The U.S. Court of Appeals for the Ninth Circuit recently agreed to allow an interlocutory appeal of a novel air emissions case under the federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). The Ninth Court of Appeals will review a decision from the U.S. District Court for the Eastern District of Washington in the case of Joseph Pakootas, et al. v. Teck Cominco Metals. In denying the defendant smelter’s motion to dismiss, the district court concluded that air emissions from a lead/zinc smelter in Canada, which were transported by wind and deposited at a CERCLA site in the State… Read more
Tag: athompson
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
The Energy /Water Connection and the Role of HB 57
SGR Partners Andy Thompson and Steve O’Day are scheduled to speak at the State Bar of Georgia Environmental Law Section Summer Seminar on July 24-25, 2015 at Hilton Head Island. Andy will speak on a “Current Events” panel and will address recent developments in the Clean Water Act Permit Shield Defense, and Steve will speak on a panel entitled “Water Supply and Energy Demand: Striking the Right Balance” and will address “The Energy/Water Connection and the Role of HB 57.”
Liability Allocation Under CERCLA Within Court’s Discretion
A Federal Appeals Court in the Ninth Circuit has unanimously ruled on April 2, that Federal Trial Courts are not required to employ a specific formula when allocating costs between private parties for clean-up expenses incurred under CERCLA. The Court stated that District Courts have discretion in determining the most equitable method of accounting for settlements between private parties in a contribution action, and stated that this approach is consistent with both federal common law and the intent of CERCLA. Under the Ruling, District Courts can apply equitable factors in deciding whether to subtract from a Plaintiff’s potential recovery the… Read more
Land Deposition of Air Pollutants Constitutes Disposal of Hazardous Waste
Disagreeing with a decision by the Ninth Circuit Court of Appeals, the U.S. District Court for the Southern District of Ohio, Judge Algenon Marbley, ruled on March 10 that the deposition on land of perfluorooctanoic acid (C8) on a well field owned by a rural water district constitutes disposal of hazardous waste under the Resource Conservation and Recovery Act (RCRA). Contamination of soil and groundwater from such deposition thus can be addressed in an RCRA citizens suit if shown that it is an imminent and substantial endangerment to human health or the environment. The Little Hocking Water Association, et al… Read more
Recent Trend in Environmental Litigation: Public Nuisance Cases Against Regulated Entities for Air Pollution
A June 13 ruling by the Iowa Supreme Court highlights a recent trend in environmental litigation: lawsuits against regulated entities asserting state law public nuisance claims for air pollution. In 2011, the U.S. Supreme Court held unanimously that the Clean Air Act preempts federal common law nuisance claims against a utility for emissions of greenhouse gases. American Electric Power v. Connecticut, 564 U.S. ___ (2011). Since then, litigants have sued power utilities and other entities with Clean Air Act permits under the state common law of nuisance in various states. In 2010, the Fourth Circuit Court of Appeals held that the… Read more
U.S. SUPREME COURT ISSUES NARROW DECISION IN CWA CASE
On January 8, 2013, the U.S. Supreme Court issued a unanimous decision in Los Angeles County Flood Control District v. NRDC, Inc., a closely watched case under the federal Clean Water Act (CWA) relating to pollutants from municipal storm water systems. Prior to the decision, there was speculation that the U.S. Supreme Court may use the case to address issues relating to the scope and jurisdiction of the CWA, but ultimately the Court issued a very narrow decision holding that the flow of water with pollutants from an improved portion of a navigable waterway into an unimproved portion of the… Read more
EPA: No Major Shift in Orders Issued Under Clean Water Act
Despite the U.S. Supreme Court ruling in March of this year, holding that compliance orders can be challenged in court, the EPA sees no major shift in its policy of issuing the orders under the Clean Water Act. In a seminar sponsored by the American Bar Association – American Law Institute, Mark Pollins, Director of EPA’s Water Enforcement Division, stated that the agency had no intention of stopping its use of the orders, and that he didn’t see a dramatic shift in how administration enforcement authority is used. In the wake of the Supreme Court ruling, however, Pollins said it… Read more