Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

Monsanto operated chemical plants and disposed of waste, including PCBs, at sites within Sauget Area 1. In 1999, the government filed suit under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), to recover EPA costs in removing hazardous substances from Area 1, which follows Dead Creek through Sauget and Cahokia, Illinois. Monsanto (later Pharmacia) and Solutia, original defendants, filed a third-party complaint adding Rogers, which formerly operated trucking depots near Area 1, alleging that Rogers washed trucks after hauling hazardous substances, releasing substances into drainage systems that emptied into Dead Creek. The government added Rogers as a defendant, and other defendants brought cross-claims. In 2003, the court dismissed other claims against Rogers because it had been found not liable on the government’s claim under 42 U.S.C. 9607. In 2007, the Supreme Court decided “Atlantic Research,” establishing that potentially responsible parties that incur voluntary CERCLA cleanup costs may seek contribution from other potentially responsible parties. Four defendants filed an amended cross-claim; Rogers filed counterclaims, alleging that Monsanto had arranged for transport and disposal of hazardous substances without informing Rogers of the nature of the substances involved. The four settled, with Rogers paying $50,000 if it cooperated in efforts to recover the difference from its insurer. The settlement released all claims “brought or alleged, or which could have been brought or alleged” in the EPA action. The agreement contemplated that cleanup of Rogers’s depot would be paid for out of settlement proceeds. Rogers leased that land from ConocoPhillips, which filed a separate action against Rogers, seeking contribution for its voluntary cleanup costs. Rogers filed a third-party complaint against Pharmacia and Solutia. The Seventh Circuit affirmed the subsequent dismissal, finding the claim barred, by the settlement, and sanctions against Rogers. View "Rogers Cartage Co. v. Monsanto Co." on Justia Law

Visteon, a worldwide manufacturer headquartered in Michigan, sued National Union, from which it had purchased liability insurance between 2000 and 2002. The policy excluded liability resulting from pollution caused by Visteon, except liability arising from a “Completed Operations Hazard.” In 2001, the toxic solvent TCE that was used to clean machinery in Visteon’s Connersville, Indiana plant was discovered to have leaked into the soil and groundwater. Neighboring landowners sued Visteon. National Union has refused to indemnify or defend. Indiana does not enforce standard pollution-exclusion clauses. Michigan law does enforce the more general kind of pollution-exclusion clause found in the policy. The district court ruled that Michigan law governed and held that Visteon was not entitled to coverage under the Completed Operations Hazard clause. The Seventh Circuit affirmed. The risk materialized in Indiana, but that could not have been foreseen. The Indiana victims were compensated by Visteon, and it is unclear what benefit the state would have derived from reimbursement of Visteon’s costs by National Union.” The court rejected Visteon’s argument that its “work” was “completed” each time a contract to supply products made at the plant was performed and concluded that the exception did not apply. View "Visteon Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh" on Justia Law

Sierra Club challenged the Environmental Protection Agency’s decisions to redesignate three geographic areas—Milwaukee-Racine, Greater Chicago, and the Illinois portion of the St. Louis area—as having attained the 1997 National Ambient Air Quality Standards for ozone under the Clean Air Act, 42 U.S.C. 7401. The CAA mandates that before redesignating an area, EPA must confirm not just that ozone in an area dropped below a certain level, but also that the improvement in air quality resulted from “permanent and enforceable reductions in emissions.” EPA interprets that edict to require a finding that the requisite ozone drops are “reasonably attributable” to permanent and enforceable reductions. Sierra Club argued that the Agency acted arbitrarily and capriciously in making this causation finding in each of the redesignations. The Seventh Circuit denied a petition for review. EPA demonstrated that it “examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made, that the Agency’s decision was based on a consideration of the relevant factors, and that the Agency has made no clear error of judgment.” View "Sierra Club v. United States Envtl. Prot. Agency" on Justia Law

The Superfund Site encompasses the Lower Fox River and Green Bay, into which paper mills discharged PCBs until the 1970s, and is the subject of remedial efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606. The U.S. Environmental Protection Agency (EPA) and the Wisconsin Department of Natural Resources (WDNR) divided the Site into five “operable units” (OUs). In 2002, EPA and WDNR issued a record of decision (ROD), calling for dredging in OU1, but for monitored natural recovery in OU2, excepting limited dredging as part of the OU3 remedy. In 2003, EPA and WDNR issued another ROD, including dredging in OU3 and OU4. The OU5 remedy was limited to monitored natural recovery, except some dredging near the River's mouth. Potentially responsible parties (PRPs) agreed to perform the work in OU1. NCR and another PRP agreed to perform remedial design work for OU2–OU5. In 2007, the agencies amended the ROD for OU2–OU5, keeping dredging as the default approach but allowing for capping and sand covering. EPA ordered the PRPs to conduct the cleanup required by the amendment. NCR led the remedial efforts in OU2 and OU3 and conducted significant action in OU4. In 2008 NCR sought contribution from the other PRPs and declined further compliance with EPA’s 2007 order. The district court ordered NCR to complete work scheduled for 2012. The Seventh Circuit affirmed. The district court then upheld the agencies’ remedy selection and held that various OU1 PRPs were liable for downstream cleanup costs; the court entered a permanent injunction requiring the nonsettling PRPs to comply with EPA’s 2007 order. The Seventh Circuit reversed in part; the district court erred in its consideration of NCR’s divisibility defense and in its decision to enter a permanent injunction.View "United States v. P.H. Glatfelter Co." on Justia Law

The Superfund Site encompasses the Lower Fox River and Green Bay, into which paper mills discharged PCBs until the 1970s, and is the subject of remedial efforts under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9606. The U.S. Environmental Protection Agency and the Wisconsin Department of Natural Resources divided the Site into five “operable units” (OUs) and issued records of decision (RODs), calling for dredging in OU1, for monitored natural recovery in OU2; dredging in OU3 and OU4; and monitored natural recovery in OU5. Several potentially responsible parties (PRPs) agreed to perform the work in OU1. NCR and another PRP agreed to perform remedial design work for OU2–OU5. The agencies amended the ROD for OU2–OU5, keeping dredging as the default approach but allowing for capping and sand covering. EPA ordered the PRPs to conduct cleanup required by the amendment. NCR led the remedial efforts in OU2 and OU3 and conducted significant action in OU4. NCR sought contribution from the other PRPs and declined further compliance with EPA’s 2007 order. The district court ordered NCR to complete work scheduled for 2012. The Seventh Circuit affirmed. The district court then held that NCR was not entitled to contribution from paper mills that recycled its scraps and that those mills had meritorious counterclaims for recovery from NCR. The Seventh Circuit vacated the decision to hold NCR responsible for all of the response costs at OU2- 5 in contribution, but affirmed that NCR may proceed only under CERCLA section 113(f); that NCR is not liable as an arranger; that another PRP’s insurance settlement may not be offset against NCR’s contribution share; that NCR can be required to contribute for natural resource damages; and that state-law counterclaims are preempted. View "NCR Corp. v. WTM I Co." on Justia Law

The Clean Air Act, 42 U.S.C. 7401, allows each state to craft a state implementation plan to control the levels of certain air pollutants. Most state plans include “Prevention of Significant Deterioration” (PSD) programs, to prevent backsliding in “attainment areas” that meet or exceed the Act’s air quality standards, while allowing some new sources of pollution. A PSD program prevents designated sources from propelling the region’s aggregate emissions over specified limits. The Act establishes these limits by setting a baseline and a cap on pollutants above that baseline. The Act grandfathers sources operational before 1975: the baseline incorporates their emissions, with post-1975 sources counting against the allowance. Title V of the Act requires each covered stationary source to have an operating permit. In 2002 Georgia-Pacific asked Wisconsin to renew the Title V permit for its pre-1975 paper mill. Meanwhile, Georgia-Pacific modified a paper machine at the plant. The application was unopposed and the modification permit issued in February 2004. In 2011 Wisconsin reissued the plant’s operating permit. Objectors claim that modifications to any part of a plant require all emissions from the plant, including pre-1975 emissions incorporated into the baseline, to count against the state’s allowance, so that the whole plant might need to close for lack of available allowance. The U.S. EPA declined to object, concluding that Wisconsin’s approach is consonant with its understanding of the statute. The Seventh Circuit denied a petition for review. EPA presented a reasonable interpretation of an ambiguous statutory provision.View "Clean Water Action Council of NE WI, Inc. v. Envtl. Prot. Agency" on Justia Law

The linkage of the Mississippi River system to the Great Lakes and the effort to control weeds in southern aquatic farms by importing Asian carp, a voracious non-native fish, have combined to create a situation in which two species of carp have overwhelmed the Mississippi River and its tributaries and threaten to migrate into the Great Lakes. Plaintiffs, five states bordering the Great Lakes and an Indian tribe assert that the Asian carp either will soon invade, or perhaps already have invaded, the Great Lakes and are poised to inflict billions of dollars of damage on the ecosystem. Plaintiffs sued the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago, seeking a preliminary injunction that would require aggressive interim measures to maximize the chances of preventing the spread of the carp. The district court denied that motion; the Seventh Circuit affirmed. The district court then dismissed the case. The Seventh Circuit affirmed, finding that the plaintiffs did not allege facts showing that the Corps and the District are operating in a manner that is likely to allow the Asian carp to reach Lake Michigan. View "State of Michigan v. U.S. Army Corps of Eng'rs" on Justia Law

Until the early 1970s, CBS (formerly Westinghouse) manufactured electrical capacitors at a Bloomington plant, using insulating fluid containing PCBs, which are carcinogens to humans and wildlife. CBS deposited defective capacitors at landfills where PCBs escaped and entered the environment and discharged PCB-laden water to a local sewage treatment plant. After PCB contamination was discovered and traced to six sites, federal, state, and municipal governments filed a Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. 9600, enforcement action, which resulted in a 1985 consent decree requiring CBS to dig up all PCB-contaminated materials at the sites and destroy them in a high-temperature incinerator. The Indiana legislature blocked the plan. The parties agreed on modified remedies for three sites but were unable to agree on remedies for the Lemon and Neal Landfills and Bennett’s Dump, all on CERCLA’s National Priorities List. The parties negotiated in stages to allow clean up to begin before resolution of all issues and established three phases. Stage 1 required CBS to remove sediment from the landfill contamination hot spots, to clean sediment at Bennett’s Dump to “industrial standards,” and to install caps at all three sites. After CBS completed Stage 1 in 2000, tests showed that PCBs had migrated into the bedrock and were still being released from into water and sediment. Stages 2 and 3 address current and future contamination of groundwater and sediment. In 2009 the district court approved a consent amendment in the ongoing CERCLA action and rejected citizens’ claims with respect to phases two and three. The Seventh Circuit affirmed. Section 113(h)(4) prevents the courts from reviewing claims about stages in progress, but does not bar judicial review of claims about the first remedial stage that are not affected by continuing clean-up efforts.View "Frey v. Envtl. Prot. Agency" on Justia Law

Conrad, the “Banana Lady,” a self‐employed singer and dancer, performs in a giant banana costume. After performing a “singing telegram” at a credit union trade association event, she sued, charging infringements of intellectual property rights. Although Conrad claims that she stated that her performance was not to be recorded, except for “personal use,” photos were posted on websites. The district judge dismissed, finding most of the claims precluded by an earlier Wisconsin state court suit, also dismissed. The judge rejected a claim of copyright infringement, over which federal courts have exclusive jurisdiction, on the merits. The Seventh Circuit affirmed, first questioning Conrad’s copyright on the costume, because similar costumes are a common consumer product. The performance was not copyrightable, not being “fixed in any tangible medium of expression,” 17 U.S.C. 102(a). While she has the exclusive right to create or license reproductions of and derivative works from works that she has validly copyrighted, 17 U.S.C. 106(1), (2), it is unlikely that the photos and videos were derivative works. The Act forbids unauthorized recording of a musical performance, 17 U.S.C. 1101(a), and unauthorized display of copyrighted musical or choreographic work, section 106(5), but she did not cite either provision. The court noted Conrad’s “incessant filing of frivolous lawsuits” and suggested that the lower courts “consider enjoining her from filing further suits until she pays her litigation debts.” View "Conrad v. AM Cmty Credit Union," on Justia Law

In 1983 Bitler leased gas stations to Marathon. The Environmental Protection Agency adopted new regulations so that that underground petroleum tanks and pipes at the gas stations had to be removed, upgraded, or replaced, 40 C.F.R. 280.21(a). In 1992 the parties amended the leases to make Marathon “fully responsible for removing” the tanks and pipes, filling holes created by the removal, complying with all environmental laws, “leav[ing] the Premises in a condition reasonably useful for future commercial use,” and “replac[ing] any asphalt, concrete, or other surface, including landscaping.” Marathon agreed to return the Premises “as nearly as possible in the same condition as it was in prior to such remediation work,” and to be responsible “for any and all liability, losses, damages, costs and expenses,” and to continue paying rent. The properties can be restored as gas stations with above‐ground storage tanks, and may be suitable for other commercial outlets. After completion of the work Bitler sued Marathon, alleging breach of contract and “waste.” The Seventh Circuit vacated to waste regarding Michigan properties, with directions to double those damages. The court affirmed dismissal of some of the contract claims. It would not conform to the reasonable expectations of the parties to limit liability for waste or other misconduct by a tenant simply because a lease had to be extended for an indefinite period to allow a response to unforeseen changes. View "Bitler Inv. Venture II v. Marathon Petroleum Co. LP" on Justia Law