Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

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

GenCorp owned a vinyl-manufacturing facility, including hazardous waste management units (RCRA units), which reclaimed solvent waste. Under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, GenCorp was obligated to obtain permits for the units. GenCorp had not received all of the required permits when it agreed to sell the facility. The agreement specified GenCorp’s retained liabilities, and contained a provision requiring each party to indemnify and defend against their retained liabilities. Textileather became the owner in 1990 and decided to discontinue use of the RCRA units. Textileather began the closure process required by Ohio Administrative Code 3745-66; the Ohio Environmental Protection Agency (OEPA) issued several Notices of Deficiency. Textileather challenged the OEPA’s 2001 closure plan and asserted that GenCorp was obligated to indemnify and defend. The district court ruled in favor of GenCorp, holding that, under the agreement, OEPA did not constitute a “third party” and Textileather’s RCRA closure proceedings did not constitute a “claim or action.” The Sixth Circuit reversed in part and directed the district court to enter judgment for Textileather on the legal question of whether the retained liabilities section of the agreement applies. The court affirmed that GenCorp retained only CERCLA claims covered by certain sections. View "Textileather Corp. v. GenCorp Inc." on Justia Law

Summit’s natural gas sweetening plant in Michigan makes gas usable by removing hydrogen sulfide. Summit owns all of the production wells and subsurface pipelines that connect wells to the plant. The wells are located over a 43-square-mile area, from 500 feet to eight miles from the plant. Summit does not own property between the wells or property between the wells and the plant. Flares burn off gas waste to relieve pressure on gas collection equipment. The closest flare is about one half-mile from the plant, others are over one mile away. The plant and most of the wells and flares are located on a tribal reservation. All emit sulfur dioxides and nitrous oxides, air pollutants regulated under the Clean Air Act, 42 U.S.C. 7401-7671q. The plant alone has potential to emit just under 100 tons of these pollutants per year. Each flare and well has potential to emit lower amounts. The EPA determined that the plant, flares, and wells constituted a single stationary source under the CAA. The Sixth Circuit vacated and remanded for determination of whether the plant and wells are sufficiently physically proximate to be considered “adjacent” within the ordinary meaning of that requirement. Interpreting the requirement in terms of mere functional relatedness was unreasonable. View "Summit Petroleum Corp. v. U.S. Envtl. Prot. Agency" on Justia Law

Ohio enacted legislation under which it no longer will apply the "best available technology" standard to small emitters as part of its state implementation plan (SIP) for National Ambient Air Quality Standards for certain types of air pollutants (Clean Air Act, 42 U.S.C. 7409). Act. The U.S. EPA did not approve a change to the SIP, but has taken no action to require the state to enforce the standard. Environmentalists sued under the Clean Air Act’s citizen-suit provision. The district court entered an injunction expressly ordering the state to administer the federal rule. The Sixth Circuit reversed and remanded for dismissal, concluding that intervening Supreme Court precedent and the text and structure of the Clean Air Act itself indicate that the citizen-suit provision does not authorize this lawsuit, but authorizes suit against the federal EPA.

In 2001, the Conservancy sold a 100.10 acre farm in Garrard County, Kentucky to the Sims for $60,084, in addition to a $244,939 charitable pledge from the Sims to the Conservancy. The property appraised at $260,400 without the easement at issue, which requires that the land "be retained forever substantially undisturbed in its natural condition and to prevent any use . . . that will significantly impair or interfere with the Conservation Values of the Protected Property." The Conservancy received an annual right to enter and inspect the property. In January 2005, the Conservancy inspected and documented several violations that concerned excavating and filling a sinkhole. The Sims corrected several other violations. The district court granted summary judgment to the Conservancy, concluding that, although the easement allowed some changes to the topography in conjunction with authorized activities, like plowing for commercial agriculture, the easement specifically prohibited the substantial alteration of filling in a sinkhole with an estimated 6,269 cubic yards of fill. The court awarded the Conservancy $99,796.41 in attorneys’ fees and expenses. The Sixth Circuit affirmed.

OneBeacon and AMICO were insurers of the B.F. Goodrich and, among others, were liable for environmental cleanup at the Goodrich plant in Calvert City, Kentucky. AMICO settled with Goodrich, but OneBeacon’s predecessor went to trial. A state court jury found for Goodrich, and OneBeacon was ordered to pay $42 million in compensatory damages and $12 million in attorney fees. The state court also denied OneBeacon's request for settlement credits to reflect amounts paid by other insurers, such as AMICO, through settlements with Goodrich. OneBeacon sought equitable contribution; AMICO removed to federal court. The district court granted AMICO summary judgment. The Sixth Circuit affirmed. Ohio policy favoring settlements provides that a settled policy is exhausted for purposes of equitable contribution; the court declined to address whether Ohio law permits interclass contribution actions or whether the jury finding of bad faith bars equitable relief.

In 1979, plaintiff bought land from the Michigan State Transportation Commission. A decade later, he sued the Department of Transportation under the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, claimed that there was contamination on the site. After discovery, the parties settled. The district court entered a consent decree in 1991 that required the Department to remediate the property by March 31, 1995. If by then the Department failed to make a good-faith effort to remediate, the decree required payment of $2,000 per month until remediation was complete. The Department failed to remediate or to pay the liquidated damages. On a 2009 motion to enforce the decree, the court held that the Department had waived its sovereign immunity and that a 10-year statute of limitations barred enforcement of the remediation obligation, but that each of the missed $2,000 payments triggered its own 10-year limitations period. The Sixth Circuit vacated, holding that the court should have relied on the doctrine of laches rather than the limitations period because the consent decree amounted to a remedy in equity. The waiver of immunity remained effective.

African-Americans residing near a contaminated landfill claim that municipalities knew that well water was contaminated, warned Caucasian families and provided alternate sources of water, but did not warn African-Americans. In their suit under the Equal Protection Clause, 42 U.S.C. 1983, Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and state laws, a magistrate compelled testimony by plaintiffs' former counsel; the city asserted that, if plaintiffs consulted the attorney in 2000, the action is barred by the one-year statute of limitations. During a deposition, the attorney refused to answer some questions. The court granted a motion to compel. The Sixth Circuit dismissed an appeal for lack of jurisdiction. Plaintiffs were not appealing a final judgment and did not qualify for interlocutory review under the Perlman exception or the collateral order doctrine. Immediate review is appropriate if an order conclusively determines a disputed issue separate from the merits that is too important to be denied review and will be effectively unreviewable on appeal from a final judgment. Privilege is important and the attorney is a disinterested non-party, so the contempt-citation avenue of review is practically foreclosed, but plaintiffs, asserting the privilege, ultimately can avail themselves of a post-judgment appeal that suffices to protect the rights of the litigants and preserve the vitality of attorney-client privilege.

The Georgia animal-rendering operation was investigated under the Clean Water Act. Felony charges were dismissed and the company entered a plea of guilty to misdemeanor negligent discharge of waste water. The EPA subsequently received FOIA requests from outside parties, requesting documents it had obtained from the company. The EPA determined that documents obtained pursuant to search warrant or grand jury subpoena were exempt from disclosure, that other material had to be reviewed to determine whether exemptions applied, and that documents obtained from court dockets and state agencies are publicly available and not exempt from disclosure. The company sought a temporary restraining order, claiming that it was entitled to review the files before release of any information, and that confidential business information contained in the publicly available documents is exempt from disclosure. After three years, the district court ruled in favor of the company and awarded $116,038 in attorney fees. The Sixth Circuit reversed because the district court did not make a finding, and the record would not support a finding, of bad faith, necessary to support the award under the Equal Access to Justice Act, 28 U.S.C. 2412.

An underground pipeline leaked gasoline five times between 1948 and 1962. After tests revealed benzene in wells, not including the plaintiffs' well, the company conducted remediation and monitoring and purchased the property now owned by the plaintiffs. The plaintiffs bought the property and a low level of benzene was detected in the well in 1996. The company installed a new well, which tested free of benzene 22 times between 1997 and 2002. Benzene was detected at a very low level in 2003 and the plaintiffs moved in 2005. In 2002 one of the plaintiffs was diagnosed, at age 48, with non-Hodgkins lymphoma. The district court entered summary judgment for the company. The Sixth Circuit affirmed. The district court acted within its discretion in excluding, as unreliable under the Daubert standard, an expert's specific-causation opinion. The expert did not ascertain the level of plaintiff's exposure and the level of benzene in the well never exceeded the EPA's standard; the expert did not rule out other possible causes, such as the plaintiff's smoking.