Articles Posted in U.S. 7th Circuit Court of Appeals

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Until the early 1970s, CBS (formerly Westinghouse) manufactured electrical capacitors at a Bloomington plant, using insulating fluid containing PCBs, which are carcinogens to humans and wildlife. CBS deposited defective capacitors at landfills where PCBs escaped and entered the environment and discharged PCB-laden water to a local sewage treatment plant. After PCB contamination was discovered and traced to six sites, federal, state, and municipal governments filed a Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. 9600, enforcement action, which resulted in a 1985 consent decree requiring CBS to dig up all PCB-contaminated materials at the sites and destroy them in a high-temperature incinerator. The Indiana legislature blocked the plan. The parties agreed on modified remedies for three sites but were unable to agree on remedies for the Lemon and Neal Landfills and Bennett’s Dump, all on CERCLA’s National Priorities List. The parties negotiated in stages to allow clean up to begin before resolution of all issues and established three phases. Stage 1 required CBS to remove sediment from the landfill contamination hot spots, to clean sediment at Bennett’s Dump to “industrial standards,” and to install caps at all three sites. After CBS completed Stage 1 in 2000, tests showed that PCBs had migrated into the bedrock and were still being released from into water and sediment. Stages 2 and 3 address current and future contamination of groundwater and sediment. In 2009 the district court approved a consent amendment in the ongoing CERCLA action and rejected citizens’ claims with respect to phases two and three. The Seventh Circuit affirmed. Section 113(h)(4) prevents the courts from reviewing claims about stages in progress, but does not bar judicial review of claims about the first remedial stage that are not affected by continuing clean-up efforts. View "Frey v. Envtl. Prot. Agency" on Justia Law

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Conrad, the “Banana Lady,” a self‐employed singer and dancer, performs in a giant banana costume. After performing a “singing telegram” at a credit union trade association event, she sued, charging infringements of intellectual property rights. Although Conrad claims that she stated that her performance was not to be recorded, except for “personal use,” photos were posted on websites. The district judge dismissed, finding most of the claims precluded by an earlier Wisconsin state court suit, also dismissed. The judge rejected a claim of copyright infringement, over which federal courts have exclusive jurisdiction, on the merits. The Seventh Circuit affirmed, first questioning Conrad’s copyright on the costume, because similar costumes are a common consumer product. The performance was not copyrightable, not being “fixed in any tangible medium of expression,” 17 U.S.C. 102(a). While she has the exclusive right to create or license reproductions of and derivative works from works that she has validly copyrighted, 17 U.S.C. 106(1), (2), it is unlikely that the photos and videos were derivative works. The Act forbids unauthorized recording of a musical performance, 17 U.S.C. 1101(a), and unauthorized display of copyrighted musical or choreographic work, section 106(5), but she did not cite either provision. The court noted Conrad’s “incessant filing of frivolous lawsuits” and suggested that the lower courts “consider enjoining her from filing further suits until she pays her litigation debts.” View "Conrad v. AM Cmty Credit Union," on Justia Law

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In 1983 Bitler leased gas stations to Marathon. The Environmental Protection Agency adopted new regulations so that that underground petroleum tanks and pipes at the gas stations had to be removed, upgraded, or replaced, 40 C.F.R. 280.21(a). In 1992 the parties amended the leases to make Marathon “fully responsible for removing” the tanks and pipes, filling holes created by the removal, complying with all environmental laws, “leav[ing] the Premises in a condition reasonably useful for future commercial use,” and “replac[ing] any asphalt, concrete, or other surface, including landscaping.” Marathon agreed to return the Premises “as nearly as possible in the same condition as it was in prior to such remediation work,” and to be responsible “for any and all liability, losses, damages, costs and expenses,” and to continue paying rent. The properties can be restored as gas stations with above‐ground storage tanks, and may be suitable for other commercial outlets. After completion of the work Bitler sued Marathon, alleging breach of contract and “waste.” The Seventh Circuit vacated to waste regarding Michigan properties, with directions to double those damages. The court affirmed dismissal of some of the contract claims. It would not conform to the reasonable expectations of the parties to limit liability for waste or other misconduct by a tenant simply because a lease had to be extended for an indefinite period to allow a response to unforeseen changes. View "Bitler Inv. Venture II v. Marathon Petroleum Co. LP" on Justia Law

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About 150 property owners in a village near the Mississippi River claim that defendants’ refinery leaked benzene and other contaminants into the groundwater. They sued, alleging nuisance and related torts. The district court certified the class. The Seventh Circuit reversed. The court first rejected an argument that most class members had suffered no injury. How many class members have a valid claim is determined after certification. Predominance of issues common to all class members, like other certification requirements, goes to the efficiency of a class action as an alternative to individual suits. In this case, the alleged contamination occurred over a 90‐year period and involved different levels of contamination, caused by different polluters. Not every class member has experienced the same diminution in property value even if everyone had the same level of contamination. Plaintiff’s hydrogeologist, intended to measure contamination by the benzene levels in the groundwater beneath the plaintiffs’ properties, even though their water does not come from groundwater, but from an uncontaminated aquifer. It cannot be assumed that a decline in the value of property in the village is the result of proximity to a refinery. The district judge did not explore any of these issues, but treated predominance as a pleading requirement. View "Shell Oil Co. v. Parko" on Justia Law

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An asbestos survey showed that the Kankakee building contained 2,200 linear feet of asbestos‐containing insulation around pipes. The owner hired Origin Fire Protection, to modify its sprinkler system. O’Malley, who operated Origin, offered to properly remove the pipe insulation for a cash payment ($12,000) and dispose of it in a lawful landfill. O’Malley provided no written contract for the removal work, but provided a written contract for the sprinkler system. O’Malley and Origin were not licensed to remove asbestos. O’Malley hired untrained workers, who stripped dry asbestos insulation off the pipes using a circular saw and other equipment provided by O’Malley. The workers were given paint suits, simple dust masks, and respirators with missing filters. They stopped working after inhaling dust that made them sick. Asbestos insulation was packed into garbage bags and taken to abandoned properties and a store dumpster. The Illinois EPA discovered the dumping; Superfund contractors began cleanup. O’Malley attempted to mislead federal agents. O’Malley was convicted of removing, transporting, and dumping asbestos‐containing insulation. The Seventh Circuit affirmed, rejecting an argument that the government did not prove the appropriate mens rea for Clean Air Act violations. O’Malley argued that the government was required to prove that he knew that the asbestos in the building was a regulated type of asbestos. View "United States v. O'Malley" on Justia Law

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The Wisconsin DNR decided to terminate a separate Pollutant Discharge Elimination System (WPDES) permit for Flambeau’s mining operation and to regulate Flambeau’s storm water discharge under its mining permit, allowing more frequent inspections. Flambeau has been in compliance since the permit issued in 1998. Plaintiff filed suit under the Clean Water Act’s citizen‐suit provision, 33 U.S.C. 1365(a)(1), alleging that Flambeau violated the CWA by discharging pollutants without a permit. They argued that the CWA permit shield did not apply because Flambeau did not have a WPDES permit and its mining permit was not issued pursuant to the CWA because Flambeau could not establish that the EPA had specifically approved the regulation under which the DNR issued the permit. The district court agreed and, after a trial, determined that Flambeau had violated the CWA and assessed penalties. The Seventh Circuit reversed, finding that the permit shield applies, characterizing the suit as an attempt to collaterally attack the WPDES program. View "WI Res. Prot. Council v. Flambeau Mining Co." on Justia Law

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The Federal Highway Administration and the Indiana Department of Transportation decided to complete an Indiana segment of I-69, which will eventually run from Canada to Mexico. Environmentalists opposed the route and sued under the Clean Water Act, 33 U.S.C. 1344, which authorizes the Army Corps of Engineers to issue permits for discharge of dredged or fill material into navigable waters of the United States. A permit will be denied if there is “a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem,” 40 C.F.R. 230.10(a), or if the discharge “would be contrary to the public interest.” 33 C.F.R. 320.4(a)(1). The permit at issue allows six streams to be filled where the highway crosses them and permits destruction of wetlands. The environmentalists proposed, in the alternative, simply upgrading to federal interstate highway standards, and existing route. In an environmental impact statement, the Corps concluded that no less environmentally damaging alternative was practicable, that the project was not contrary to the public interest, that damage to wetlands would be modest and would be offset by creation of new wetlands. The Seventh Circuit affirmed, rejecting challenges to the environmental analysis. View "Hoosier Envtl. Council, v. U.S. Army Corps of Eng'rs" on Justia Law

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Between 1994 and 1999 Commonwealth Edison modified five Illinois coal-fired power plants that had been operating on August 7, 1977, and were, therefore, grandfathered against a permitting requirement applicable to any “major emitting facility” built or substantially modified after that date in parts of the country subject to the rules about prevention of significant deterioration, 42 U.S.C. 7475(a), until the modification. The permit requires installation of “the best available control technology for each pollutant subject to regulation.” Commonwealth Edison did not obtain permits. There was no challenge until 2009, a decade after completion of the modifications. The district court dismissed a challenge as untimely. After finishing the modifications, Commonwealth Edison sold the plants to Midwest. The federal government and Illinois (plaintiffs) argued that the district court allowed corporate restructuring to wipe out liability for ongoing pollution. Midwest and its corporate parent (Edison Mission) filed bankruptcy petitions after the appeal was argued. The Seventh Circuit affirmed. Midwest cannot be liable because its predecessor would not have been liable had it owned the plants continuously. Commonwealth Edison needed permits before undertaking the modifications. The court rejected arguments of continuing-violation and continuing-injury. View "United States v. Midwest Generation, LLC" on Justia Law

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In the 1980s, the owners bought the Cottonwood seasonal campground in Cedar Grove, Indiana. Each of 50-80 campsites has a water spigot and sewer hookup for recreational vehicles. The property also has two restrooms with working toilets, sinks, and showers. In 1998, the Environmental Protection Agency (EPA) issued an Administrative Order under the Safe Drinking Water Act, 42 U.S.C. 300g-3(b), (g), finding that Cottonwood operated as a public water system and was required to sample its water system, and to notify any individuals who use the property of its past failure to monitor the water system. The owners tested the water only sporadically over the following years. They denied that the water system constituted a public water system under SDWA because the water spigots are marked as “Non-Potable,” so users would know that water is not provided for human consumption. The district court entered summary judgment, finding violation of SDWA. The Seventh Circuit dismissed an appeal, finding that the owners had not raised any of their appellate arguments in the district court. View "United States v. Ritz" on Justia Law

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In 2010 the U.S. and Wisconsin sued, alleging that defendants polluted the Lower Fox River and Green Bay with PCBs, and had liability under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, for response costs and destruction of natural resources, estimated at $1.5 billion. The Justice Department submitted a proposed consent decree, negotiated among the state, defendants (Brown County and the City of Green Bay), and Indian tribes. The U.S. offered $4.5 million because federal agencies might have contributed to the pollution. Menasha opposed the decree and counterclaimed against the U.S. for costs that Menasha would incur if found liable. Ordinarily a non-party to a consent decree is not bound by it, but approval of the consent decree would otherwise extinguish Menasha’s claims. Menasha sought information under the Freedom of Information Act, claiming that U.S. attorneys, being from defense and prosecution teams, actually have adverse interests, and that their communication concerning the case resulted in forfeiture of attorney work product privilege. The district court held that Menasha was entitled to the documents. The Seventh Circuit reversed, reasoning that Menasha’s claim actually amounted to assertion that the federal attorneys “ganged up” to reduce federal liability and that the documents are privileged. View "Menasha Corp. v. U.S. Dept. of Justice" on Justia Law