Articles Posted in U.S. 6th Circuit Court of Appeals

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The Energy Policy Act of 2005 directs the Department of Energy (DOE) to fund alternative energy projects called “biorefinery demonstration projects,” 42 U.S.C. 16232(d), to develop ways to convert trees, crops and agricultural waste into energy. Frontier sought a grant to construct a plant in Michigan’s Upper Peninsula that would use about 770 tons of wood chips per day to produce 20 million gallons of ethanol per year. As required by the National Environmental Policy Act (NEPA), DOE prepared a draft environmental assessment. After receiving input, DOE issued a final environmental assessment that proposed changes, including use of a biomass boiler instead of natural gas boilers to generate power for the plant. DOE issued a finding of “no significant impact” and awarded $100 million toward construction of the plant, about 34% of its total cost. Opponents sued, alleging violation of the NEPA. The district court held that the plaintiffs lacked standing and that the claims also failed on the merits. The Sixth Circuit reversed with respect to standing, holding that the opponents did show injury subject to redress, but affirmed on the merits, stating that DOE completed a thorough environmental assessment and reasonably described the environmental impacts identified as not significant. View "Klein v. U.S. Dep't of Energy" on Justia Law

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The Surface Mining Control and Reclamation Act, 30 U.S.C. 1202(a) allows states to enact and administer regulatory programs consistent with federal standards, subject to federal approval. Kentucky’s Department for Natural Resources assumed responsibility for SMCRA implementation through its Division of Mine Permits, Ky. Rev. Stat. 350.028, .465(2). Its program has been approved by the U.S. Department of the Interior since 1982. A typical surface mining operation also requires permits under the Clean Water Act, 33 U.S.C. 1251: a 401 permit for “discharge into the navigable waters;” a 402 permit for “discharge of any pollutant, or combination of pollutants;” and a 404 permit for “discharge of dredged or fill material into the navigable waters at specified disposal sites.” A 404 permit is issued by the U.S. Army Corps of Engineers in compliance with EPA guidelines, 33 U.S.C. 1344(b)(1). Kentucky authorized a Perry County surface mining operation; the operator obtained 404 permit from the Corps, authorizing it to “mine through” and fill surface stream beds, which are already in a degraded state, requiring offset of the limited environmental effect by improving other streams in the watershed. Opponents argued that the National Environmental Policy Act required the Corps to consider the public health impacts related to surface mining in general, and that the Corps violated the CWA by using flawed analysis of the mitigation plan. The district court rejected the arguments. The Sixth Circuit affirmed. View "Kentuckians for the Commonwealth v. U.S. Army Corps of Eng'rs" on Justia Law

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The Fillers planned to demolish an unused Chattanooga factory. They knew the site contained asbestos, a hazardous pollutant under the Clean Air Act. Environmental Protection Agency regulations require removal of all asbestos before any demolition. Asbestos materials must be wetted, lowered to the ground, not dropped, labeled, and disposed of at an authorized site. Fillers hired AA, a certified asbestos surveying company, which estimated that it would cost $214,650 to remove the material safely. Fillers hired Mathis to demolish the factory in exchange for salvageable materials. Mathis was required to use a certified asbestos contractor. Mathis applied for an EPA demolition permit, showing an estimated amount of asbestos far less than in the AA survey. The agency’s asbestos coordinator contacted Fillers to verify the amount of asbestos. Fillers did not send the survey, but provided a revised estimate, far less than the survey’s estimate. After the permit issued, the asbestos contractor removed “[m]aybe, like, 1/100th” of the asbestos listed in the AA survey. Temporary laborers were hired, not equipped with protective gear or trained to remove asbestos. Fillers supervised. The work dispersed dust throughout the neighborhood. An employee of a daycare facility testified that the children were unable to play outside. Eventually, the EPA sent out an emergency response coordinator and declared the site an imminent threat. Mathis and Fillers were convicted of conspiracy, 18 U.S.C. 371, and violations of the Clean Air Act, 42 U.S.C. 7413(c). Fillers was also convicted of making a false statement, 18 U.S.C. 1001(a)(2), and obstruction of justice, 18 U.S.C.1519. The district court sentenced Mathis to 18 months’ imprisonment and Fillers to 44 months. The Seventh Circuit affirmed. View "United States v. Mathis" on Justia Law

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In 2007, the Army Corps of Engineers issued two nationwide general permits that authorized surface and underground coalmining operations to discharge dredged and fill material into waters of the United States. The Corps conducted a public notice-and-comment period and completed a cumulative-impacts analysis that projected the permits’ respective environmental impacts before determining that compensatory mitigation would reduce adverse impacts to a minimal level. The Corps disclosed its analyses and findings in each permit’s Environmental Assessment in lieu of an environmental impact statement. Riverkeeper sued, alleging violations of the Clean Water Act, 33 U.S.C. 1344(e), the National Environmental Protection Act, 42 U.S.C. 4332(2)(C), and the Administrative Procedure Act, 5 U.S.C. 706, during the Corps’ issuance of two nationwide coal-mining waste-discharge permits in 2007. The district court granted summary judgment to the Corps. During Riverkeeper’s appeal, the permits at issue expired. The Sixth Circuit concluded that the case remains in controversy and reversed in part. Although the Corps repeatedly objected to the feasibility of Riverkeeper’s demands, in taking the “easier path” of preparing an environmental assessment instead of an environmental impact statement the Corps failed to follow CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts. View "KY Riverkeeper, Inc. v. Rowlette" on Justia Law

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Seven affiliated debtors are entities that conducted deep and strip coal mining and operated coal prep plants and loading facilities in three states. The bankruptcy court authorized joint procedural administration, but not substantive consolidation. The administrative expense claims at issue arise from environmental damage. The land and the coal were subject to leases that terminated before commencement of bankruptcy proceedings. The West Virginia Department of Environmental Protection (WVDEP) issued mining permits and National Pollutant Discharge Elimination System permits to the debtors and affiliated entities for the operations. The bankruptcy court denied WVDEP’s application for administrative expenses against two debtors. The Sixth Circuit Bankruptcy Appellate Panel held that the court failed to properly analyze the debtors’ potential liability for reclamation obligations associated with permits owned by their affiliate. WVDEP’s administrative expense claims were properly denied to the extent they were based on derivative liability for the debts of the affiliate, either based on veil piercing or substantive consolidation. The court abused its discretion in denying the claims that were based on direct liability for reclamation obligations associated with the permits owned by the affiliate and in denying claims that were independent of the threshold question of joint and several liability for reclamation obligations associated with the permits owned by an affiliate. View "In re: Appalachian Fuels, LLC" on Justia Law

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In 1977, the Environmental Protection Agency sued Michigan, Detroit, and the Detroit Water and Sewerage Department for exceeding effluent limitations and failing to satisfy monitoring requirements under the Clean Water Act, 33 U.S.C. 1251. In 1977, the district court entered an initial Consent Judgment. Over the next 30 years, the DWSD fell in and out of compliance. In the most recent round of violations and court orders, the district judge gave a committee of local officials 60 days to fashion a final plan or face more intrusive court-ordered remedies. The judge adopted most of the committee’s recommendations but also directly abrogated some provisions in collective bargaining agreements of approximately 20 different bargaining units. None of the DWSD unions were parties. Unions sought to intervene. The district court denied the motions as untimely. The Sixth Circuit reversed. Although the unions were aware of the potential significance of the proceedings and failed to intervene before the court-approved committee returned its recommendations, total denial of intervention was an abuse of discretion. The unions have substantial interests at stake that “may as a practical matter” be impaired absent intervention. While concerns of delay and re-litigation are serious, they can be alleviated by limiting the scope of intervention. View "Unted States v. City of Detroit" on Justia Law

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The Clean Air Act New Source Review program forbids construction of new pollution sources without a permit, 42 U.S.C. 7475. Operators of major pollutant-emitting sources who plan construction must make a preconstruction projection of the increase in emissions following construction, to determine whether the project constitutes a “major modification,” requiring a permit. DTE planned on replacing 2,000 square feet of tubing, the economizer, and large sections of reheater piping; installing a new nine-ton device that provides voltage that creates the electromagnetic field needed for the rotor to produce electricity; and refurbishing boiler feedwater pumps at its power plant. The project required 83 days and $65 million. DTE performed required calculations and projected an emissions increase of 3,701 tons per year of sulfur dioxide and 4,096 tons per year of nitrogen oxides. Under the regulations, an increase of 40 tons per year of either substance is significant. DTE determined that the increase fell under the demand growth exclusion. The Michigan Department of Environmental Quality took no action and construction began. The U.S. EPA filed notice of violation. The district court granted DTE summary judgment. The Sixth Circuit reversed. While the regulations allow operators to undertake projects without having EPA second-guess their projections, EPA is not categorically prevented from challenging blatant violations until after modifications are made. View "United States v. DTE Energy Co." on Justia Law

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GenCorp owned a vinyl-manufacturing facility, including hazardous waste management units (RCRA units), which reclaimed solvent waste. Under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, GenCorp was obligated to obtain permits for the units. GenCorp had not received all of the required permits when it agreed to sell the facility. The agreement specified GenCorp’s retained liabilities, and contained a provision requiring each party to indemnify and defend against their retained liabilities. Textileather became the owner in 1990 and decided to discontinue use of the RCRA units. Textileather began the closure process required by Ohio Administrative Code 3745-66; the Ohio Environmental Protection Agency (OEPA) issued several Notices of Deficiency. Textileather challenged the OEPA’s 2001 closure plan and asserted that GenCorp was obligated to indemnify and defend. The district court ruled in favor of GenCorp, holding that, under the agreement, OEPA did not constitute a “third party” and Textileather’s RCRA closure proceedings did not constitute a “claim or action.” The Sixth Circuit reversed in part and directed the district court to enter judgment for Textileather on the legal question of whether the retained liabilities section of the agreement applies. The court affirmed that GenCorp retained only CERCLA claims covered by certain sections. View "Textileather Corp. v. GenCorp Inc." on Justia Law

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Summit’s natural gas sweetening plant in Michigan makes gas usable by removing hydrogen sulfide. Summit owns all of the production wells and subsurface pipelines that connect wells to the plant. The wells are located over a 43-square-mile area, from 500 feet to eight miles from the plant. Summit does not own property between the wells or property between the wells and the plant. Flares burn off gas waste to relieve pressure on gas collection equipment. The closest flare is about one half-mile from the plant, others are over one mile away. The plant and most of the wells and flares are located on a tribal reservation. All emit sulfur dioxides and nitrous oxides, air pollutants regulated under the Clean Air Act, 42 U.S.C. 7401-7671q. The plant alone has potential to emit just under 100 tons of these pollutants per year. Each flare and well has potential to emit lower amounts. The EPA determined that the plant, flares, and wells constituted a single stationary source under the CAA. The Sixth Circuit vacated and remanded for determination of whether the plant and wells are sufficiently physically proximate to be considered “adjacent” within the ordinary meaning of that requirement. Interpreting the requirement in terms of mere functional relatedness was unreasonable. View "Summit Petroleum Corp. v. U.S. Envtl. Prot. Agency" on Justia Law

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Ohio enacted legislation under which it no longer will apply the "best available technology" standard to small emitters as part of its state implementation plan (SIP) for National Ambient Air Quality Standards for certain types of air pollutants (Clean Air Act, 42 U.S.C. 7409). Act. The U.S. EPA did not approve a change to the SIP, but has taken no action to require the state to enforce the standard. Environmentalists sued under the Clean Air Act’s citizen-suit provision. The district court entered an injunction expressly ordering the state to administer the federal rule. The Sixth Circuit reversed and remanded for dismissal, concluding that intervening Supreme Court precedent and the text and structure of the Clean Air Act itself indicate that the citizen-suit provision does not authorize this lawsuit, but authorizes suit against the federal EPA. View "Sierra Club v. Korleski" on Justia Law