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Weekly Cases Update Volume 45, Issue 31

Florida Power Corp. v. FirstEnergy Corp.

45 ELR 20212
14-4126 (6th Cir., November 2015)

The Sixth Circuit held that two administrative orders on consent (AOCs) that a power company entered into with EPA in connection with two coal gasification plants owned and operated by its predecessor in interest nearly 70 years ago do not constitute "administrative settlements" under CERCLA....

Claims not barred, Settlements, §122

Treasure State Resource Industry Ass'n v. Environmental Protection Agency

45 ELR 20206
13-1263 (D.C. Cir., November 2015)

The D.C. Circuit upheld EPA's designation of Yellowstone County, Montana, and Wayne County, Michigan, as "nonattainment" under the sulfur dioxide (SO2) NAAQS. Two petitioners—an industry association and a steel company—challenged the designations, albeit for different reasons. The industry...

Designation as attainment/nonattainment

Little v. Louisville Gas & Electric Co.

45 ELR 20210
14-6499 (6th Cir., November 2015)

The Sixth Circuit held that the CAA does not preempt property owners' state common law tort claims against a nearby power plant for allowing ash, dust, and coal combustion by-products to blow onto their properties. The owners brought RCRA and CAA claims against the power plant in addition to...

Held not preempted, Tort Law

Merrick v. Diageo Americas Supply, Inc.

45 ELR 20209
14-6198 (6th Cir., November 2015)

The Sixth Circuit held that the CAA does not preempt property owners' state common-law tort claims against a whiskey distillery for excess ethanol emissions that allegedly caused "whiskey fungus" to grow on their properties. Below, the district court rejected the distillery's argument that the...

Held not preempted, Trespass

Bundorf v. Jewell

45 ELR 20205
2:13-cv-00616 (D. Nev., October 2015)

A district court, on motions for reconsideration and clarification of a prior remand order, vacated and remanded DOI's record of decision (ROD), EIS, and biological opinion (BiOp) concerning a large wind energy project in Nevada. In the prior remand court, the court held that DOI failed to fully...

Alternative Energy, Biological opinion, §7(b)

Shell Oil Co. v. United States

45 ELR 20211
06-141 (Fed. Cl., October 2015)

The Federal Claims Court held that the U.S. government may not engage in discovery about oil companies' insurance policies in an underlying case concerning cleanup costs stemming from the production of high-octane aviation gas (avgas) during World War II. The Federal Circuit...

Comprehensive Environmental Response Compensation and Liability Act (CERCLA), Insurance

MEMC Pasadena, Inc. v. Goodgames Industrial Solutions, LLC

45 ELR 20204
4:13-CV-599 (S.D. Tex., October 2015)

A district court held that a waste broker is liable as an arranger under CERCLA and the Texas Solid Waste Disposal Act (TSWDA) in connection with the disposal of waste at the U.S. Oil Recovery Superfund site in Texas. A manufacturing company hired the broker to help facilitate the movement of...

Arrangers

Graham v. Consolidated Coal Co.

45 ELR 20207
1:13CV00011 (W.D. Va., October 2015)

A district court dismissed property owners' lawsuit against a mining company for unlawfully diverting excess wastewater into underground mine voids located beneath their land. Although the owners filed suit after the statute-of-limitations period expired, the owners argued that CERCLA's...

Comprehensive Environmental Response Compensation and Liability Act (CERCLA), Mining

Ward Gulfport Properties, L.P. v. Mississippi State Highway Comm'n

45 ELR 20208
2014-CA-01001 (Miss., October 2015)

The Mississippi Supreme Court reversed and remanded a lower court decision that the state's transportation agency did not effect a categorical or regulatory taking when it pledged approximately 1,300 acres of a developer's property for wetlands mitigation as part of its application for a dredge...

Dredge and fill permits, Taking of private property