Justia Environmental Law Opinion Summaries

These appeals arose from disputes as to liability for cleanup of hazardous substances at a former fertilizer manufacturing site in Charleston, South Carolina. After incurring response costs, Ashley, the current owner of a portion of the site, brought a cost recovery action against PCS under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675. PCS counterclaimed and also brought third-party contribution actions against parties with past and current connections to the site. The district court bifurcated the trial. The district court found at the first bench trial that PCS was a potentially responsible party jointly and severally liable for response costs at the site. The district court found at the second trial that some of the other parties, including Ashley, were potentially responsible parties, each liable for an allocated portion of the site's response costs. The parties appealed but the court affirmed the district court's judgment in all respects. View "PSC Nitrogen Inc. v. Ashley II of Charleston" on Justia Law

Defendants, PG&E and Pacific Bell, own and maintain utility poles throughout the San Francisco Bay Area. Plaintiff filed this action against both companies, alleging that the poles discharged wood preservative into the environment in violation of the Clean Water Act (CWA), 33 U.S.C. 1251-1387, and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k. The court affirmed the district court's dismissal of the action under Rule 12(b)(6) where plaintiff failed to state a claim under the CWA because discharges of stormwater from the utility poles were neither a "point source discharge" nor "associated with industrial activity" and where plaintiff failed to state a claim under the RCRA because wood preservation that escaped from the utility poles was not a "solid waste." The court also held that the district court did not abuse its discretion in denying plaintiff leave to amend. View "Ecological Rights Foundation v. PG&E" on Justia Law

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

The League sought direct appellate review of two letters sent by the EPA to Senator Charles Grassley, arguing that these letters effectively set forth new regulatory requirements with respect to water treatment processes at municipally owned sewer systems. The League argued that the EPA lacked statutory authority to impose these regulations and violated the Administrative Procedures Act (APA), 5 U.S.C. 500 et seq., by implementing them without first proceeding through the notice and comment procedures for agency rulemaking. The court concluded that the case was ripe for judicial review and the League had standing to assert its claims; the court vacated both the mixing zone rule in the June 2011 letter and the blending rule in the September 2011 letter as procedurally invalid; and the court vacated the blending rule as an excess of statutory authority insofar as it would impose the effluent limitations of the secondary treatment regulations internally, rather than at the point of discharge into navigable waters. The court remanded to the EPA for further consideration. View "Iowa League of Cities v. EPA" on Justia Law

The Clean Water Act requires that National Pollutant Discharge Elimination System (NPDES) permits be secured before pollutants are discharged from any point source into navigable waters of the United States, 33 U. S. C. 1311(a), 1362(12). An Environmental Protection Agency implementing regulation, the Silvicultural Rule, specifies which types of logging-related discharges are point sources, requiring NPDES permits unless some other provision exempts them. One exemption covers “discharges composed entirely of stormwater,” 33 U. S. C. 1342(p)(1), unless the discharge is “associated with industrial activity.” Under the EPA’s Industrial Stormwater Rule, the term “associated with industrial activity” covers only discharges “from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” A final version of a recent amendment to the Industrial Stormwater Rule clarifies that the NPDES permit requirement applies only to logging operations involving rock crushing, gravel washing, log sorting, and log storage facilities, which are all listed in the Silvicultural Rule. Georgia-Pacific has a contract to harvest timber from an Oregon forest. When it rains, water runs off its logging roads into ditches that discharge the water into rivers and streams, often with sediment, which may be harmful to fish and other aquatic organisms. NEDC sued Georgia-Pacific and state and local governments. The district court dismissed, concluding that NPDES permits were not required because the ditches were not point sources of pollution under the CWA and the Silvicultural Rule. The Ninth Circuit reversed. The Supreme Court reversed, first holding that section1369(b), did not bar the district court from hearing a citizen suit against an alleged violator and seeking to enforce an obligation imposed by the CWA. The recent amendment to the Industrial Stormwater Rule did not make the case moot. Past discharges might be the basis for penalties even if, in the future, those discharges will not require a permit. The pre-amendment Rule, as construed by the EPA, exempted discharges of channeled stormwater runoff from logging roads from the NPDES requirement. The regulation is a reasonable interpretation of the statutory term “associated with industrial activity;” it was reasonable for the EPA to conclude that the conveyances at issue are “directly related” only to harvesting raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant.” The EPA has been consistent in its view that the types of discharges at issue do not require NPDES permits. View "Decker v. Nw Envtl Def. Ctr." on Justia Law

The Wyoming Oil and Gas Conservation Commission approved Cimarex Energy Company's plan to reinject waste carbon dioxide and hydrogen sulfide into a producing natural gas formation in southwest Wyoming over the objection of Exxon Mobil Corporation. Exxon appealed. The district court affirmed the Commission's decision. The Supreme Court affirmed in part and reversed and remanded in part, holding (1) the Commission properly denied Exxon's petition for a rehearing; but (2) the Commission failed to provide sufficient findings of fact as to whether Cimarex's plan to reinject carbon dioxide and hydrogen sulfide would result in waste of natural gas and improperly interfere with Exxon's correlative rights. Remanded to the Commission to make appropriate findings of both basic and ultimate facts. View "Exxon Mobil Corp. v. Wyo. Oil & Gas Conservation Comm'n" on Justia Law

This action arose from the Department of Environmental Protection's (Department) issuance of a waterways license under Mass. Gen. Laws ch. 91 (chapter 91 license) to the Boston Redevelopment Authority (BRA) to redevelop a section of land owned by the BRA on the seaward end of Long Wharf (project site). Plaintiffs, ten residents of Boston's North End neighborhood, appealed the issuance of the chapter 91 license, claiming the Department acted unconstitutionally and beyond its statutory authority when it issued the license without obtaining two-thirds vote of the Legislature as required by article 97 of the amendments to the Massachusetts Constitution. After the a Department's office of appeals affirmed the issuance of the license, the superior court ordered declaratory relief and issued a writ of mandamus ordering the Department to enforce article 97. The Supreme Court reversed, holding that article 97 did not apply to the project site, and therefore, a two-thirds vote of the Legislature was not required to approve the planned development. Remanded. View "Mahajan v. Dep't of Envtl. Prot." on Justia Law

Plaintiff filed a subrogation suit against defendants for recovery of insurance payments to its insured, Taube-Koret, for environmental response costs Taube-Koret incurred in cleaning up pollutants released on its property. The court concluded that plaintiff had no standing to bring suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-9675, section 107(a) because it did not incur any "costs of response" related to the removal or remediation of a polluted site, and because the common law principle of subrogation did not apply to section 107(a); plaintiff could not bring a subrogation claim under section 112(c) because it did not allege that Taube-Koret was a "claimant"; and plaintiff's state law claims were time-barred. Accordingly, the court affirmed the district court's dismissal of plaintiff's third amended complaint with prejudice under Rule 12(b)(6). View "Chubb Custom Ins. Co. v. Space Systems/ Loral, Inc., et al" on Justia Law

Plaintiffs brought two citizen enforcement actions under the Clean Water Act (CWA) against Defendants pursuant to 33 U.S.C. 1365(a). The suits were dismissed without prejudice due to defects in the service or contents of earlier pre-suit notices. Plaintiffs then brought their most recent citizen suit, which the district court dismissed without prejudice, finding that Plaintiffs had failed to allege or establish several mandatory prerequisites to a citizen suit under the CWA in their pre-suit notice. The First Circuit Court of Appeals reversed in part, holding that the district court erred in dismissing the case, as (1) Plaintiffs' pre-suit notice satisfied the requirement that the notice identify the potential plaintiffs, provide basic contact information, and allow the putative defendants to identify and remedy the alleged violations; and (2) therefore, the enforcement action may proceed. View "Paolino v. JF Realty, LLC" on Justia Law

Butler County Diary, LLC (BCD) requested a permit to install a liquid livestock manure pipeline under a public road. Read Township and Butler County cited two regulations it had adopted governing livestock confinement facilities in denying BCD's request. BCD challenged the regulations, alleging that the regulations were invalid and unenforceable. The district court ruled that the Township had the statutory authority to enact the regulations and that they were not preempted by the Livestock Waste Management Act or Nebraska's Department of Environmental Quality livestock waste control regulations. The Supreme Court affirmed, holding that the Township had the statutory authority to enact the pertinent regulations and the regulations were not preempted by state statute or regulation. View "Butler County Dairy, LLC v. Butler County" on Justia Law