Justia Environmental Law Opinion Summaries

PaintCare and the American Coatings Association sought a writ of mandate, entered in favor of the California Department of Resources Recycling and Recovery to invalidate regulations adopted to implement and enforce the Architectural Paint Recovery Program (Pub. Resources Code, 48700). They argued that CalRecycle did not have the authority to adopt regulations to implement and enforce the Program and, even if it had the authority, the regulations improperly enlarge the scope of the Program by setting requirements for manufacturers that go beyond the Program. The court of appeal affirmed the trial court’s rejection of the arguments. CalRecycle had authority to adopt the regulations, which do not go beyond the Program because they do not dictate how manufacturers comply with the Program. The regulations set forth what information manufacturers must provide to CalRecycle to comply with the Program. View "PaintCare v. Mortensen" on Justia Law

ICG operated Thunder Ridge surface mine, under a five-year Coal General Permit issued by the Kentucky Division of Water (KDOW) pursuant to the National Pollutant Discharge Elimination System, which allowed ICG and others to discharge listed pollutants into the state’s water. Conditions included effluent limitations for specific pollutants, but not for selenium, a naturally occurring element that endangers aquatic life at certain concentrations. The permit acknowledged the possibility of selenium discharges. KDOW required a single selenium sampling during the five-year period. In 2009, ICG sought to expand its permit coverage and was required to submit water samples from a discharge point. Selenium exceeded the “acute” limit. Additional tests at six locations did not reveal selenium above the acute limit. Two sites exceeded the “chronic” limit. The Department of Natural Resources (KDNR) took a “preventive enforcement action,” requiring ICG to test again in 2011. The U.S. Office of Surface Mining deemed KDNR’s response appropriate and notified Sierra Club that it would take no further action. Sierra Club sued under the Water Pollution Control Act, 33 U.S.C. 1251, and the Surface Mining Control and Reclamation Act, 30 U.S.C. 1201. The district court awarded ICG summary judgment, finding that the permit shield precluded CWA liability. The Sixth Circuit affirmed, rejecting an argument that the permit shield did not apply because the discharge was neither expressly authorized nor reasonably contemplated by KDOW. View "Sierra Club v. ICG Hazard, LLC" on Justia Law

In 1979, plaintiff Morristown Associates purchased commercial property located in Morristown. The property contained a strip-mall-style shopping center known as Morristown Plaza. Among the tenants was Plaza Cleaners, a dry cleaning business owned at the time by Robert Herring. Herring and his wife had entered into a lease with the property's previous owner, Morris Center Associates, in 1976. Due to construction, Herring was unable to occupy and operate Plaza Cleaners until 1978. At some point before moving in, Herring installed a steam boiler in a room at the rear of the leased space and an underground storage tank (UST) for fuel to operate the boiler. In 1985, Herring sold Plaza Cleaners to defendants Edward and Amy Hsi. The Hsis owned the business until 1998 when it was sold to current owner and third-party defendant, Byung Lee. In August 2003, a monitoring of a well installed near Plaza Cleaner's UST revealed fuel oil contamination. A subsequent investigation revealed that although the UST was intact, the fill and vent pipes were severely deteriorated, with large holes along a significant portion of their lengths. Plaintiff's experts concluded that those holes had developed as early as 1988 and, since that time, oil had been leaking from the pipes each time the tank was filled. Each of the named oil company defendants in this case allegedly supplied fuel oil to Plaza Cleaners at various times between 1988 and 2003. The issue in this appeal was whether the general six-year statute of limitations contained in N.J.S.A. 2A:14-1 applied to private claims for contribution made pursuant to the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11f(a)(2)(a). Based on the plain language of the Spill Act, reinforced by its legislative history, the New Jersey Supreme Court held that N.J.S.A. 2A:14-1 s six-year statute of limitations was not applicable to Spill Act contribution claims. The Court therefore rejected the contrary determination of the Appellate Division and reversed and remanded this case to the Appellate Division for its consideration of other issues raised on appeal that were unaddressed. View "Morristown Associates v. Grant Oil Co." on Justia Law

Black Mesa sought costs and expenses from the OSM after Black Mesa participated in a successful challenge to OSM's grant of a coal mining permit revision. The ALJ denied the fee request, the IBLA affirmed, and the district court affirmed. The court held that, on the standard of review applicable here, the review of the agency's "eligibility" determination is de novo and its "entitlement" determination is reviewed for substantial evidence; on de novo review, Black Mesa is "eligible" for fees because it showed some degree of success on the merits; in light of the court's decision on "eligibility," the court declined to reach whether, on this record, Black Mesa was "entitled" to fees; and the court remanded for the agency to consider the issue. In addition, the court rejected Black Mesa's argument that the Secretary waived a challenge to the reasonableness of any award amount that the agency might grant on remand for costs and expenses reasonably incurred for Black Mesa's participation in the proceedings at the agency level. Accordingly, the court reversed in part, vacated in part, and remanded. View "Black Mesa Water Coalition v. Jewell" on Justia Law

Visteon, a worldwide manufacturer headquartered in Michigan, sued National Union, from which it had purchased liability insurance between 2000 and 2002. The policy excluded liability resulting from pollution caused by Visteon, except liability arising from a “Completed Operations Hazard.” In 2001, the toxic solvent TCE that was used to clean machinery in Visteon’s Connersville, Indiana plant was discovered to have leaked into the soil and groundwater. Neighboring landowners sued Visteon. National Union has refused to indemnify or defend. Indiana does not enforce standard pollution-exclusion clauses. Michigan law does enforce the more general kind of pollution-exclusion clause found in the policy. The district court ruled that Michigan law governed and held that Visteon was not entitled to coverage under the Completed Operations Hazard clause. The Seventh Circuit affirmed. The risk materialized in Indiana, but that could not have been foreseen. The Indiana victims were compensated by Visteon, and it is unclear what benefit the state would have derived from reimbursement of Visteon’s costs by National Union.” The court rejected Visteon’s argument that its “work” was “completed” each time a contract to supply products made at the plant was performed and concluded that the exception did not apply. View "Visteon Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh" on Justia Law

After issuing an environmental impact statement (EIS), the National Park Service adopted a plan for the management of deer in Rock Creek National Park in Washington, D.C. The plan involved the killing of white-tailed deer. Objectors argued that the plan violated statutes governing management of the Park and was not adopted in compliance with the Administrative Procedure Act, and that the EIS did not meet the requirements of the National Environmental Policy Act. The district court rejected the claims on summary judgment. The D.C. Circuit affirmed. Noting that the Organic Act expressly provides that the Secretary of the Interior “may also provide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of any said parks, monuments, or reservations,” so that the agency’s interpretation of its enabling act is reasonable. Given the impact of deer on plant life and vehicle collisions, the decision is not arbitrary. Finding no violation of NEPA, the court concluded that the EIS was not required to consider the psychological harm that some visitors may suffer from simply knowing that the intentional killing of deer happens at Rock Creek Park. View "Grunewald v. Jarvis" on Justia Law

Borg Warner appealed the district court's determination that it is liable to Vine Street for 75% of the costs associated with cleaning up a plume of perchlorethylene (PERC) that discharged from a dry cleaning business under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9607(a)(3), and the Texas Solid Waste Disposal Act (TSWDA), Tex. Health & Safety Code 361.271(a)(3). The liability was associated with a former subsidiary of Borg Warner, Norge, which furnished dry cleaning equipment, design assistance, and an initial supply of PERC to the cleaning business. The court concluded that Borg Warner is entitled to judgment in its favor on the CERCLA and TSWDA claims because Norge did not intentional y dispose of a waste product when it sold dry cleaning equipment and an initial supply of PERC to the dry cleaning business. The court noted that the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. United States changed the relevant law while this case was on appeal. Therefore, the court held that the district court's decision cannot stand in light of Burlington Northern. View "Vine Street LLC v. Keeling" on Justia Law

The subject property was two large parcels of land in the Town of Manchester. Sand, rock, and gravel had been extracted from a portion of one or both parcels for decades. In September 1990, respondents' predecessor-in-interest received an Act 250 permit authorizing a nineteen-lot residential subdivision on the northern parcel. Among other conditions, the Act 250 permit provided that it would expire one year from the date of issuance if the permittee had not demonstrated an intention to proceed with the project in accordance with 10 V.S.A. 6091(b), and otherwise would expire on October 1, 2020 unless extended by the District Environmental Commission. Other permit conditions prohibited any "changes . . . in the design or use" of the project without written approval of the district coordinator or commission, and specified that the permit and all conditions therein would "run with the land and . . . be binding upon and enforceable against . . . all assigns and successors in interest." In September 1992, the district commission issued an amendment to the permit extending the time for construction of the project to October 1994. In June 1994, respondent Dorr Oil Company purchased a portion of the property designated as a residential tract. The warranty deed expressly referenced the Act 250 permit "and any and all amendments thereto." Shortly thereafter, respondent Donald Dorr, on behalf of Dorr Oil applied for and received a further permit amendment extending the time for construction to October 1995. During this period, another company operated by Dorr, respondent MGC, Inc., purchased the southerly parcel (the "adjacent tract"), and continued to operate a gravel pit "most or all" of which the trial court found was located on the adjacent tract. Dorr took no steps to begin the actual subdivision of the project tract or the development of an internal roadway. In March 2006, following a property-tax reappraisal of the tracts by the Town, respondents filed a request with the district commission to declare the Act 250 permit as abandoned through non-use. The commission, in response, issued a notice of intent to abandon the permit. The owners of a nearby residential property filed an objection, asserting that respondents had made a "material change" to the use authorized by the Act 250 permit by expanding gravel extractions activities onto the residential project tract. The commission then "tabled" the abandonment request "pending a jurisdictional opinion from the district coordinator on the material change question." The district coordinator thereupon requested further information from the parties, visited the site with respondent Dorr and his attorney, and issued a draft jurisdictional opinion for comment. In January 2007, the coordinator issued a formal opinion, finding that the "Dorr gravel pit has expanded onto the parcel covered by [the Act 250 permit]," that this constituted "a material change to that permit," and therefore that "a permit amendment [was] required." Respondents neither appealed the jurisdictional opinion to the Environmental Division, applied for a permit amendment, nor abated the gravel extraction activities on the project tract. Following respondents' inaction, in October 2008, the NRB chair issued an administrative order determining that respondents had violated conditions of the Act 250 permit by making a material change to the project without a land-use permit amendment. Respondents appealed the Superior Court, Environmental Division's judgment affirming the NRB's decision that respondents' gravel-extraction activities violated an Act 250 residential-subdivision permit. Respondents argued the ruling was in error because the permit had expired. Finding no reversible error, the Supreme Court affirmed. View "Nat. Resources Bd. Land Use Panel v. Dorr" on Justia Law

She-Sha Cafe and Hookah Lounge is a hookah bar that serves food in areas where smoking occurs. In 2010, the Montgomery County Health Department charged She-Sha with two violations of the Virginia Indoor Clean Air Act (VICAA), which prohibits smoking in restaurants. The Virginia Department of Health upheld the violations, concluding that She-Sha was correctly labeled as a restaurant and that none of the exceptions in the VICAA applied. The State Health Commissioner and the circuit court upheld the violations. A panel of the Court of Appeals affirmed, concluding that She-Sha was not exempt from regulation as a “retail tobacco store” because it was not operating exclusively as such. The full Court of Appeals overruled the panel, concluding that She-Sha, as a restaurant, was exempt from VICAA because it was also a retail tobacco store. The Supreme Court reversed, holding that She-Sha was not exempt from regulation under the VICAA because it was not exclusively a retail tobacco store. View "Va. Dep't of Health v. Kepa, Inc." on Justia Law

The California Department of Forestry and Fire Protection approved a “Nonindustrial Timber Management Plan” (NTMP) authorizing logging on 615 privately held acres of north coast redwood and Douglas fir forest in Mendocino County. Opponents claimed violations of the California Environmental Quality Act (CEQA; ub. Resources Code, 21000) and the California Endangered Species Act (Fish & G. Code, 2050) and that the California Department of Fish and Wildlife failed to fulfill its public trust and statutory obligations by failing to object to the NTMP. The trial court denied relief. The court of appeal affirmed, rejecting arguments that the NTMP failed to adequately assess cumulative impacts of logging; that the NTMP contains no analysis of how the area will be retained as functional habitat; that the NTMP provided an inadequate description of the environmental setting, murrelet presence within the assessment area, and importance of the area to long-term murrelet survival and recovery. View "Ctr. for Biological Diversity v. Cal. Dep't of Forestry & Fire Prot." on Justia Law