Articles Posted in U.S. 3rd Circuit Court of Appeals

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In the 1960s Penelec and NYSEG built the Homer City coal-burning power plant in Indiana County, Pennsylvania. The Clean Air Act of 1970 subsequently charged the EPA with setting national maximum permissible levels of common pollutants, 42 U.S.C. § 7409(a)–(b). In 1990 the CAA was amended by Title V, the Operating Permit Program, which requires all major sources of air pollution to obtain operating permits. The Plant’s “grandfathered” status ended in the 1990s, when Penelec and NYSEG made changes to boilers that increased emissions of sulfur dioxide and particulate matter. Penelec and NYSEG believed the changes were “routine maintenance” and did not apply for a permit. In 1995, Penelec and NYSEG applied for a Title V operating permit; they subsequently sold the Plant to EME, which then sold to OLs, which simultaneously leased it back to EME. By 2004, the Plant had become “one of the largest air pollution sources in the nation,” and was a target of the EPA’s new enforcement initiative. In 2008 the EPA filed suit, alleging that the former owners had modified the Plant without a permit and without installing required emissions controls. The Third Circuit affirmed dismissal. The relief sought would require distortion of plain statutory text to shore up what the EPA views as an incomplete remedial scheme. View "United States v. EME Homer City Generation, L.P." on Justia Law

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In 1988 Trinity acquired South Plant, 53 acres in Greenville, and manufactured railcars there until 2000. Some buildings are now vacant and some are used for storage. Pennsylvania initiated enforcement proceedings concerning release of hazardous substances in 2006, which resulted in Trinity pleading no contest to misdemeanor counts of unlawful conduct. Trinity and the Pennsylvania Department of Environmental Protection entered into a consent order; pursuant to Pennsylvania’s Hazardous Sites Cleanup Act and Land Recycling and Environmental Remediation Standards Act, Trinity agreed to fund and conduct Response Actions under a schedule approved by DEP. Trinity claims to have undertaken preliminary investigation but has yet to perform remediation. Trinity sought contribution from CB&I, the prior owner, which had constructed a facility for manufacturing steel products on the site in 1910 and had operated for 75 years. Trinity alleges that CB&I contaminated sections of South Plant through abrasive blasting, submerging steel plates in acid, and painting. The district court granted CB&I summary judgment on claims under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675, and the Resource Conservation and Recovery Act, 42 U.S.C. 6901. The Third Circuit affirmed with respect to the RCRA claim, but agreed with Trinity and the government that CERCLA does not require that a party have settled its liability under CERCLA in particular to be eligible for contribution. View "Trinity Indus., Inc. v. Chicago Bridge & Iron Co." on Justia Law

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Plaintiffs filed suit against GenOn, on behalf of a putative class of at least 1,500 individuals who own or inhabit residential property within one mile of GenOn’s 570-megawatt coal-fired electrical generation facility in Springdale, Pennsylvania. The complaint asserted state tort law claims, based on ash and contaminants settling on plaintiffs’ property. The district court dismissed, finding that because the plant was subject to comprehensive regulation under the Clean Air Act, 42 U.S.C. 7401, it owed no extra duty to the members of the class under state tort law. The Third Circuit reversed, holding that the plain language of the Clean Air Act and controlling Supreme Court precedent indicate that state common law actions are not preempted. View "Bell v. Cheswick Generating Station, Genon Power Midwest, L.P." on Justia Law

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Ownership of the Somerville property has changed many times. It has been used for manufacturing, for machining military parts during World War II, and as warehouses for commercial and industrial tenants, including JANR. The soil and the groundwater became contaminated, likely beginning in the 1940s, when a degreasing agent was dumped on the ground. Contamination worsened after 1983 when improper storage of hazardous waste in the JANR warehouse resulted in spills and leaks. Remedial actions may have contributed to the contamination. The current owner acquired the site in the 1980s. After several earlier suits concerning the contamination, the owner sued a former owner and the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601, the New Jersey Spill Compensation and Control Act, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6972, and the New Jersey Sanitary Landfill Facility Closure Act and Contingency Fund. The district court entered summary judgment rejecting the RCRA claim, held a trial, and determined that the owner, the prior owners, and the United States were each liable for costs of remediation under CERCLA and the Spill Act and allocated percentages. The Third Circuit vacated with respect to award of prejudgment interest and the RCRA claim against the former owners, but otherwise affirmed. View "Litgo NJ, Inc. v. Comm'r NJ Dep't Envtl. Prot." on Justia Law

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Portland Generating Station is a 427-megawatt, coal-fired, electricity generating plant in Northampton County, Pennsylvania, directly across the Delaware River within 500 feet of Warren County, New Jersey. The EPA found that Portland emits sulfur dioxide in amounts that significantly interfere with control of air pollution across state borders. In response to a petition under the Clean Air Act (42 U.S.C. 7408, 7409)), the EPA imposed direct limits on Portland‘s emissions and restrictions to reduce its contribution to air pollution within three years. The Third Circuit upheld the EPA actions. It was reasonable for the EPA to interpret Section 126(b) as an independent mechanism for enforcing interstate pollution control, giving it authority to promulgate the Portland Rule. The contents of the Portland Rule are not arbitrary, capricious, or abusive of the EPA‘s discretion. View "GenOn REMA LLC v. U.S. Envtl. Prot. Agency" on Justia Law

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From 1895 to 1954 the Jersey City chrome manufacturing plant deposited 1.5 million tons of industrial waste into wetlands along the Hackensack River. In 1954, Honeywell’s predecessor purchased the plant and ended the dumping. The contaminated area was not cleaned up. In 1995, ICO, represented by the Terris law firm, filed a citizen suit under the Resource Conservation and Recovery Act, 42 U.S.C. 6901. The district court entered judgment for ICO in 2003, awarded more than $4.5 million in fees and expenses, and required Honeywell to pay future fees and costs for monitoring cleanup. The Third Circuit vacated the fee award. In 2005, Terris sued Honeywell based on the same contamination but relating to different areas, on behalf of Riverkeeper. The parties entered into consent decrees; Honeywell agreed to pay $5 million for fees and costs already incurred and to pay “reasonable” fees and expenses for monitoring. In 2009, the parties failed to agree on monitoring fees. The district court substantially upheld the fee requests, allowing Terris to be paid Washington, D.C. rates, rejecting challenges to the reasonableness of the hours expended, and holding that Rule 68 offers of judgment cannot be made in RCRA citizen suits. The Third Circuit vacated with respect to Rule 68 offers, upheld with respect to the hourly rates, and remanded with respect to the number of hours claimed. View "Interfaith Cmty. Org, v. Honeywell Int'l, Inc, " on Justia Law

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SCRG purchased a St. Croix alumina refinery in 2002. The plaintiffs (more than 500 individuals) alleged that for 30 years, the facility refined bauxite, creating mounds of the by-product, red mud. Hazardous materials, including chlorine, fluoride, TDS, aluminum, arsenic, coal dust ,and other particulates were buried in the red mud, outdoors, in open piles, as high as 120 feet and covering up to 190 acres. Friable asbestos was also present. The substances were dispersed by wind and erosion. According to the plaintiffs, SCRG purchased the site knowing about the contamination, did nothing to abate it, and allowed it to continue. The district court remanded to the Superior Court of the Virgin Islands, finding that the action did not qualify as a “mass action” under the Class Action Fairness Act, 28 U.S.C. 1453(c)(1), because all the claims arise from an event at a single facility, with resulting injuries confined to the Virgin Islands. The Third Circuit affirmed. An event, under CAFA, encompasses a continuing tort, resulting in a regular or continuous release of hazardous chemicals, where no superseding occurrence or significant interruption breaks the chain of causation. Congress intended to allow state or territorial courts to adjudicate claims involving truly localized environmental torts with localized injuries. View "Abraham v. St Croix Renaissance Grp., LLLP" on Justia Law

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As the tanker Athos neared Paulsboro, New Jersey, an abandoned anchor in the Delaware River punctured its hull and caused 263,000 gallons of crude oil to spill. The owner of the tanker, Frescati, paid $180 million in cleanup costs and ship damages, but was reimbursed for nearly $88 million by the U.S. government under the Oil Pollution Act, 33 U.S.C. 2701. Frescati made claims against CARCO, which ordered the oil and owned the terminal where the Athos was to unload, claiming breach of the safe port/safe berth warranty made to an intermediary responsible for chartering the Athos and negligence and negligent misrepresentation. The government, as a statutory subrogee for the $88 million reimbursement reached a limited settlement agreement. The district court held that CARCO was not liable for the accident, but made no findings of fact and conclusions of law, required by FRCP 52(a)(1). The Third Circuit remanded for findings, but stated that the Athos and Frescati were implied beneficiaries of CARCO‘s safe berth warranty; that the warranty is an express assurance of safety; and that the named port exception to that warranty does not apply to hazards that are unknown and not reasonably foreseeable. The court noted that it is not clear that the warranty was actually breached, absent findings as to the Athos‘s actual draft or the clearance provided. The court further stated that CARCO could be liable in negligence for hazards outside the approach to CARCO‘s terminal. View "United States v. Citgo Asphalt Ref. Co." on Justia Law

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Atlantic, a New Jersey pipe foundry, and four of its managers were convicted of conspiring to commit environmental pollution and worker safety violations, attempting to cover up or impede federal investigation of those violations, and violations of the Clean Water Act (33 U.S.C. 1251) and the Clean Air Act (42 U.S.C. 7413(c)). Defendants illegally pumped contaminated water into storm drains that drained into the Delaware River; unlawfully burned 50-gallon drums of paint waste in a cupola and emitted the fumes into the air; and attempted to cover up work-related accidents at its facility, one of which resulted in the death of an employee who was run-over by a forklift. The district court imposed sentences of 70, 41, 30 and six months’ imprisonment on the managers and applied the Alternative Fines Act, 18 U.S.C. 3571(c)(1), rather than the CWA and CAA, and fined Atlantic the maximum penalty of $500,000 per violation on conspiracy, four counts of obstruction, eight CWA counts, and one CAA count for a total fine of $8 million. It also sentenced Atlantic to 4 years’ probation, with a court-ordered monitor to ensure regulatory compliance. The Third Circuit affirmed, rejecting challenges to evidentiary rulings, jury instructions, and the sentences. View "United States v. Maury" on Justia Law

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Philadelphia International Airport is the ninth busiest airport in the U.S. Since 1999, PHL has been among the 10 most delayed airports and has contributed to delays at airports nationwide because its runways are too short, too close together, and too few. After receiving the City’s proposal for expansion in 2003, the FAA prepared an Environmental Impact Statement. In 2008 the FAA published a three-volume, 900-page draft EIS. The EPA submitted comments, citing alleged data omissions in the FAA’s analysis. The FAA considered and responded to each of the EPA’s comments in the final EIS. Although disagreements remained, in 2010, the FAA published its Record of Decision, which approved the expansion and delineated reasons for approval, including a finding that the project was reasonably consistent with existing plans of public agencies for development of areas surrounding the airport, as required by the Airport and Airway Improvement Act (AAIA), 49 U.S.C. 47106(a)(1. Objectors alleged violations of the National Environmental Policy Act, 42 U.S.C. 4321 and the AAIA. The Third Circuit denied review, finding that the FAA decision was not arbitrary. View "Twp. of Tinicum v. U.S. Dep't of Transp." on Justia Law