Articles Posted in Environmental

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On December 8, the U.S. Court of Appeals for the First Circuit, in the case of Town of Westport, et al., v. Monsanto Company, et al., affirmed the District Court’s ruling granting the defendants’ Motion for Summary Judgment in a products liability case involving the sale of products containing polychlorinated biphenyls (PCBs). The Court of Appeals, affirming the District Court’s ruling, held that

Monsanto did not breach the implied warranty of merchantability because it was not reasonably foreseeable in 1969 that there was a risk PCBs would volatilize from caulk at levels requiring remediation — that is, levels dangerous to human health.

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On November 22, the Texas Court of Appeals, sitting in Fort Worth, decided a case involving mandatory sanctions awarded under the Texas Citizens Participation Act (TCPA). In Rich v. Range Resources Corporation, et al., the Court of Appeals determined that although that denial of sanctions was erroneous, it was not harmful; error.

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In the case of CH2M Hill Engineers, Inc. v. Springer, et al., the Court of Appeals of Texas, Ninth District, sitting in Beaumont, decided an interlocutory appeals brought by the Appellant CH2M Hill Engineers, Inc. The Court of Appeals concluded that the “trial court did not abuse its discretion when it denied CH2M’s motion to dismiss” based upon the evidence before it, and affirmed the trial court’s order. The Court of Appeals noted that

While the record contains evidence that CH2M is registered with the Texas Board of Professional Engineers, the record does not contain any evidence that a licensed or registered professional practices within CH2M. Scott Neeley, Senior Designated Manager, signed the agreement between CH2M Hill and the Appellees. Mr. Neeley has not been shown to be a ‘licensed or registered professional,’ nor did he sign the contract as such. Moreover, the report is not signed by a licensed or registered engineer, but only issued by ‘CH2M Hill.’ CH2M has not proven, or even identified a single licensed professional engineer who performed professional engineering services for the firm.

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Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly referred to as Superfund, was enacted in December 1980, and Section 108(b) provides that the Environmental Protection Agency (EPA) shall promulgate, no later than December 11, 1985, financial responsibility requirements for classes of facilities—designated by EPA—consistent with “the degree and duration of risk associated with their production, transportation, treatment, storage or disposal of hazardous substances.” Despite this directive, EPA has not issued any financial responsibility rules under Section 108(b). This record of inaction prompted a lawsuit demanding compliance with the law.

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On November 27, the U.S. Court of Appeals for the Seventh Circuit decided the case of Betco Corporation v. Peacock, et al., which concerns a contractual dispute between the buyer and the seller of companies that produce and market a biodegradation product that is utilized in waste management and control. After paying out the escrow contemplated by the parties’ contract, Betco Corporation (Betco) “discovered that certificates of analysis were being re‐used or falsified by the sales team.” Critical of Betco’s due diligence efforts, the Seventh Circuit held that Betco

“failed to develop its argument in the district court that its breach of contract claim was in fact a claim for intentional misrepresentation that should have survived the Agreement’s one‐year time limit. Thus, it waived this claim, and we decline to hear its merits.

However, Betco did not waive its claim against Malcolm Peacock for breach of the duty of good faith. But our only inquiry in analyzing this claim is whether Malcolm acted in a way that injured or destroyed Betco’s ability to receive the benefits of the contract. Because Betco proffered no evidence at trial of consumer complaints, it cannot show that it was deprived of its contractual expectations. To the contrary, Betco received a company producing a successful line of products to the satisfaction of its customers.”

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On November 27. the U.S. Court of Appeals for the Ninth Circuit decided an important Clean Water Act (CWA) jurisdictional case, United States. The Ninth Circuit unanimously affirmed the defendant’s criminal convictions for knowingly discharging dredged or fill material from a point source into a “water of the United States” on private property without a permit. At issue was whether the Government proved that these waters were subject to the CWA in accordance with Justice Kennedy’s concurring opinion in Rapanos v. U.S., which set forth the “significant nexus” test for jurisdiction over certain wetlands.

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On November 21, the California Fifth District Court of Appeal issued its decision in Association of Irritated Residents v. Kern County Board of Supervisors, 2017 WL 5590096, a challenge to the County’s Environmental Impact Report (EIR) and approval for modifications at the Alon Bakersfield Refinery. Among other things, the Association of Irritated Residents (AIR) claimed that, since crude oil processing was shut down when work on the EIR began, the EIR should have considered the refinery’s inactive condition as the “baseline,” treating impacts of resuming typical operation as impacts of the new project. Rejecting AIR’s argument, the court held that, since refinery operations fluctuated over time, the use of data from operations in a representative prior year to identify the baseline level of activity was appropriate under the California Environmental Quality Act (CEQA). Continue reading

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On November 7, in U.S. v. American Commercial Lines, LLC, the U.S. Court of Appeals for the Fifth Circuit affirmed the District Court’s ruling that American Commercial Lines (ACL), the owner of a tug boat whose tug-boat-300x198contracted crew’s actions caused a massive oil spill in the Mississippi River, cannot rely on the Oil Pollution Act’s (OPA) third party defenses to avoid paying the U.S. Government another $20 million to reimburse the government’s response costs, and otherwise it was not entitled to limited liability because of the nature of the conduct of the operator’s employees.

There is no dispute that the July 23, 2008 spill was caused by [DRD Towing Company’s (DRD)] wrongful conduct and regulatory violations, committed in the course of carrying out its contractual obligation to transport ACL’s fuel-filled barge. Accordingly, the spill was caused by the gross negligence, willful misconduct or regulatory violations of ‘a person acting pursuant to a contractual relationship with’ ACL, and ACL is therefore not entitled to limited liability.

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On November 2, the U.S. Court of Appeals for the Ninth Circuit issued its long-awaited ruling in Ecological Rights Foundation v. Pacific Gas & Electric Company, which clarifies the Resource Conservation and Recovery Act’s (RCRA) Section 1006 anti-duplication provision that can play a key role in RCRA enforcement actions. The Ninth Circuit reversed the District Court’s ruling and remanded the matter to enable the District Court

“to consider EcoRights’ arguments with respect to the stormwater pathway that the relevant wastes are “solid wastes” and that PG&E’s actions present an imminent and substantial endangerment to health or the environment under RCRA.”

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On October 25, the U.S. Court of Appeals for the Ninth Circuit vacated the Dan Calver Wallen’s conviction for killing three grizzly bears in violation of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA). The case was remanded to the Magistrate Judge to give the defendant an opportunity to establish his defense. The case is U.S. v. Wallen.

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