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SPECIALTY LAW - July, 2005 Environmental Law

Cases summarized in the July, 2005 issue of
Specialty Law Digest: Environmental Law.

GENERAL INDEX


air pollution -- EPA did not act arbitrarily, capriciously, or contrary to law when it granted Nevada's request to divide area 61, and existence and operation of Barrick Goldstrike Mine did not preclude division. Great Basin Mine Watch v. United States Environmental Prot. Agency (C.A. 9, Nev. 2005), 401 F.3d 1094

asbestos -- trial court's decision that contractors violated work-practice standards for asbestos set out in Clean Air Act would be affirmed. United States v. Rubenstein (C.A. 2, N.Y. 2005), No. 03-1721

attorney fees -- after property owner was found to be in violation of city's refuse ordinance, trial court properly rejected city's request for attorney fees under section 1.13 of its municipal code. Village of Glenview v. Zwick (Ill.App. 2005), No. 1-03-2446

building permits -- neither statute nor caselaw supported builder's argument that application for building permit would remain vested to date original application was filed even if it was modified by different designs and versions over ensuing years before issuance was sought. Palmer Coking Coal Co. v. City of Newcastle (Wash.App. 2005), No. 52497-6-I

cable television -- resident's action filed under California Environmental Quality Act challenging installation of components of cable television, internet and telephone system referred to as open video system was properly dismissed as untimely. Kneisel v. City of Pasadena (Cal.App. 2005), No. B172049

California Environmental Quality Act -- resident's action filed under CEQA challenging installation of components of cable television, internet and telephone system referred to as open video system was properly dismissed as untimely. Kneisel v. City of Pasadena (Cal.App. 2005), No. B172049

-- trial court properly denied petitions filed by Sierra Club in which it alleged that irrigation districts violated CEQA by using negative declarations instead of environmental impact reports. Sierra Club v. West Side Irrigation Dist. (Cal.App. 2005), No. C044989

citizens groups -- citizens group's failure to appear at hearing at which property owners' conditional use applications and preliminary subdivision plan were approved precluded it from later challenging those approvals. Middletown Township Land Conservancy, Inc. v. Upper Providence Township Council (Pa.Cmwlth. 2005), No. 1579 C.D. 2004

-- trial court properly dismissed for lack of jurisdiction claim by group of citizens seeking declaratory and injunctive relief to compel United States Forest Service to remove or treat timber in Malheur National Forest. Grant Sch. Dist. No. 3 v. Dombeck (C.A. 9, Ore. 2005), No. 00-35385

-- when environmental review process under Minnesota Environmental Policy Act was initiated on project by citizens' petition, 60-day deadline for agency action under Minn. Stat. Section 15.99, subd. 2, was tolled by operation of that statute until completion of process. Allen v. City of Mendota Heights (Minn.App. 2005), No. A04-1278

civil rights -- individual could not enforce Section 332(c)(7)'s limitations on local zoning authority through Section 1983 action. City of Rancho Palos Verdes, California v. Abrams (U.S.S.Ct.Cal. 2005), 125 S.Ct. 1453

Clean Air Act -- trial court's decision that contractors violated work-practice standards for asbestos set out in Clean Air Act would be affirmed. United States v. Rubenstein (C.A. 2, N.Y. 2005), No. 03-1721

clean up actions -- plaintiff who sought reimbursement from fund could pursue negligence and breach of contract claims against licensed site professional who was hired by plaintiff and allegedly failed timely to complete tasks in application process for reimbursement. Williams Auto Electric Svcs., Inc. v. Hebert (Mass.App. 2005), 63 Mass.App.Ct. 182

contaminated soil -- releases signed by real estate developer which held oil exploration company harmless for transporting soil from its oil field to developer's commercial property were enforceable. Santa Maria Enterprises, Inc. v. Texaco Exploration & Production, Inc. (Cal.App. 2005), No. B161737

contracts -- plaintiff who sought reimbursement from fund could pursue negligence and breach of contract claims against licensed site professional who was hired by plaintiff and allegedly failed timely to complete tasks in application process for reimbursement. Williams Auto Electric Svcs., Inc. v. Hebert (Mass.App. 2005), 63 Mass.App.Ct. 182

-- release would apply to any liability on lessee's part in connection with petroleum spill at issue in this action. State v. Robin Operating Corp. (N.Y.App.Div. 2005), No. 96602

crimes -- trial court's decision that contractors violated work-practice standards for asbestos set out in Clean Air Act would be affirmed. United States v. Rubenstein (C.A. 2, N.Y. 2005), No. 03-1721

damages -- remand ordered where business' expert considered abandoned processed soil product in valuation of business at approximately $1.6 million, and where business had failed to cite evidentiary support for difference between that amount and jury's award of $2,528,942. City of Atlanta v. Landmark Environmental Industries, Inc. (Ga.App. 2005), No. A04A1836

deer farms -- no indication in record that Town Board gave notice to adjoining property owners to enable them to be heard on property owner's request for area variance for deer farm. Fleck v. Town of Colden (N.Y.App.Div. 2005), CA 04-02065

developments -- citizens group's failure to appear at hearing at which property owners' conditional use applications and preliminary subdivision plan were approved precluded it from later challenging those approvals. Middletown Township Land Conservancy, Inc. v. Upper Providence Township Council (Pa.Cmwlth. 2005), No. 1579 C.D. 2004

-- culverted portion of Thornton Creek crossing builder's property was Class Two stream. Crawford v. City of Shoreline (Wash.App. 2005), No. 51849-6-I

-- Franklin Township's Board of Supervisors erred in denying Preliminary Subdivision and Land Development Plan submitted by developer. Builders v. Franklin Township (Pa.Cmwlth. 2005), No. 2393 C.D. 2004

-- releases signed by real estate developer which held oil exploration company harmless for transporting soil from its oil field to developer's commercial property were enforceable. Santa Maria Enterprises, Inc. v. Texaco Exploration & Production, Inc. (Cal.App. 2005), No. B161737

-- there was no merit to developer's contention that actions of city and California Department of Fish and Game in delaying certification of EIR and imposing requirement of specific plan took his property and violated his constitutional rights. Munari v. City of El Paso Robles (Cal.App. 2005), No. B167996

environmental impact reports -- there was no merit to developer's contention that actions of city and California Department of Fish and Game in delaying certification of EIR and imposing requirement of specific plan took his property and violated his constitutional rights. Munari v. City of El Paso Robles (Cal.App. 2005), No. B167996

-- trial court properly denied petitions filed by Sierra Club in which it alleged that irrigation districts violated California Environmental Quality Act by using negative declarations instead of EIR. Sierra Club v. West Side Irrigation Dist. (Cal.App. 2005), No. C044989

environmental spills -- release would apply to any liability on lessee's part in connection with petroleum spill at issue in this action. State v. Robin Operating Corp. (N.Y.App.Div. 2005), No. 96602

fish -- in connection with approval of surface water rights, Pollution Control Hearings Board did not err in finding that issue of fact existed regarding harm to fish. Kennewick Pub. Hosp. Dist. v. Pollution Control Hearings Bd. (Wash.App. 2005), No. 22741-3-III

forests -- trial court properly dismissed for lack of jurisdiction claim by group of citizens seeking declaratory and injunctive relief to compel United States Forest Service to remove or treat timber in Malheur National Forest. Grant Sch. Dist. No. 3 v. Dombeck (C.A. 9, Ore. 2005), No. 00-35385

gravel pits -- finding that collateral estoppel applied, trial court properly reversed decision of County Board of Adjustment allowing mine to expand its 7-acre gravel pit into 30.5-acre surface excavation mine. Satsop Valley Homeowners Ass'n, Inc. v. Northwest Rock, Inc. (Wash.App. 2005), No. 30887-8-II

groundwater -- known loss doctrine precluded coverage for chemical company under its excess liability policies for losses resulting from liability for groundwater contamination. State v. Hydrite Chemical Co. (Wis.App. 2005), No. 00-3344

hazardous wastes -- entity could be subject to arranger liability under Alaska Statute section 46.03.822(a)(4) if it manufactured, sold, and installed useful product that, when used as designed, directed hazardous substance into city sewer system. Berg v. Popham (Alas. 2005), No. S-10815

historic landmarks -- issue of whether certificate of appropriateness was required prior to demolition of building located within historic district was moot where permit had been issued and building had been demolished. Gruebel v. City of Nacogdoches (Tex.App. 2005), No. 12-04-00176-CV

insurance -- known loss doctrine precluded coverage for chemical company under its excess liability policies for losses resulting from liability for groundwater contamination. State v. Hydrite Chemical Co. (Wis.App. 2005), No. 00-3344

internet system -- resident's action filed under California Environmental Quality Act challenging installation of components of cable television, internet and telephone system referred to as open video system was properly dismissed as untimely. Kneisel v. City of Pasadena (Cal.App. 2005), No. B172049

land use -- order of trial court was affirmed, in part, to extent that it concluded that sufficient developable tract area existed. Erinc v. Board of Supervisors of Elk Township (Pa.Cmwlth. 2005), No. 1613 C.D. 2004

landfills -- Illinois Pollution Control Board properly found that landfill operator had failed to give proper notice of its filing for approval to one out of 76 potentially affected property owners. Waste Management of Illinois, Inc. v. Illinois Pollution Control Bd. (Ill.App. 2005), No. 3-03-0924

lessors -- release would apply to any liability on lessee's part in connection with petroleum spill at issue in this action. State v. Robin Operating Corp. (N.Y.App.Div. 2005), No. 96602

limitations -- resident's action filed under California Environmental Quality Act challenging installation of components of cable television, internet and telephone system referred to as open video system was properly dismissed as untimely. Kneisel v. City of Pasadena (Cal.App. 2005), No. B172049

-- when environmental review process under Minnesota Environmental Policy Act was initiated on project by citizens' petition, 60-day deadline for agency action under Minn. Stat. Section 15.99, subd. 2, was tolled by operation of that statute until completion of process. Allen v. City of Mendota Heights (Minn.App. 2005), No. A04-1278

mines -- EPA did not act arbitrarily, capriciously, or contrary to law when it granted Nevada's request to divide area 61, and existence and operation of Barrick Goldstrike Mine did not preclude division. Great Basin Mine Watch v. United States Environmental Prot. Agency (C.A. 9, Nev. 2005), 401 F.3d 1094

-- finding that collateral estoppel applied, trial court properly reversed decision of County Board of Adjustment allowing mine to expand its 7-acre gravel pit into 30.5-acre surface excavation mine. Satsop Valley Homeowners Ass'n, Inc. v. Northwest Rock, Inc. (Wash.App. 2005), No. 30887-8-II

-- recreational beach user lacked standing to oppose issuance of critical area permit authorizing Association to excavate 25,000 cubic yards of sand each month from intertidal beach of Isle of Palms. Smiley v. S.C. Dep't of Health & Environmental Control (S.C.App. 2005), No. 2005-UP-160

-- trial court was presented with two divergent views regarding impact of any mining activity and properly rejected contention that adjacent mining activity correlated to any adverse impact to owners' property. Cox v. Musson Sand & Stone, Inc. (Mich.App. 2005), No. 251936

municipalities -- after property owner was found to be in violation of city's refuse ordinance, trial court properly rejected city's request for attorney fees under section 1.13 of its municipal code. Village of Glenview v. Zwick (Ill.App. 2005), No. 1-03-2446

negligence -- plaintiff who sought reimbursement from fund could pursue negligence and breach of contract claims against licensed site professional who was hired by plaintiff and allegedly failed timely to complete tasks in application process for reimbursement. Williams Auto Electric Svcs., Inc. v. Hebert (Mass.App. 2005), 63 Mass.App.Ct. 182

oil exploration -- releases signed by real estate developer which held oil exploration company harmless for transporting soil from its oil field to developer's commercial property were enforceable. Santa Maria Enterprises, Inc. v. Texaco Exploration & Production, Inc. (Cal.App. 2005), No. B161737

permits -- neither statute nor caselaw supported builder's argument that application for building permit would remain vested to date original application was filed even if it was modified by different designs and versions over ensuing years before issuance was sought. Palmer Coking Coal Co. v. City of Newcastle (Wash.App. 2005), No. 52497-6-I

-- recreational beach user lacked standing to oppose issuance of critical area permit authorizing Association to excavate 25,000 cubic yards of sand each month from intertidal beach of Isle of Palms. Smiley v. S.C. Dep't of Health & Environmental Control (S.C.App. 2005), No. 2005-UP-160

petroleum spills -- release would apply to any liability on lessee's part in connection with petroleum spill at issue in this action. State v. Robin Operating Corp. (N.Y.App.Div. 2005), No. 96602

pollution insurance -- known loss doctrine precluded coverage for chemical company under its excess liability policies for losses resulting from liability for groundwater contamination. State v. Hydrite Chemical Co. (Wis.App. 2005), No. 00-3344

property subdivision -- determination of respondent Town of Malta Planning Board to issue negative declaration was not arbitrary and capricious and did not constitute abuse of discretion. Ellsworth v. Town of Malta (N.Y.App.Div. 2005), No. 96627

quarries -- genuine issues of material fact existed regarding Zoning Hearing Board's actions in regulating quarry. Lonzetta Trucking & Excavating Co. v. Schan (C.A. 3, Pa. 2005), No. 04-2758

-- there was ample evidence from which zoning board could find that proposed quarry would be detrimental to public health or safety. Wagner v. Miami County Bd. of Zoning Appeal (Ohio App. 2005), 2005 -Ohio- 1377

refuse citations -- after property owner was found to be in violation of city's refuse ordinance, trial court properly rejected city's request for attorney fees under section 1.13 of its municipal code. Village of Glenview v. Zwick (Ill.App. 2005), No. 1-03-2446

releases -- release would apply to any liability on lessee's part in connection with petroleum spill at issue in this action. State v. Robin Operating Corp. (N.Y.App.Div. 2005), No. 96602

-- releases signed by real estate developer which held oil exploration company harmless for transporting soil from its oil field to developer's commercial property were enforceable. Santa Maria Enterprises, Inc. v. Texaco Exploration & Production, Inc. (Cal.App. 2005), No. B161737

rivers -- in connection with approval of surface water rights, Pollution Control Hearings Board did not err in finding that issue of fact existed regarding harm to fish. Kennewick Pub. Hosp. Dist. v. Pollution Control Hearings Bd. (Wash.App. 2005), No. 22741-3-III

sand dunes -- recreational beach user lacked standing to oppose issuance of critical area permit authorizing Association to excavate 25,000 cubic yards of sand each month from intertidal beach of Isle of Palms. Smiley v. S.C. Dep't of Health & Environmental Control (S.C.App. 2005), No. 2005-UP-160

sewage -- remand ordered where business' expert considered abandoned processed soil product in valuation of business at approximately $1.6 million, and where business had failed to cite evidentiary support for difference between that amount and jury's award of $2,528,942. City of Atlanta v. Landmark Environmental Industries, Inc. (Ga.App. 2005), No. A04A1836

sewer lines -- remand ordered where business' expert considered abandoned processed soil product in valuation of business at approximately $1.6 million, and where business had failed to cite evidentiary support for difference between that amount and jury's award of $2,528,942. City of Atlanta v. Landmark Environmental Industries, Inc. (Ga.App. 2005), No. A04A1836

solid waste -- solid waste service provider possessed sufficient reliability, expertise, and competence to operate solid waste transfer station. Waste Management of Ohio, Inc. v. Cincinnati Bd. of Health (Ohio App. 2005), 159 Ohio App.3d 806

standing -- citizens group's failure to appear at hearing at which property owners' conditional use applications and preliminary subdivision plan were approved precluded it from later challenging those approvals. Middletown Township Land Conservancy, Inc. v. Upper Providence Township Council (Pa.Cmwlth. 2005), No. 1579 C.D. 2004

-- recreational beach user lacked standing to oppose issuance of critical area permit authorizing Association to excavate 25,000 cubic yards of sand each month from intertidal beach of Isle of Palms. Smiley v. S.C. Dep't of Health & Environmental Control (S.C.App. 2005), No. 2005-UP-160

streams -- culverted portion of Thornton Creek crossing builder's property was Class Two stream. Crawford v. City of Shoreline (Wash.App. 2005), No. 51849-6-I

subdivisions -- citizens group's failure to appear at hearing at which property owners' conditional use applications and preliminary subdivision plan were approved precluded it from later challenging those approvals. Middletown Township Land Conservancy, Inc. v. Upper Providence Township Council (Pa.Cmwlth. 2005), No. 1579 C.D. 2004

taking -- there was no merit to developer's contention that actions of city and California Department of Fish and Game in delaying certification of EIR and imposing requirement of specific plan took his property and violated his constitutional rights. Munari v. City of El Paso Robles (Cal.App. 2005), No. B167996

telecommunication antennae -- individual could not enforce Section 332(c)(7)'s limitations on local zoning authority through Section 1983 action. City of Rancho Palos Verdes, California v. Abrams (U.S.S.Ct.Cal. 2005), 125 S.Ct. 1453

telephone system -- resident's action filed under California Environmental Quality Act challenging installation of components of cable television, internet and telephone system referred to as open video system was properly dismissed as untimely. Kneisel v. City of Pasadena (Cal.App. 2005), No. B172049

United States Forest Service -- trial court properly dismissed for lack of jurisdiction claim by group of citizens seeking declaratory and injunctive relief to compel United States Forest Service to remove or treat timber in Malheur National Forest. Grant Sch. Dist. No. 3 v. Dombeck (C.A. 9, Ore. 2005), No. 00-35385

waste haulers -- trial court properly held that provisions of Sections 82-8.1, 82-11, and 82-12 of Code authorizing licensing and inspection of waste hauling trucks were invalid. Pennsylvania Independent Waste Haulers Ass'n v. Township of Lower Merion (Pa.Cmwlth. 2005), No. 1298 C.D. 2004

waster pollution -- known loss doctrine precluded coverage for chemical company under its excess liability policies for losses resulting from liability for groundwater contamination. State v. Hydrite Chemical Co. (Wis.App. 2005), No. 00-3344

water -- in connection with approval of surface water rights, Pollution Control Hearings Board did not err in finding that issue of fact existed regarding harm to fish. Kennewick Pub. Hosp. Dist. v. Pollution Control Hearings Bd. (Wash.App. 2005), No. 22741-3-III

-- trial court properly denied petitions filed by Sierra Club in which it alleged that irrigation districts violated California Environmental Quality Act by using negative declarations instead of environmental impact reports. Sierra Club v. West Side Irrigation Dist. (Cal.App. 2005), No. C044989

water pollution -- entity could be subject to arranger liability under Alaska Statute section 46.03.822(a)(4) if it manufactured, sold, and installed useful product that, when used as designed, directed hazardous substance into city sewer system. Berg v. Popham (Alas. 2005), No. S-10815

wetlands -- determination of respondent Town of Malta Planning Board to issue negative declaration was not arbitrary and capricious and did not constitute abuse of discretion. Ellsworth v. Town of Malta (N.Y.App.Div. 2005), No. 96627

-- Franklin Township's Board of Supervisors erred in denying Preliminary Subdivision and Land Development Plan submitted by developer. Builders v. Franklin Township (Pa.Cmwlth. 2005), No. 2393 C.D. 2004

-- Town of Coventry Zoning Board of Review's denial of property owner's request for two dimensional variances necessary to construct proposed single-family dwelling on vacant lot was arbitrary. Dulude v. Town of Coventry Zoning Bd. of Review (R.I. 2005), No. KC 04-0742

wildlife -- in connection with approval of surface water rights, Pollution Control Hearings Board did not err in finding that issue of fact existed regarding harm to fish. Kennewick Pub. Hosp. Dist. v. Pollution Control Hearings Bd. (Wash.App. 2005), No. 22741-3-III

-- no indication in record that Town Board gave notice to adjoining property owners to enable them to be heard on property owner's request for area variance for deer farm. Fleck v. Town of Colden (N.Y.App.Div. 2005), CA 04-02065

wireless towers -- by removing challenged conditions, Board essentially permitted mobile company to modernize its cellular communications tower. Hawk v. Butler Township Zoning Hearing Bd. (Pa.Cmwlth. 2005), No. 1225 C.D. 2004

zoning -- by removing challenged conditions, Board essentially permitted mobile company to modernize its cellular communications tower. Hawk v. Butler Township Zoning Hearing Bd. (Pa.Cmwlth. 2005), No. 1225 C.D. 2004

-- genuine issues of material fact existed regarding Zoning Hearing Board's actions in regulating quarry. Lonzetta Trucking & Excavating Co. v. Schan (C.A. 3, Pa. 2005), No. 04-2758

-- individual could not enforce Section 332(c)(7)'s limitations on local zoning authority through Section 1983 action. City of Rancho Palos Verdes, California v. Abrams (U.S.S.Ct.Cal. 2005), 125 S.Ct. 1453

-- no indication in record that Town Board gave notice to adjoining property owners to enable them to be heard on property owner's request for area variance for deer farm. Fleck v. Town of Colden (N.Y.App.Div. 2005), CA 04-02065

-- order of trial court was affirmed, in part, to extent that it concluded that sufficient developable tract area existed. Erinc v. Board of Supervisors of Elk Township (Pa.Cmwlth. 2005), No. 1613 C.D. 2004

-- Town of Coventry Zoning Board of Review's denial of property owner's request for two dimensional variances necessary to construct proposed single-family dwelling on vacant lot was arbitrary. Dulude v. Town of Coventry Zoning Bd. of Review (R.I. 2005), No. KC 04-0742

-- written decision issued by Zoning Board of Review for City of Warwick was in violation of city ordinance because it failed to set forth in sufficient detail findings of fact that Board relied on to deny property owner's request for dimensional variance. Famiano v. Zoning Bd. of Review for City of Warwick (R.I. 2005), No. KC 04-0197



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