separate base to be touched, it is addressed by many of the considerations that inform a trial court's judgment call about how clearly predominant the common issues must be. . .

 

    Here there is evidence that may well go to the very reason for Rule 23(b)(3), mentioned before (i.e., to make room for claims that plaintiffs could never afford to press one by one), since the record contains one estimate that potential individual recoveries are probably in the $12 to $39 thousand range. Given the elements of injury, causation and compensation on which Bouchard intends to join issue, there is a real question whether the putative class members could sensibly litigate on their own for these amounts of damages, especially with the prospect of expert testimony required. Like predominance, the issue of superiority is thus a serious one in these circumstances and should be addressed thoroughly."

 

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