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Ellis v. Gallatin Steel Co.

ELR Citation: 34 ELR 20125
Nos. Nos. 02-6421 et al., (6th Cir., 10/26/2004)

The Sixth Circuit reversed and remanded injunctive relief awarded to landowners on their Clean Air Act (CAA) fugitive dust claims against neighboring steel companies because they failed to establish irreparable harm and failed to comply with the CAA's notice provisions. The lower court properly held that a consent decree between the U.S. Environmental Protection Agency (EPA) and the steel companies barred the landowners' CAA claims that were filed before and up to the date of the decree's entry. Likewise, the consent decree precluded the landowners' prevention of significant deterioration (PSD) claim against one company, and as for the second company, the landowners' PSD claim constituted a collateral challenge to the state agency's permitting decisions that should not be litigated in federal court. The lower court, however, erred in granting injunctive relief on the landowners' post-consent decree CAA claims. The landowners failed to notify EPA about the violations, never requested enforcement of the consent decree, and did not give the remedial requirements of the consent decree sufficient time to work. Moreover, these alleged post-consent decree violations constitute "new" claims that must separately comply with the notice provisions of CAA §304(b). Nevertheless, the lower court properly awarded of compensatory and punitive damages on the landowners' state nuisance claims. The lower court also properly granted prospective injunctive relief on the nuisance claims based on ample evidence of both the threat of continuing violations and existence of actual violations. Finally, the court upheld the decision not to award the landowners' necessary response costs under the Comprehensive Environmental Response, Compensation, and Liability Act since the costs were unrelated to any cleanup.