The spreadsheet includes links where you can find the briefing and he will keep it updated as time allows.
You can find the spreadsheet here. Environmental Certiorari Petition Watch.
The spreadsheet includes links where you can find the briefing and he will keep it updated as time allows.
You can find the spreadsheet here. Environmental Certiorari Petition Watch.
Irrigation systems are becoming far more common features of the Hoosier farm landscape — even smaller farms. The booming farm economy has provided farmers with the financial resources to invest in irrigation as a means of avoiding drought related crop damage.
With the enactment of IC §14-25-7, the Water Resource Management Act, by the 1983 Indiana General Assembly, the Natural Resources Commission is required to “take and maintain an inventory of significant uses of water withdrawn from the surface or ground”. Section 15 of the act requires that every person who owns a significant water withdrawal facility (SWWF) shall register it on forms provided by the commission within three (3) months after the facility is completed.
Some of your clients are aware of this — some are not. All wells surface water intakes capable of pumping 100,000 gallons per day or more are considered a “significant water withdrawal facility” (SWWF) and must be registered with the Indiana Department of Natural Resources. For the Indiana farmer, this primarily relates to irrigation systems.
In addition, once registered, the farmer must file an annual report showing the total volume of water pumped during the year. NRC Information Bulletin #40. NRC Information Bulletin #40
The Indiana Department of Natural Resources has begun a review of the regulations related to water use. Part of that review will include an analysis of water use and projections for future water needs.
An important Clean Air Act case is currently before the US Supreme Court. In EPA v. EME Homer City Generation Co., scheduled for oral argument Dec. 10, the Environmental Protection Agency and environmental groups are challenging a DC Circuit decision invalidating the Cross-State Air Pollution Rule, a regulation addressing interstate air pollution throughout the eastern United States that was promulgated pursuant to the act’s “good neighbor” provision.
The decision is here. EPA vs. EME Homer
The Act requires the Environmental Protection Agency (EPA) to both establish air quality standards and gives the states significant freedom to implement plans in order to meet those standards. Among the problems the Act sought to prevent was the possible spread of air pollution from “upwind” states to “downwind” states.
In 2011, the EPA created the Transport Rule, a rule which sets emission reduction standards for 28 “upwind” states based on the air quality standards in “downwind” states. Various states, local governments, industry groups, and labor organizations brought suit in the Court of Appeals for the District of Columbia Circuit and argued that the Transport Rule created federal standards with no deference to the states, which violated federal law. The court held that the Transport Rule violated federal law because the Clean Air Act allows states to implement their own plans to curb air pollution.
The issues are (a) whether the Court of Appeals lacked jurisdiction to consider the challenges to the Clean Air Act on which it granted relief; (b) whether states are excused from adopting state implementation plans prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations; and (c) whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem.
Bell owned rental property in Indianapolis. On April 13, 2010, Bell and Bryant entered into a written property management agreement under which Bell hired Bryant as the “sole and exclusive” leasing and managing agent for the Property. Locating a tenant for the Property was one of Bryant’s responsibilities under the Agreement. Bryant was also authorized under the Agreement to execute leases for the Property on behalf of Bell. Bryant procured a tenant who subsequently signed a lease to rent the property. Pursuant to the Lease, the tenant was obligated to pay $1,800 per month in rent. The lease also called for the tenant to remit to the property manager a $50 late charge in the event that the tenant’s rent payment was more than six days late, a $35 fee for each dishonored check, and a $45 fee in the event that the tenant, without good reason, changed the date of one of the two inspections per year called for under the lease. The tenant’s original lease expired on June 30, 2011, but effective May 11, 2011, the lease was extended to a second annual term, which ended on June 30, 2012. Bell vs. Bryant
During the course of the tenant’s tenancy, she occasionally paid $50 late fees to Bryant. In May 2012, Bell learned that Bryant had kept late fees that the tenant had paid. Bell sent a letter to Bryant demanding payment of the late fees that Bryant had retained. Bryant refused.
The property management agreement provided that Bryant was to be paid: (1) a sum equal to ten percent of the gross rents collected by Bryant; (2) a seven-percent sales commission in the event that Bryant sold the property on behalf of Bell during the term of the Agreement; and (3) fees associated with the aforementioned performance of “any services not customarily a part of the usual leasing services performed by a property manager.”
Of these, the third option provides the only plausible basis for Bryant’s claim that it was entitled to retain fees associated with late payment of rent. The court rejected this claim. Therefore, the court found no basis in the property management agreement or the lease upon which Bryant was entitled to retain those fees in their entirety. Thus, with respect to Bell’s claim that she was entitled to the late fees retained by Bryant, it is far from “clear from the face of the complaint that under no circumstances could relief be granted.”
“It seems, therefore, that we are left to decide this matter based upon Bell’s assertion and our own common sense. Upon those considerations, we agree with Bell. Accordingly, Bryant was not entitled to retain the entirety of late payment fees on the basis that it was compensation for services not customarily performed by a property manager,” said Judge Friedlander.
Revocable trusts are popular substitutes for wills, intended to provide non-probate distribution of the grantor’s assets after death. It allows the grantor to retain control and use of those assets during their lifetimes. Here, Ruth Fulp placed her family farm in a revocable trust, reserving the right to revoke or amend the trust and to use its assets—with any remaining trust assets going to her three children upon her death. Fulp vs. Gilliland
A few years later, she decided to sell the farm to her son Harold, Jr. for a low price, to pay for her retirement-home care and keep the farm in the family. Ruth’s daughter, Nancy, argued that a bargain sale would breach Ruth’s fiduciary duty to her children and deprive Nancy of “her share” of the trust. The Indiana Supreme Court granted transfer to address an issue of first impression in Indiana: while a revocable trust is revocable, whom does the trustee serve?
Ruth as trustee owed a duty to herself as the trust’s settlor and primary beneficiary. But the trial court found Ruth also owed that same fiduciary duty to her children as remainder beneficiaries. The Supreme Court concluded, though, that neither the terms of Ruth’s trust nor the Indiana Trust Code require her to serve two masters — her duty as trustee was only to herself. The Court held that if trustees also owed a duty to remainder beneficiaries, it would create conflicting rights and duties for trustees and essentially render revocable trusts irrevocable. Accordingly, Ruth was free to sell her farm as trustee for whatever price she desired, without breaching a duty to her children.
Garrett and Spear own adjacent parcels of land in Newton, Indiana. The Spears purchased their property in December 1978 and have occupied it since that time. The Garretts purchased their property from Gillis in 1986 pursuant to a real estate contract and took possession at that time. Neither the Spears nor the Garretts had a survey performed at the time they purchased their respective properties. Garrett vs. Spear
At the time the Garretts purchased from Gillis, there was fencing that existed separating the Garrett and Spear real estate, and at some point after 2000 the fencing was torn down by the Garretts. Also, in 1996 the Spears erected a garage and installed a driveway on what they believed to be their property. In 2010, the Garretts had a survey done of their property. The survey revealed that the actual boundary between the two properties was north of where the fence line had existed. The survey also showed that the garage erected by the Spears encroached on the survey boundary for the Garrett real estate but was within the Spear property based upon the fence line boundary. Sometime after that, the Garretts erected a cattle fence along the survey boundary which runs to the south edge of the Spears’ garage.
In August 2010, the Spears filed a complaint against the Garretts alleging quiet title by the doctrine of title by acquiescence; quiet title by adverse possession; prescriptive easement; and trespass to land. After extensive discovery, the parties cross filed motions for summary judgment in 2012. The trial court entered its order granting summary judgment in favor of the Spears and against the Garretts. The Order stated that “[t]he court’s ruling is controlled by the doctrine of acquiescence and as such does not address the remaining theories of recovery espoused by [the Spears].” The trial court ordered the Spears to “obtain and properly record a survey reflecting the boundary line that has been in existence since 1983 along the fence line . . .” The court also ordered the Garretts to “remove any fence installed along said boundary that is now not compliant with this ruling” and gave the parties ninety days to comply.
The Court of Appeals found that the Garrett’s contract seller, Gillis, constructed a fence and came to an agreement with the Spears as to where the boundary of between the parcels was and further held that that such agreement was sufficient to invoke the doctrine of title by acquiescence.
The Court also found that the fence line boundary had been established as the boundary between the Garrett property and the Spear property by the doctrine of title by acquiescence. It is undisputed that fencing was erected in 1983 and that, in the ensuing years, this fence operated as a boundary between the two parcels. The Spears, in 1996, built a garage and driveway based upon this boundary, and it was not challenged by the Garretts until 2010, or twenty-seven years following the installation of the fencing.
As the Indiana Supreme Court previously held, “where owners of adjoining premises establish by agreement a boundary . . . and improve the same in accordance with such division, each party, in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line . . . .” This is precisely what took place in Garrett and Spear.
On August 6, 2013, EPA finalized the 2013 percentage standards for four fuel categories that are part of the Renewable Fuel Standard program established by Congress.
The Energy Independence and Security Act established the RFS program and the annual renewable fuel volume targets, which steadily increase to an overall level of 36 billion gallons in 2022. To achieve these volumes, EPA calculates a percentage-based standard for the following year. Based on the standard, each refiner and importer determines the minimum volume of renewable fuel that it must ensure is used in its transportation fuel.
The final 2013 overall volumes and standards require 16.55 billion gallons of renewable fuels to be blended into the U.S. fuel supply (a 9.74 percent blend). This standard specifically requires:
• Biomass-based diesel (1.28 billion gallons; 1.13 percent)
• Advanced biofuels (2.75 billion gallons; 1.62 percent)
• Cellulosic biofuels (6.00 million gallons; 0.004 percent)
These standards reflect EPA’s updated production projections. The U.S. EPA has lowered its original target for cellulosic biofuel production. But not voluntarily. On January 25, 2013, the U.S. Court of Appeals required the agency to reevaluate projections for cellulosic biofuel to reflect market conditions. This new standard is consistent with the approach outlined in that case. American Petroleum vs. EPA.
That 2013 requirement is far lower than EPA’s initial proposal of 11 million gallons of cellulosic biofuel, or the equivalent of 14 million gallons of ethanol. The final rule — which sets the volume requirements under the renewable fuel standard — puts the target for cellulosic biofuel at the equivalent of 6 million gallons of ethanol.
EPA declined to lower the requirements for overall advanced biofuel. The final rule keeps the proposed rule’s requirement of 2.75 billion gallons of ethanol-equivalent volume.
The climate change issue confounds me. Not the science of it — but the denial of overwhelming scientific evidence primarily by the radical right wing of the Republican Party. You would think that the political debate would be defined by policy alternatives as opposed to consuming political resources discussing the very existence of climate change. But there you go. Politics in America.
“Each of us took turns over the past 43 years running the Environmental Protection Agency. We served Republican presidents, but we have a message that transcends political affiliation: the United States must move now on substantive steps to curb climate change, at home and internationally.
There is no longer any credible scientific debate about the basic facts: our world continues to warm, with the last decade the hottest in modern records, and the deep ocean warming faster than the earth’s atmosphere. Sea level is rising. Arctic Sea ice is melting years faster than projected.
The costs of inaction are undeniable. The lines of scientific evidence grow only stronger and more numerous. And the window of time remaining to act is growing smaller: delay could mean that warming becomes ‘locked in.’……”
Here is the op-ed piece: A Republican Case for Climate Action.
It’s not the policy alternatives that are of interest here. The importance of this op-ed piece rests in the fact that it is written by mainstream members of the Republican Party. This is directed, in my view, toward the radical right wing of the Republican Party — fallen away Libertarians really — who seem to be controlling the discussion and crushing opportunities for bipartisan compromise.
Northern Assurance Co. of American, Successor in Interest to Employers Surplus Lines Ins. Co. v. Thomson, Inc., k/n/a Technicolor, USA, Inc. Thomson, Inc. n/k/a Technicolor USA Inc. sued several insurance companies, including Northern Assurance Co. of America (the successor in interest to Employers Surplus Lines Insurance Co. seeking insurance coverage for environmental damages at three sites owned by Technicolor. ESLIC vs. Technicolor USA.
Thomson, Inc. is a corporation with long-established ties to Indiana. Technicolor was a California-based corporation that had a U.K.-based subsidiary known as Technicolor Limited. Both Technicolor corporations were later acquired by Thomson, which later changed its name to Technicolor USA, Inc. ESLIC was an insurance company subsequently acquired by Northern Assurance Co. of America. Although Northern Assurance.
From 1961 to 1969, ESLIC sold three first-level excess policies to Technicolor and its subsidiaries. Technicolor is seeking coverage for environmental cleanup costs at three sites. The sites are located in Los Angeles, North Hollywood, California, and West Drayton, England. Chemicals used in the various businesses were leaked and spilled, resulting in soil and groundwater contamination, requiring extensive and expensive cleanup.
The issue is whether California or Indiana law applies. The trial court granted summary judgment in favor of Technicolor, concluding that Technicolor was entitled to coverage under the policies ESLIC had issued.
On appeal, ESLIC argued that the trial court should have applied California law when interpreting the ESLIC policies and that, if California law is applied, Technicolor has no coverage under the ESLIC policies for cleanup costs at the contaminated sites because Technicolor’s cleanup costs do not constitute damages resulting from a suit brought against Technicolor. The Court of Appeals reversed and remanded.
Using California law, the Indiana Court of Appeals ruled that an insurance company does not have to pay for an environmental cleanup, but the court noted although California applied, it would have ruled differently if Indiana law had been applicable.
We conclude that ESLIC did not waive its choice-of-law argument. We also conclude that, under a choice-of-law analysis, California law should apply to the interpretation of the ESLIC policies because California is the state with the most significant relationship to the transaction and the parties. Finally, under California law, the ESLIC policies provide coverage only for money damages ordered by a court and do provide coverage for expenses incurred as a result of responding to the cleanup orders of administrative agencies. We therefore reverse the order of the trial court granting summary judgment in favor of Technicolor and remand with instructions to enter summary judgment in favor of ESLIC.
The Court of Appeals reversed the order of the trial court granting summary judgment in favor of Technicolor USA, Inc. and remanded with instructions to grant summary judgment in favor of Employers Surplus Lines Insurance Co.
“This appeal is the latest chapter in the story of the Environmental Chemical and Conservation Company (“Enviro-Chem”), a defunct Indiana corporation with an expensive environmental legacy. Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it closed its doors in the early 1980s, and it left considerable amounts of pollutants behind.”
Good introduction. The other 75 pages of Judge DeGuilio’s decision look like this: Bernstein vs. Bankert and Auto Owners.
A brief summary. Third Site is a Superfund (CERCLA) site that was part of a larger area, under common ownership by the Bankerts, used for recycling industrial wastes.
The approximately 6-acre Envirochem Corporation site is located on the east side of U.S. Highway 421, west of Northside Sanitary Landfill, and north of Zionsville in Boone County, Indiana. The site processed and reclaimed solvents from 1977 until 1982, when the State closed the site. Wastes such as resins, paint sludges, waste oils, and flammable solvents were received in drums and bulk tankers and were stored onsite in drums and storage tanks. Onsite accumulation and unauthorized discharge of contaminated storm water, poor management of drum inventory, unapproved burning of chlorinated hydrocarbons and other solvents, and several spills led the State and the United States Environmental Protection Agency to investigate the site. Over 20,000 drums and 400,000 gallons of waste remained onsite. Contaminated underground and aboveground storage tanks and wastewater in holding ponds were present. In 1985, the State noted that runoff from the site enters the Eagle Creek Reservoir via Finley Creek. The city of Indianapolis uses the Eagle Creek Reservoir for part of its drinking water supply.
Cleanup initially focused on other sites, but in 1987 and 1992 consultants found concentrations of volatile organic compounds; Third Site was transferring pollutants to Finley Creek, which flows to Eagle Creek Reservoir, which supplies Indianapolis drinking water. The creek was realigned. The Eagle Creek watershed is shown in the graphic.
In 1999, the EPA entered into an Administrative Order by Consent (AOC) with potentially responsible parties. Non-Premium Respondents agreed to undertake an Engineering Evaluation and Cost Analysis (EE/CA) of removal alternatives and to settle a trust to bankroll the EE/CA. Premium Respondents, allegedly de minimis contributors, were entitled to settle out with a one-time Trust contribution under 42 U.S.C. 9622(g). Non-Premium Respondents met their obligations.
In 2002, the parties entered into a second AOC to perform work described by the Enforcement Action Memorandum: Non-Premium respondents had the same Trust obligations for removal efforts. The Bankerts are Non-Premium Respondents under both AOCs, but have not met their obligations.
In 2008, the Trustees sued the Bankerts and their insurers, seeking cost recovery under CERCLA, 42 U.S.C. 9607(a) and Indiana law. One of the insurers argued that its successful litigation in connection with cleanup of the adjoining site precluded a finding of coverage. Entering summary judgment for the Bankerts, the district court construed the CERCLA claim as seeking contribution under 42 U.S.C. 9613(f), and barred by the statute of limitations, so that issues concerning the insurer were moot.
End result: the Seventh Circuit reinstated claims under 42 U.S.C. 9607(a)(4)(B) to recover costs incurred under the 2002 AOC and against the insurer. On rehearing, the court clarified that a party responsible for contamination may obtain an immediately effective release from the EPA in a settlement, or it may obtain only a performance-dependent conditional covenant not to sue with an accompanying disclaimer of liability. Whether, and when, a given settlement “resolves” a party’s liability under 42 U.S.C. 9613(f)(3)(B) is case-specific and depends on its terms. In this case, the AOC did not provide for resolution upon entering into the agreement.