United States v. Mancuso

Jun 30: In the U.S. Court of Appeals, Second Circuit, Case No. 10-2420. In this unpublished order appealed from judgments of the United States District Court for the Northern District of New York. The case involves sentencing of two brother who among other convictions, violated the Clean Air Act (CAA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in the conduct of asbestos removal.

 

    The Appeals Court ruled on many issues that were appealed and said, "Upon due consideration, it is hereby ordered, adjudged, and decreed that the judgments of conviction entered as to defendant Steven Mancuso on June 14, 2010; and as to Paul Mancuso on June 14, 2010, and January 10, 2011, are affirmed in part and vacated in part, and the cases are remanded for resentencing consistent with this order. Steven and Paul Mancuso stand convicted by a jury on a common count of conspiracy to defraud the United States, see 18 U.S.C. § 371; to commit mail fraud, see id. § 1341; to violate the Clean Air Act (CAA), see 42 U.S.C. §§ 7412, 7413(c); and to violate the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), see id. § 9603. Paul Mancuso was further convicted of six substantive CAA and CERCLA counts. See 42 U.S.C. §§ 7413(c), 9603(a)-(b). Steven Mancuso, who was sentenced to 44 months in prison."

 

    Both defendants fault the district court for applying a four-level enhancement for permitless disposal of a hazardous substance based on a Clean Water Act permit violation. The Appeals Court said regarding the environmental issues, "Although neither defendant objected to the enhancement below, we are here obliged to identify plain error. Our precedent prohibits application of § 2Q1.2(b)(4) when the environmental offense at issue 'did not 'involve' a permit violation,' even if the conduct contravened a different

statute's permit requirements. United States v. Rubenstein, 403 F.3d at 100-01 (vacating enhancement based on state permit violation when defendant convicted of CAA offense because CAA does not require permit). Thus, the district court here plainly erred by applying the enhancement based solely on a Clean Water Act permit violation because the relevant CAA and CERCLA offenses did not involve permits. . ."

 

    Access the complete order with more details (click here). [*Air, *Remed, *Toxics, CA2]

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Reese v. BP Exploration (Alaska) Inc.

Jun 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-35128. Appeal from the United States District Court for the Western District of Washington. BP Exploration (Alaska) Inc. (BPXA) appeals the district court's order granting in part and denying in part BPXA's motion to dismiss a securities fraud action filed against it by Claude A. Reese (Reese) on behalf of a class of purchasers of BP p.l.c. shares. On an interlocutory appeal, which was accepted by the Ninth Circuit, BPXA asserts that Reese's surviving claims do not state a claim, warranting dismissal under Federal Rule of Civil Procedure 12(b)(6), because Reese has pled neither an actionable misrepresentation made by or attributable to BPXA nor sufficient evidence of scienter [intent or knowledge of wrongdoing]. Reese, in turn, urges the Appeals Court to affirm the district court on the issues certified for interlocutory appeal and reverse part of the district court's order granting partial dismissal of his claims, or, alternatively, that the Appeals Court vacate the order granting interlocutory appeal.

 

    The Appeals Court ruled, "We hold that BPXA's breach of a contractual promise of specific future conduct, even though the contract is filed in conjunction with U.S. Securities and Exchange Commission (SEC) reporting requirements, was not a sufficient foundation for a securities fraud action. We decline Reese's invitation to review other issues that were not certified for interlocutory appeal. In light of our conclusion that breached contractual obligations do not constitute misrepresentations by BPXA that are actionable under the securities laws, we need not reach the issue of scienter."

 

    The Appeals Court said further, "BPXA's contractual promise to act as a prudent operator did not expressly or implicitly assert that BPXA was in full compliance with its obligations thereunder, and we do not view the public filing of the ORC Agreement as the sort of traditional fraudulent misrepresentation of fact that could induce investors mistakenly to buy securities. We hold that, in this case, the public filing of a contract containing a promise of future compliance did not, upon the contract's breach at a time after execution, provide an actionable misrepresentation for the purposes of a private damages action for securities fraud."

 

    Access the complete opinion (click here). [*Haz, *Water, *CA9]

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NRDC v. South Coast Air Quality Management District

Jun 29: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-57064. Appeal from the United States District Court for the Central District of California. The Natural Resources Defense Council and other groups (collectively, the NRDC) appeal the district court dismissal of their claims against the South Coast Air Quality Management District (SCAQMD). The case focuses on the SCAQMD new source review permit program included in its Regulation XIII, most of which the U.S. EPA has approved and incorporated into the State Implementation Plan (SIP).

 

    The Appeals Court affirmed the decision of the district court and said, "The district court did not err in determining it lacked jurisdiction over the alleged violations of Clean Air Act § 173(c). Nor did it err in concluding that the NRDC otherwise failed to state a claim upon which relief can be granted: Regulation XIII does not contain validity requirements for SCAQMD's internal offsets, and Environmental Protection Agency (EPA) rules do not require SCAQMD to use a tracking system."

 

    The Appeals Court said further, "The EPA rule approving the SIP does contain a reference to a tracking system in its preamble. . . Yet we are not to consider such references unless the regulation itself is ambiguous. . . There is no ambiguity here. Nothing in the EPA-approved SIP even suggests a tracking system must be applied. The district court thus properly dismissed the NRDC's third and fourth claims for failure to allege a violation of the EPA rule or the SIP."

 

    Access the complete opinion (click here). [*Air, *CA9]

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Re: MDL-1824 Tri-State Water Rights Litigation

Jun 28: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 09-14657. Appealed from the United States District Court for the Middle District of Florida. The Georgia Parties, Gwinnett County, Georgia, and the United States Army Corps of Engineers (the Corps) appeal from the Middle District of Florida's grant of summary judgment in this consolidated suit. The appeal arises from more than 20 years of litigation involving the above parties as well as the States of Alabama and Florida, Alabama Power Company, the City of Apalachicola, Florida, and Southeastern Federal Power Customers, Inc. (SeFPC), a consortium of companies that purchase power from the federal government. All of the underlying cases relate to the Corps' authority to operate the Buford Dam and Lake Lanier, the reservoir it created, for local water supply.

 

    In its order, the district court found that the Corps' current operation of the Buford Project -- Buford Dam and Lake Lanier collectively -- had allocated more than 21% of Lake Lanier's storage space to water supply. The court determined that such an allocation exceeded the Corps' statutory authority and ordered the Corps to drastically reduce the quantity of water that it made available for water supply. The court's summary judgment order also affirmed the Corps' rejection of Georgia's 2000 request for additional water supply allocations to meet the needs of the localities through 2030. The court stayed its order for three years to give the parties time to reach a settlement or to approach Congress for additional water supply authority.

 

    The Appeals Court outlines the claims of the various parties and ruled in a multipart decision, ". . .we hold: First, the district court erred in finding that it had jurisdiction to hear Alabama, SeFPC, and Apalachicola because the Corps has not taken final agency action. The three cases therefore must be remanded to the Corps in order to take a final agency action. Second, the district court and the Corps erred in concluding that water supply was not an authorized purpose of the Buford Project under the RHA [the 1946 Rivers and Harbors Act]. The Corps' denial of Georgia's 2000 water-supply request is therefore not entitled to Chevron deference, and the request must be remanded to the Corps for reconsideration. Third, the district court erred in finding that the 1956 Act, which authorized the Corps to contract with Gwinnett County to withdraw 10 million gallons of water per day, expired after 50 years. Gwinnett County's contractual and just-compensation claims are without merit. Fourth, we also provide certain instructions to the Corps on remand. And finally, the Corps shall have one year to make a final determination of its authority to operate the Buford Project under the RHA and WSA [the 1958 Water Supply Act]."

 

    Access the complete 95-page decision (click here). [*Water, *Drink, *CA11]

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Redevelopment Agency of the City of Stockton v. BNSF Railway Co.

Jun 28: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 09-16585, 09-16739, & 09-17640. Appealed from the United States District Court for the Eastern District of California. The Appeals Court explains that appellants BNSF Railway Company and Union Pacific Railroad Company (the Railroads) formerly maintained railroad tracks on a parcel of land in Stockton, California, that was contaminated by petroleum. The petroleum was spilled at a nearby industrial site and migrated onto the property via an underground french drain the Railroads had installed in order to remove water from the roadbed. The Appeals Court considered whether the Railroads are liable for the contamination of the property under the law of nuisance or under California's Polanco Redevelopment Act (Polanco Act), Cal. Health & Safety Code § 33459 et. seq. The Appeals Court ruled that the Railroads are not liable.

 

    The Appeals Court said further, "There is no evidence that the Railroads actively or knowingly caused or permitted the contamination as required for nuisance liability and liability under the Polanco Act's Water Code provision. Nor were the Railroads 'owners' of the property under the Polanco Act's CERCLA provision when the contamination occurred. Because the record establishes no genuine issue of material fact as to the Railroads' liability, the Railroads are entitled to summary judgment. Therefore, we need not reach any of the damages issues on appeal or crossappeal. . . We reverse the grant of summary judgment for the Agency on the nuisance and Polanco Act-Water Code provision issues and remand for entry of summary judgment for the Appellants. We affirm the grant of summary judgment to the Appellants on the Polanco Act-CERCLA provision issue. Costs are awarded to the Appellants."

 

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Roth v. Norfalco LLC

Jun 28: In the U.S. Court of Appeals, Third Circuit, Case No. 10-2524. Appealed from the United States District Court for the Middle District of Pennsylvania. In a brief summary the Appeals Court explains, David Roth was attempting to unload a railway tank car filled with sulfuric acid when its chemical contents exploded, spraying Roth across his face and chest and inflicting severe burns. Roth brought suit, seeking damages for his personal injuries under the common law, but the District Court held that his lawsuit was preempted by the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. §§ 5101–5128. The Appeals Court agreed and affirmed the district court decision. 

    In further explanation, the Appeals Court says, "the statute and its applicability could not be more clear. Roth seeks to impose a tank car design requirement. Section 5125(b)(1) expressly preempts any common law requirement 'about' the design of a 'package, container, or packaging component . . . qualified for use in transporting hazardous materials in commerce.' Roth concedes that Norfalco's tank cars are containers qualified for use in transporting hazardous materials in commerce. Thus, the HMTA plainly encompasses Roth's common law claims. It is irrelevant what Roth was doing at the precise moment of his injury. This only makes sense, for it cannot be the case that the comprehensive design requirements erected by the HMTA cease to govern simply because the tank car was emptied of its contents days after its delivery. The tank car is, at all times, a container qualified for use in transporting hazardous materials. The proposed design requirement is expressly preempted."

 

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Medical Waste Institute v. U.S. EPA

Jun 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1297. Petitioners Medical Waste Institute and Energy Recovery Council, trade associations representing the medical waste and waste-to-energy industries, respectively, petition for review of a regulation promulgated by U.S. EPA setting performance standards for new and existing hospital/medical/infectious waste incinerators (HMIWI). Petitioners argue that the data set EPA used to establish these standards was flawed, that the Agency's pollutant-by-pollutant approach to setting target emissions levels was impermissible, and that the Agency acted arbitrarily when it removed a provision exempting HMIWI from complying with the standards during periods of startup, shutdown, and malfunction. The EPA counters that the Appeals Court lacks jurisdiction to review the two latter claims, and that the use of the data set was justifiable. The Appeals Court said, "We agree with the EPA and deny the petition for review."

 

    The challenged regulation, titled "Standards of Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators," was issued pursuant to Section 129 of the Clean Air Act (CAA), 42 U.S.C. § 7429. The statute directs the EPA to set required levels of emissions reduction for nine listed air pollutants, as well as for opacity where appropriate. § 7429(a)(4). The statute sets forth the factors EPA is to consider in establishing the standards.

 

    The Appeals Court concluded, "We hold that the EPA's decision to use emissions data from the HMIWI units remaining in operation after the implementation of the 1997 standards, once it determined that the data set upon which it had relied in 1997 was flawed, was reasonable. We do not have jurisdiction to review the challenges to the EPA's long-standing practice of setting emissions floors based on emissions levels achieved by the best performing unit or units for each individual pollutant, and to the agency's removal of an exemption from compliance with emissions limitations during periods of startup, shutdown, and malfunction. The petition is dismissed in part and denied in part."

 

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