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Weekly Cases Update Volume 41, Issue 9

Industrial Enterprises, Inc. v. Penn America Insurance Co.

41 ELR 20116
Nos. 09-2346, -2397 (4th Cir. , March 2011)

The Fourth Circuit reversed a lower court decision that an insurance company was obligated to pay the sums a landfill owner had incurred and was likely to incur in response to an EPA cleanup order. The insurance company issued the landfill owner a standard comprehensive general liability...

Duty to indemnify, Response costs

Association of Irritated Residents v. California Air Resources Board

41 ELR 20118
No. 09-509562 (Sup. Ct., March 2011)

A California court ordered the California Air Resources Board (CARB) to set aside its "functional equivalent document" that evaluates the environmental consequences of its climate change scoping plan and to enjoin implementation of the scoping plan until the agency complies with its...

Climate Change (generally), Environmental impact reports (EIRs)

United States v. Midwest Generation LLC

41 ELR 20123
No. 09-cv-5722 (N.D. Ill. , March 2011)

A district court dismissed claims that an energy company is responsible for PSD violations at five coal-fired power plants it owns in Illinois. The court previously granted the company's motion to dismiss in 2010, but the United States, Illinois, and several citizen groups filed an...

Preconstruction requirements, §165

General Category Scallop Fishermen v. Secretary, United States Department of Commerce

41 ELR 20114
No. 10-2341 (3d Cir., March 2011)

The Third Circuit upheld regulations issued by the National Marine Fishery Service (NMFS) implementing an amendment to the Atlantic Sea Scallop Fishery Management Plan that, among other things, sets a "control date" that effectively terminates the access rights of general scallop...

Development of FMPs

Village of Barrington, Illinois v. Surface Transportation Board

41 ELR 20113
No. 09-1002 (D.C. Cir., March 2011)

The D.C. Circuit upheld the Surface Transportation Board's imposition of environmental mitigation conditions in its approval of a "minor" railroad merger. The case involved the acquisition of a small "non-Class I" railroad by a larger "Class I" railroad company. Because the acquisition...

Railroads, Surface Transportation Board

Emerson Enterprises LLC v. Kenneth Crosby NY LLC

41 ELR 20122
No. 03-CV-6530 CJS (W.D.N.Y. Mar. , March 2011)

A district court held that the former owner of contaminated property may be held liable under tort and the New York Navigation Law for failing to report or prevent the spread of that contamination. There are triable issues of fact as to whether the owner “caused or contributed to the...

Negligence, New York Navigation Law

National Pork Producers Council v. United State Environmental Protection Agency

41 ELR 20115
No. 08-61093 (5th Cir., March 2011)

The Fifth Circuit vacated portions of EPA's 2008 concentrated animal feeding operations (CAFOs) rule. The rule requires CAFOs that propose to discharge to apply for an NPDES permit. But there must be an actual discharge into navigable waters to trigger the CWA's requirements. EPA,...

FWPCA powers and duties, Regulations

Del-Ray Battery Co. v. Douglas Battery Co.

41 ELR 20121
No. 10-40515 (5th Cir., March 2011)

The Fifth Circuit held that the Superfund Recycling Equity Act (SREA)—an amendment to CERCLA that exempts certain recyclers from liability for cleanup costs under CERCLA and awards costs and fees to any recyclers improperly sued for contribution under CERCLA—does not apply to state-law actions....

Solid Waste Disposal Act (SWDA), Superfund Recycling Equity Act

Los Angeles v. San Pedro Boat Works

41 ELR 20117
No. 08-56163 (9th Cir., March 2011)

The Ninth Circuit held that the holder of a revocable permit to use real property is not an "owner" of that real property for purposes of imposing liability under CERCLA for the cleanup of hazardous substances disposed on that property by others. Under California common law, the holder of a...

Owners and operators

Nu-West Mining Inc. v. United States

41 ELR 20120
No. 4:CV 09-431-BLW (D. Idaho, March 2011)

A district court held that the United States is an arranger and operator under CERCLA with regard to the waste disposal sites at four phosphate mines in the Caribou-Targhee National Forest. The United States conditioned its approval of mine plans on requiring the lessees to perform specific...

Arrangers, Forests, Owners and operators