Monday, April 15, 2013

WIMS Spring Break

WIMS will be taking our Spring publication break the next two weeks. 
 
We will resume regular publication on Monday, April 29, 2013.
 
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Posted by JPMcJ at 4:55 PM 0 comments

Wednesday, April 10, 2013

Paskar v. U.S. DOT

Apr 9: In the U.S. Court of Appeals, Second Circuit, Case No. 10-4612. In summary, the Appeals Court indicates that petitioners seek review of a letter written by the Federal Aviation Administration (FAA) to the City of New York (City) on September 2, 2010 (the Letter). Petitioners contend the Letter is a "final order" subject to review by the Court. The Letter states that the FAA agrees with an expert panel's finding that the City's plan to reopen a coastal garbage transfer facility in College Point, Queens, would be compatible with safe air operations as long as several recommendations are followed. The facility, the North Shore Marine Transfer Station (Station), is 2,206 feet across Flushing Bay from the landing threshold of Runway 31 at LaGuardia Airport and 585 feet perpendicular to its extended centerline. The Appeals Court rules, "We hold that, because the Letter is not a 'final order' for purposes of 49 U.S.C. § 46110(a), we are without jurisdiction to review it. The petition for review is therefore dismissed."
 
    Petitioners in this case, a general aviation pilot and a not-for-profit corporation interested in the safety of aviation, filed this petition for review on October 29, 2010, seeking review by the Court alleged that they had "a substantial interest in the Letter's subject matter, that the Letter was a final order reviewable by this Court, and that it was arbitrary and capricious." Respondents moved to dismiss the petition on the ground that the Letter was not an "order," and that the court of appeals therefore lacks subject matter jurisdiction to hear the petition. A motions panel of this Court denied the motion to dismiss, holding that the Letter was an order subject to review. The Appeals Court indicates that, "A merits panel may revisit a decision made by a motions panel."
 
    The Appeals Court says, "No term in the Letter 'imposes an obligation' on the City, 'denies a right' of the City, or 'fixes some legal relationship' with the City" and concludes, "The FAA letter and inter-agency panel report did not deny a right, impose an obligation, or have legal consequence. It was not a "final order," and we lack jurisdiction to review it. The petition for review is dismissed."
 
    Access the complete opinion (click here). [#Solid, #Wildlife, #Transport, #CA2]
 
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Posted by JPMcJ at 4:11 PM 0 comments

Tuesday, April 9, 2013

Firebaugh Canal Water District v. U.S. DOI

Apr 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-17715. Appealed from the United States District Court for the Eastern District of California. The Appeals Court affirmed the district court's summary judgment in favor of the United States Department of the Interior (DOI) in an action challenging the Agency's management of California's Central Valley Project (CVP) -- the massive undertaking to transfer water from the northern part of California's Central Valley to the relatively arid southern part of the valley.
 
    The Appeals Court indicates, "Interior's management of the CVP has been the subject of much litigation. Here, we address the claim of the Firebaugh Canal Water District and the Central California Irrigation District (collectively, Firebaugh) that a lack of adequate drainage in part of the CVP causes poor quality water to flow into its service area. Firebaugh argues that Interior should be ordered to provide the necessary drainage or, alternatively, to pay money damages. . . we hold that Interior's broad discretion in matters of drainage precludes both claims."
 
    In its conclusion, the Appeals Court said, "We do not minimize the very real costs that continued operation of the San Luis Unit imposes on downslope lands, and we repeat Firebaugh I's holding that Interior is obliged to find a solution. We also reaffirm, however, that the contours of the solution lie within Interior's discretion. That discretion places Interior's actions beyond the scope of both the APA and the FTCA [Federal Tort Claims Act].
 
    "There is, to be sure, some point at which Interior's actions could become so sluggish that we could rightly say that the agency has entirely abandoned its legal duty to provide drainage within the San Luis Unit. The record before us does not now support that conclusion. Accordingly, the judgment of the district court is affirmed."
 
    Access the complete opinion (click here). [#Water, #CA9]
 
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Posted by JPMcJ at 4:13 PM 0 comments

Friday, April 5, 2013

Ashley II of Charleston LLC v. PCS Nitrogen Incorporated

Apr 4: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 11-1662, 11-2087, 11-2099, 11-2104, & 11-2297. Appealed from the United States District Court for the District of South Carolina, at Charleston.
 
    The Appeals Court summarizes saying, these appeals arise from disputes as to liability for cleanup of hazardous substances at a former fertilizer manufacturing site in Charleston, SC. After incurring response costs, Ashley II of Charleston, Inc., the current owner of a portion of the site, brought a cost recovery action against PCS Nitrogen, Inc., under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). PCS counterclaimed and also brought third-party contribution actions against parties with past and current connections to the site.
 
    The district court bifurcated the case for trial. At the conclusion of the first bench trial, it found PCS a potentially responsible party jointly and severally liable for response costs at the site. At the conclusion of the second bench trial, the court found some
of the other parties, including Ashley, potentially responsible parties, each liable for an allocated portion of the site's response costs. PCS, Ashley, and many of the other parties now appeal. The Appeals Court affirmed the judgment of the district court in all respects.
 
    Between October 2009 and January 2010, the district court held a sixteen-day bench trial on the allocation phase. The court ultimately allocated liability for past and future response costs at the site to PCS, Ashley, Ross, Holcombe and Fair, RHCE, and Allwaste in various amounts. On appeal, no party disputes that Ashley incurred response costs for the cleanup of hazardous substances at the site that were consistent with the National Contingency Plan. Rather, the parties solely dispute whether and to what amount each is liable for response costs at the site.
 
    In one part of the decision, the Appeals Court held, ". . .we ultimately need not decide today whether a PRP under § 9607(a)(2) can avoid joint and several liability by apportioning only its own harm. For, even assuming that a PRP could do so, the district court did not err in holding that PCS failed to establish a reasonable basis for apportioning its own harm in this case. Both primary disposals (from fertilizer manufacturing) and secondary disposals (from earth-moving and construction) occurred during Old CNC's ownership and operation of the site. Therefore, even to establish its own share of the harm, PCS (Old CNC's successor) needed to provide an apportionment methodology that addressed both types of disposals. Because it did not do so, PCS failed to provide a 'reasonable basis for apportionment' of its own harm (let alone all of the harm), and we affirm the district court's denial of apportionment. See Chem-Nuclear Sys., 292 F.3d at 260 (finding defendant failed to prove its own share of the harm); Rohm & Haas Co., 2 F.3d at 1280 (same)."
 
    In the second part of the decision, the Appeals Court said, ". . .we finally consider the several appeals of the court's ultimate allocation of liabilities under 42 U.S.C. § 9613(f). The district court equitably allocated liability for the response costs to the PRPs as follows: forty-five percent to Ross; thirty percent to PCS; sixteen percent to Holcombe and Fair; five percent to Ashley; three percent to Allwaste; one percent to RHCE; and zero percent to the City of Charleston. As the party bringing the § 9613(f) action, PCS bears the burden of proving each party's equitable share of response costs. . .
 
    "PCS, RHCE, and Holcombe and Fair each contend that the court clearly erred by allocating too much liability to each of them, and not enough to the other parties. Considering, as we must, the record as a whole, we cannot conclude the district court clearly erred. The court's ultimate allocation of liability reasonably weighs relevant factors, including the degree of involvement each party had in disposals (both primary and secondary) on the site, the degree of care each party exhibited with respect to hazardous substances, the degree to which each party cooperated with government officials with respect to hazardous substances, and the benefit each party reaped from disposals of hazardous substances on the site. Although the record also might have supported a different allocation, the ultimate 'allocation [is] among the reasonable conclusions supported by the evidence.' Boeing, 207 F.3d at 1188. We therefore affirm the district court's allocation of liabilities under § 9613(f)."
 
    Access the complete opinion (click here). [#Remed, #CA4]
 
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Posted by JPMcJ at 4:16 PM 0 comments

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
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