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Civil penalty claim against BP to move forward

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A U.S. District judge in Hammond has dismissed two counts against gas company BP Products North America, finding he has jurisdiction to hear the claims but deciding not to do so because of similar action ongoing elsewhere.

But U.S. Judge Philip P. Simon is keeping one count against BP alive, holding that he will decide a claim about the gas company starting construction on its Whiting oil refinery before it had obtained a proper state permit.

The 32-page order issued June 26 comes in the nearly one-year-old case of Natural Resources Defense Council v. BP Products North America, No. 2:08-cv-00204. The citizen environmental group alleges that BP violated the Clean Air Act by allowing too much pollution under the permitting it had received, as well as a claim of not getting the proper permit to modernize its Whiting plant. Part of the suit's request is to have BP fined up to $32,500 per day for construction days and for not having the proper permit.

BP filed a motion to dismiss in January, but Judge Simon decided to hear arguments in April before making a decision. After two months of analyzing the decision, the judge granted in part and denied in part the motion.

The court dismissed Counts I and III, which involve claims that BP had deceived state officials about how much pollution it would emit and, as a result, didn't obtain the proper permits that are needed when triggering federal pollution control requirements. Judge Simon found those claims are identical to the ones filed within the Indiana Department of Environmental Management's Office of Environmental Adjudication (OEA), the agency handling those types of environmental appeals that can then be taken to state court, if necessary.

In its arguments, BP said the federal court doesn't have jurisdiction over these claims because of those similar ones raised within the OEA. In his ruling, the judge analyzed two specific U.S. Supreme Court precedents on whether to use his jurisdiction or not - Burford v. Sun Oil Co., 319 U.S. 315 (1943), and Colorado River Water Conservancy Dist. v. U.S., 424 U.S. 800 (1976). Both provide frameworks for how courts should make abstention decisions, but they differ on how to do so; Burford involves special forums for regulation and adjudication, while Colorado River involves an inquiry about whether other litigation or actions can be considered "parallel."

"While I am satisfied that the Court has jurisdiction, I nevertheless think this case really presents a call to be made by the expert environmental agencies that Indiana has selected for the job," Judge Simon wrote, finding that both abstention precedents apply but that Colorado River is more applicable here.

"In sum, the NRDC's suit and the OEA action are parallel proceedings, and my evaluation of the relevant factors leads me to the strong belief that extraordinary circumstances exist here," he wrote. "Despite the starting balance being 'heavily weighed in favor of the exercise of jurisdiction,' I believe abstention under the Colorado River doctrine is appropriate."

But the judge kept the second count in his court's control, deciding that the statute specifically allows for suits seeking "appropriate civil penalties" and that doesn't conflict with the pending OEA action.

A pre-trial conference is set for Aug. 20 before Magistrate Judge Paul Cherry, according to the federal docket online.

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