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September 2000 |
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![]() September 2000 at the time of publication. --Ed. |
| In this month's "Notes & Trends": |
Judicial Law Cost Recovery. On June 14, 2000, the 8th Circuit Court of Appeals affirmed a judgment against a property owner attempting to recover its contamination cleanup costs. Union Pacific remediated its property of contamination allegedly caused by its former tenant, Reilly Industries, as part of the sale of its property. Once completed, Union Pacific sued Reilly Industries to recover these cleanup costs under CERCLA, MERLA and state common law. In its decision, the 8th Circuit affirmed the district court grant of partial summary judgment to the defendant, Reilly Industries, regarding the Union Pacific CERCLA claims. Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), a private party cannot recover its reasonable and necessary response costs from a responsible party unless it complies with the National Contingency Plan (NCP). The district court found Union Pacific failed to "substantially comply" with the NCP when it gave the public less than the required 30 days to participate "meaningfully" in the selection of the response action. The court rejected the Union Pacific argument that extensive involvement by the Minnesota Pollution Control Agency in the remediation selection process satisfied this requirement. Furthermore, Union Pacific deviated from the NCP when it selected the remediation method before conducting a formal remedial investigation and feasibility study. The 8th Circuit also upheld the district court decisions on the other Union Pacific claims. Union Pacific argued the statute of limitations on its Minnesota Environmental Response and Liability Act (MERLA) claim began when it commenced the cleanup. The district court determined the claim instead began to run when Union Pacific first knew or reasonably should have known of the contamination. Because Union Pacific filed against Reilly Industries more than six years after becoming aware of the contamination, the court dismissed the MERLA claim. The Union Pacific indemnity claim failed because the court found neither an express contractual relationship nor an implied legal duty between the parties. And the district court found no basis to grant the Union Pacific equitable claim of contribution, given its failure to invoke its MERLA rights in a timely fashion. Union Pac. R.R. Co. v. Reilly Indus., Inc., 2000 WL 764780 (8th Cir. Minn.). Final TMDL Rules. On July 11, 2000, the Environmental Protection Agency (EPA) issued the final version of its revised Total Maximum Daily Load (TMDL) rules. Under §303(d), the Clean Water Act, states are required to establish TMDLs for waters that do not meet applicable water quality standards. The state must then establish and enforce discharge controls from point and nonpoint pollutant sources as necessary to achieve these standards. States have nonetheless been slow to establish TMDLs, due largely to the difficulty in regulating nonpoint sources. Under the new EPA rules, states must establish TMDLs for all impaired waters within ten years. The EPA may grant up to five years of additional time "where necessary." In addition to setting the limits themselves, states must also provide EPA with a plan as to how each TMDL will be implemented. Implementation plans may vary based on whether the water body is impaired only by point sources subject to National Pollutant Discharge Elimination System (NPDES) permits, only by "other sources" (including nonpoint sources) or by both. The new rules set a goal of five years for implementing management measures or control actions to achieve load allocations and ten years for attaining water quality standards. 65 Fed. Reg. 43,585 (2000). Environmental Review Process. At its July 20, 2000 meeting, the Minnesota Environmental Quality Board (EQB) approved the creation of a committee to advise the EQB on changes in the state environmental review of rules and statutes. EQB Chair Gene Hugoson will appoint an unspecified number of committee members from four groups: environmental organizations, businesses, local governments and the public. Suggestions for appointees may be submitted to Jon Larsen at Minnesota Planning, 658 Cedar St., St. Paul, MN 55155 or by email to eqb@mnplan.state.mn.us. |
By William Hefner, Greene Espel PLLP |
| In this month's "Notes & Trends": |
Judicial Law Termination of Parental Rights; Waiver of Right to Counsel. In this case, the Supreme Court reversed the Court of Appeals decision (604 N.W.2d 97, Minn. App. 1999; see March 2000 Bench & Bar, Notes & Trends, Juvenile Law), which had reversed the termination of parental rights by the trial court, based on the fact that the trial court had not applied the procedures outlined in Minn. R. Crim. P. 5.02, subd. 1(4), in accepting the parents voluntary waiver of her right to counsel. At the Court of Appeals, appellant Jackson challenged the district court termination of her parental rights (TPR), alleging that the court abused its discretion by denying her the right to counsel. Jackson fired her public defender on the first day of the TPR trial. After brief questioning, the court allowed Jackson to represent herself. Minn. Stat. §260.155, subd. 2, grants a parent confronting a TPR proceeding the right to counsel. A parent can choose to waive this statutory right to counsel if the waiver is voluntary, intelligent, and on the record. Minn. R. Juv. P. 50.01. The Court of Appeals held that because the statutory right to counsel in TPR proceedings is analogous to a criminal defendants right to counsel, it applied a modified version of Minn. R. Crim. P. 5.02, subd. 1(4), and required the trial court to conduct an on-the-record explanation of the nature of the statutory grounds for termination and the evidentiary burdens; the possible consequences and implications of a TPR proceeding; the advantages and disadvantages of self-representation; and all other facts essential to a broad understanding of the consequences of waiver of the right to counsel, prior to accepting the parents waiver of the right to counsel. Finding that the trial court had failed to thoroughly and adequately advise Jackson on all these issues, the Court of Appeals held that the trial court erred in failing to establish that Jackson knowingly and voluntarily waived her right to counsel and reversed the termination of her parental rights. The Supreme Court reversed the Court of Appeals, determining that the analogy between waiver of the right to counsel in TPR proceedings and in criminal proceedings fails to recognize that the creation of a statutory right (as in the statutory right to counsel in Minnesota TPR proceedings), while deserving of protection, is not the same as a constitutional right. The court noted that in the criminal context, United States Supreme Court rulings establish a constitutional right to counsel only when the accused faces potential deprivation of physical liberty, and that unlike criminal proceedings, TPR proceedings cannot deprive the parent of physical liberty. The Supreme Court held that based on the inherent differences between constitutional and statutory rights, and case precedent relating to each, the determination of a parents valid waiver of the statutory right to counsel in TPR proceedings does not necessitate the application of the procedure set forth in Minn. R. Crim. P. 5.02, subd. 1(4). The determination of whether a parents waiver of counsel in a TPR proceeding is voluntary and intelligent can be based on the surrounding circumstances of the case. After reviewing the facts of the case at bar, the court determined that the circumstances surrounding the parents waiver demonstrated that it was voluntary and intelligent and therefore valid. In re G.L.H, C8-99-1345, 2000 WL 994323 (Minn. 7/20/00). Delinquency: Incendiary Devices; Right to Free Expression. See coverage of In re C.P.K., No. J89958572, 2000 WL 823352 (Minn. App. 6/27/00) under "Criminal Law," supra. |
By Susan A. Daudelin, Walling & Berg PA |