Highlights from the July/August 2016 Issue of the EPA Administrative Law Reporter

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The most noteworthy decisions this month are the following:

  • In WildEarth Guardians v. EPA, Case No. 14-1145 (D.C. Cir. July 29, 2016), in a case where the D.C. Circuit held that particulate matter 2.5 (PM-2.5) is subject to a different and stricter statutory framework than the EPA had originally applied, and the agency accordingly adjusted certain statutory deadlines by rule so that states would not miss deadlines about which they could not have known and which did not apply under the original framework, the D.C. Circuit dismissed as moot an environmental group’s petition challenging this rule as applied to a 1997 PM-2.5 standard, and denied this petition on the merits as applied to a 2006 PM-2.5 standard, holding that
  • In Ohio Valley Environmental Coalition, Inc. v. U.S. Army Corps of Engineers, No. 14-2129 (4th Cir. July 8, 2016), Judge Duncan, writing for the Fourth Circuit Court of Appeals, affirmed the district court’s grant of summary judgment in favor of the Army Corps of Engineers in a challenge to a § 404 permit. Plaintiffs claimed that the Corps’ environmental review violated both NEPA and the Clean Water Act (CWA) by failing to consider the health-related impacts of surface coal mining. Consistent with its own precedent, the Fourth Circuit held that the Corps’ review was properly limited to the effects of the permitted discharge activity alone. The proper agency to consider overall public health implications of surface coal mining was the West Virginia Department of Environmental Protection (WVDEP), which had exclusive jurisdiction to issue an operating permit under the Surface Mine Control and Reclamation Act (SMCRA).
  • In State of Texas v. EPA, No. 16-60118 (5th Cir. July 15, 2016), in a case in which the EPA disapproved parts of the state implementation plans of Texas and Oklahoma to reduce regional haze and imposed a federal implementation plan, the states, along with power companies, labor unions and others were able to establish a strong likelihood of showing EPA exceeded its statutory authority under the Clean Air Act and the Regional Haze Rule. Granting the petitioners’ motion for a stay pending review of the EPA’s Final Rule, the Fifth Circuit ruled that the petitioners had showed a strong likelihood of success in establishing that EPA acted arbitrarily and capriciously, that the petitioning power companies, labor unions, and others had shown a threat of irreparable injury without a stay while EPA would not be injured, and that the balance of public interests weighed in favor of a stay.
  • In Pakootas v. Teck Cominco Metals, Ltd., No. 15-35228, D.C. No. 2:04-cv-00256-LRS (9th Cir. July 27, 2016), in a case of first impression, a three-judge panel of the United States Court of Appeals for the Ninth Circuit unanimously held that hazardous substances contained in airborne emissions do not constitute a “disposal” within the meaning of CERCLA even after they come to rest on or in the land or water. Reversing the district court’s holding on that issue, the appellate court determined that the owner-operator of a lead smelter was not liable as an “arranger” under CERCLA for the disposal of hazardous substances emitted from its smokestack. Though the court described plaintiffs’ interpretation of CERCLA as plausible under CERCLA’s text and structure, and consistent with the ordinary dictionary definition of “disposal,” it found the reasoning of two previous decisions within the circuit to be persuasive and on-point.
  • In Murray Energy Corporation v. McCarthy, No. 5:14-CV-39 (N.D. W.V. Jul. 20, 2016), Judge Bailey, of the federal district court for the Northern District of West Virginia, granted, in part, a motion by coal industry leaders to compel production of a document held by EPA that is relevant to a citizen suit challenge alleging that EPA did not sufficiently analyze the job costs of new power plant regulations. Applying a FOIA analysis by analogy, the court held that most of the documents requested by plaintiffs were “predecisional” and “deliberative” in nature, and thus were properly excluded from discovery by the agency under the deliberative process privilege. The court, however, did order production of one key document in its entirety, Guidelines for Preparing Economic Analyses.” Despite the fact that the document met the requirements for the privilege, its importance to the plaintiffs and its relevance to the litigation were sufficient to overcome the privilege under the balancing test set forth in Scott v. PPG Indus, Inc. Following decisions by courts of appeal in other circuits, the court held that the deliberative process privilege is not waivable even if documents bearing on the same subject matter have been made publicly available.
  • In Concerned Pastors for Social Action v. Khouri, No. 16-10277 (E.D. Mich. July 7, 2016), Judge Lawson, of the federal district court for the Eastern District of Michigan, concluded that a suit by residents of Flint against city and state officials involved in the local drinking water crisis would not interfere with EPA’s ongoing remediation. The court therefore denied defendants’ motion to dismiss, and will allow the suit to go forward. In reaching its decision, the court determined that:
  • In AmeriPride Services, Inc. v. Valley Industrial Services, Inc., No. 2:00-cv-MCE-EFB (E.D. Cal. July 13, 2016), the federal district court for the Eastern District of California granted, in large part, a previously non-settling defendant’s motion for summary judgment. In a wide-ranging opinion addressing a number of key CERCLA issues, the court held as follows:
  • In Mendoza v. Monsanto, No. 1:16-cv-00406-DAD-SMS (E.D. Cal. July 7, 2016), Judge Drozd of the federal district court for the Eastern District of California ruled that a plaintiff’s state common law claims were not preempted under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Plaintiff brought claims against defendant alleging that she developed non-Hodgkin lymphoma as a result of her use of defendant’s Roundup product, and that defendant failed to warn her. Defendant moved to dismiss arguing that plaintiff’s claims were preempted under FIFRA because they amounted to state rules that were “in addition to or different from” those required by FIFRA. Defendant sought judicial notice of six documents issued by EPA that it argued demonstrated that EPA deemed Roundup to not be carcinogenic. However, the Court held that the documents were not relevant and were not entitled to judicial notice. Accordingly, the plaintiff was allowed to proceed on her claims. Moreover, the court held that claims based on an alleged design defect were not barred by comments j and k to the Restatement (Second) of Torts § 402A.

 

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