Mar 20, 2018

Georgia Court of Appeals Decision Regarding Antidegradation Rule and Nonpoint Sources

Georgia Court of Appeals: Wastewater Treatment Facility

On February 27, 2018, the Georgia Court of Appeals issued a decision in Craig Barrow, III v. Richard E. Dunn, which involved an administrative appeal of a permit issued by the Georgia Environmental Protection Division (“EPD”) to the City of Guyton for the operation of a land application system (“LAS”) wastewater treatment facility. In Barrow, the plaintiff-property owner filed an administrative appeal of the LAS permit and alleged that the partially treated wastewater sprayed by the City at the LAS site would run off the site and degrade the water quality of nearby streams and wetlands on the plaintiff’s property…. Read more

Mar 5, 2018

Federal Appellate Court Rules That CWA Applies To Groundwater Discharges

Groundwater in pipe

On February 1, 2018, the U.S. Court of Appeals for the Ninth Circuit issued a decision concluding that the federal Clean Water Act (CWA) applies to claims involving the discharge of pollutants to groundwater which ultimately migrate to surface waters. In Hawaii Wildlife Fund v. County of Maui, the Ninth Circuit (which covers federal courts in the states of Hawaii, California, Oregon, Alaska, Nevada, Idaho, Arizona, Montana and Washington) affirmed a lower court’s grant of summary judgment to the plaintiff environmental organizations and held that the defendant-county was in violation of the CWA in regard to its decades-old practice of… Read more

Aug 23, 2017

Georgia Federal Court Rules That CWA Applies to Groundwater Discharges


On May 12, 2017, the U.S. District Court for the Middle District of Georgia issued a decision concluding that the federal Clean Water Act (CWA) applies to claims involving the discharge of pollutants to groundwater that it is hydrologically connected to surface waters.  In Flint Riverkeeper, Inc. v. Southern Mills, Inc., the district court denied the defendant’s motion to dismiss the plaintiffs’ citizen suit alleging violations of the CWA as a result of discharges of industrial wastewater from a land application system (LAS) operated by the defendant dyeing and finishing facility in Molena, Georgia.  The plaintiffs alleged, among other things,… Read more

Mar 15, 2017

Company That Settled CERCLA Liability in Bankruptcy Can Pursue Contribution Claim

Bankruptcy Law & Judicial Estoppel

In January, the U.S. Court of Appeals for the 10th Circuit reversed a District Court’s ruling that a company that settled its CERCLA liability with the federal government in a bankruptcy proceeding was barred from seeking contribution against another PRP.  Instead, the 10th Circuit ruled in Asarco v. Noranda Mining, Inc., No. 16-4045 (10th Cir. 1/3/17), that Asarco is allowed to pursue a claim against another PRP for contribution for amounts Asarco overpaid in its settlement with EPA. Asarco filed for Chapter 11 bankruptcy in 2005.  In 2009, a global settlement agreement with EPA under which Asarco paid $1.79 billion… Read more

Dec 6, 2016

EPA Announces First Ten Chemicals To Be Evaluated Under TSCA

Chemical Testing

In the summer of 2016, Congress passed and President Obama signed into law an amended Toxic Substances Control Act (TSCA) which included, among other things, new authority for U.S. EPA to assess and regulate existing chemicals already in commerce. On November 29, 2016, EPA announced the first ten chemicals that it will evaluate for risks to human health and the environment.  As expected, the list includes asbestos and the following chemicals: 1,4-dioxane, 1-bromopropane, carbon tetrachloride, cyclic aliphatic bromide cluster, methylene chloride, N-methylpyrrolidone, pigment violet 29, tetrachloroethylene (a/k/a perchloroethylene), and trichloroethylene. Within six months, EPA is expected to issue a “scoping… Read more

Aug 9, 2016

Federal Appellate Court Rules In CERCLA Air Emissions Case

On July 27, 2016, the U.S. Court of Appeals for the Ninth Circuit issued a decision in a novel air emissions case under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA).  In Joseph Pakootas, et al. v. Teck Cominco Metals, the Ninth Court of Appeals held that the defendant smelter operator was not liable as an “arranger” under CERCLA for aerial emissions deposited on land or water.  The case involved air emissions from a lead/zinc smelter in Canada, which were transported by wind and deposited at a CERCLA site in the State of Washington.  The district court had… Read more

Jul 11, 2016

Georgia Supreme Court Decision Regarding Causation Testimony in Asbestos Case

On July 5, 2016, the Georgia Supreme Court issued a decision in Scapa Dryer Fabrics, Inc. v. Knight, et al., in which the plaintiff alleged he was exposed to asbestos-containing products at a textile manufacturer’s facility in the late 1960s and early 1970s.  In reversing a Georgia Court of Appeals decision, the Georgia Supreme Court held that the trial court should have excluded the testimony of the plaintiff’s expert because it did not “fit” the legal standard for causation under Georgia law.  Specifically, the plaintiff’s expert had adopted a “cumulative/any exposure” causation theory and opined that each exposure to asbestos… Read more

Apr 11, 2016

Georgia Supreme Court Decision Regarding Pollution Exclusion in Insurance Policy

On March 21, 2016, the Georgia Supreme Court issued a decision in Georgia Farm Bureau Mutual Insurance Company v. Smith, which involved a declaratory judgment action by an insurer that it had no duty to defend or provide coverage to a landlord against a tenant’s lawsuit alleging that her daughter suffered brain damage as a result of ingesting lead from deteriorating lead-based paint in a rental property.  In reversing a Georgia Court of Appeals decision, the Georgia Supreme Court held that a personal injury claim arising from lead poisoning was excluded from coverage under an “absolute pollution exclusion” in a… Read more

Feb 29, 2016

Third Circuit Upholds Diligent Prosecution Bar to Citizen Suit Under Clean Air Act

In May, 2014, Group Against Smog and Pollution (GASP) sued coke producer Shenango, Inc. under the Clean Air Act’s (CAA) citizen suit provision for allegedly violating opacity limits in its air permit for its Neville Island, Pennsylvania facility.  Prior to that lawsuit, U.S. EPA, Pennsylvania Department of Environmental Protection (DEP) and Allegheny County Health Department (ACHD) had sued Shenango in 2012 in the U.S. District Court for the Western District of Pennsylvania and entered into a consent decree addressing opacity violations.  The Court retained jurisdiction to enforce the consent decree.  In 2014, ACHD sued Shenango in the Allegheny County Court… Read more

Aug 10, 2015

EPA Restricts Permit Shield in New Industrial Stormwater General Permit

In its updated Clean Water Act Multi-Sector General Permit for stormwater discharges from industrial activities issued June 5, EPA has explicitly provided that non-stormwater discharges of any pollutants are not authorized and will either have to be eliminated or covered by a separate individual NPDES permit. Substantial litigation has occurred under the previous version of the industrial stormwater general permit, which did not contain the explicit ban, over whether a permittee is shielded from liability for pollutants not specifically listed in its coverage under the general permit. Under the Fourth Circuit’s landmark decision in Piney Run Preservation Association v. County… Read more