Last week, the Central District of Illinois dismissed a case wherein an environmental group sought to extend liability to a corporation based on a groundwater connection to the Middle Fork River under the Clean Water Act (the “CWA”). Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 18-cv-02148 (C.D. Ill. Nov. 14, 2018). In so doing, the court held that it was bound by the Seventh Circuit’s 1994 decision in Village of Oconomocow Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994) wherein the Circuit court had held that discharges into groundwater were not regulated under the CWA. The district court’s decision is in line with the Sixth Circuit’s recent decisions in Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, (6th Cir. Sept. 24, 2018) and Tennessee Clean Water Network v. Tennessee Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018), discussed by this blog here and in contrast to the Fourth Circuit’s decision in Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018), discussed by this blog here. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Coal Ash, Contamination, Groundwater, NPDES, Permits, Seventh Circuit, Water

Last week, the Sixth Circuit Court of Appeals held in two separate cases that the Clean Water Act does not extend liability to pollution that reaches navigable waters via groundwater. Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, (6th Cir. Sept. 24, 2018); Tennessee Clean Water Network v. Tennessee Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018). Instead, the court adopted the bright line rule that for a point source discharge to be actionable under the CWA, it must “dump directly into” navigable waters. The decisions departed from the Fourth and Ninth Circuits’ rulings earlier this year, which held that a “direct hydrological connection” between a discharge and waterbody was sufficient for CWA liability. Our prior blog post on the Fourth Circuit’s decision, Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018) can be found here. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Coal Ash, Contamination, Effluents, Groundwater, Navigability, Rapanos, Sixth Circuit, Water

On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Condemnation, EHB, Eminent Domain, Energy, Environmental Rights Amendment, Federal Energy Regulatory Commission, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Last Thursday, the Fourth Circuit Court of Appeals held that environmental groups could bring a citizen suit under the Clean Water Act (“CWA”) against the owner of a ruptured gasoline pipeline where the pipeline had been repaired but the spilled gasoline allegedly continued to travel through groundwater and into nearby surface waters regulated by the CWA as “navigable waters.” Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018). In doing so, the Court weighed in on an issue that was of first impression to the Fourth Circuit and has significant implications for CWA liability – whether the discharge of a pollutant that moves through ground water before reaching navigable waters may constitute a discharge of a pollutant pursuant to the CWA. The Court also resolved the preliminary jurisdictional issue by finding that the plaintiffs had adequately alleged an “ongoing violation” as necessary to allege a CWA violation in the district court.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Fourth Circuit, Navigability, Oil and Gas, Pipelines, Water

Last month, in U.S. v. CITGO Petro. Corp., 711 Fed. Appx. 237 (5th Cir. 2017), the United States Court of Appeals for the Fifth Circuit affirmed an $81 million civil penalty assessment under the federal Clean Water Act (“CWA”) against CITGO Petroleum Corp. (“CITGO”), for unpermitted wastewater discharges from its plant in Lake Charles, Louisiana when a severe rainstorm caused two storage tanks to fail and over 2 million gallons of oil to be discharged into local waterways.  In the underlying case before the United States District Court for the Western District of Louisiana, CITGO conceded liability, and therefore, the only issue for trial was the total penalty to be assessed.  After a two-week bench trial, the District Court determined that CITGO had failed to properly maintain its wastewater storage tanks and allowed sludge and waste oil to accumulate in the tanks, which lessened their total storage capacity and ability to withstand a storm surge.  The District Court ultimately assessed a $6 million civil penalty against CITGO, which EPA appealed.  Read More »

Share | Email| Comments|  Topics: Civil Penalties, Clean Water Act, Cleanup, Contamination, EPA, Fifth Circuit, Louisiana, Storage Tank, Stormwater, Water

Do indirect discharges of pollutants into navigable waters amount to a violation of the Clean Water Act? On February 1^st, the Court of Appeals for the Ninth Circuit held in Hawaii Wildlife Fund et al. v. County of Maui, No. 15-17447, that discharges of pollutants originating from a point source violate the Clean Water Act even if the pollutants first enter another means of conveyance—in this case groundwater—before entering into a navigable waterway. Despite recent EPA efforts to roll back certain environmental regulations, the court gave no deference to EPA’s amicus curiae proposed liability rule requiring a “direct hydrological connection” between the point source and the navigable water. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Drilling, Effluents, EPA, Ninth Circuit, NPDES, Oil and Gas, Permits, Rapanos, Water

On January 22, as Philadelphia Eagles fans continued to celebrate the team’s NFC Championship victory over the Minnesota Vikings, the U.S. Supreme Court was busy issuing a unanimous opinion in National Association of Manufacturers v. Department of Defense concerning the Waters of the United States Rule (“Rule”) promulgated by the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) in 2015. The Rule defines the statutory term “waters of the United States” in the Clean Water Act, and has been subject to appeals in both federal district courts and courts of appeals. On October 11, 2017, the Supreme Court heard oral argument addressing whether appeals of the Rule should be filed first in either the district court or the court of appeals, and held today that because the Rule does not fall within one of the Clean Water Act’s (“Act”) seven enumerated categories of EPA actions for which the courts of appeal have jurisdiction, appeals of the Rule must first proceed in district court. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Federal Procedure, NPDES, Permits, Procedure, Supreme Court, Water, Wetlands

This Post was authored by Christopher Rodrigues, a MGKF summer associate.

In a unanimous decision penned by Circuit Judge Kavanaugh, the United States Court of Appeals for the D.C. Circuit affirmed a lower court decision holding that the EPA properly withheld information from its response to several environmental groups' Freedom of Information Act (“FOIA”) requests. Envtl. Integrity Project v. EPA, No. 16-5109, 2017 U.S. App. LEXIS 9332, at *4 (D.C. Cir. May 30, 2017).  The court held that Section 308 of the Clean Water Act (“CWA”) does not supersede Exemption 4 of FOIA. Id.  In relevant part, Section 308 of the CWA states that effluent data shall be made available to the public, unless releasing the information would divulge trade secrets.  33 U.S.C. § 1318(b) (1987).  Exemption 4 under FOIA, however, allows the government to withhold information that would reveal a company’s trade secrets or commercial or financial information.  5 U.S.C. § 552(b)(4) (2016).  Thus, the inconsistent exemptions have created tension in the lower courts that the D.C. Circuit has attempted to alleviate for future decisions in Environmental Integrity. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, D.C. Circuit, Effluents, FOIA, Rulemaking

The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Due Process, EHB, Energy, Federal Procedure, Hearing Board, Natural Gas Act, NPDES, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Under the Clean Water Act (“CWA”), it is well established that any entity discharging pollutants into the surface waters of the United States from a “point source” must obtain a permit. But courts have disagreed on whether the CWA also encompasses groundwater that is hydrologically connected to surface water.  Last week, a federal district court in Virginia followed a line of cases in holding that the CWA does cover the discharge of pollutants to groundwater that is hydrologically connected to surface water. Sierra Club v. Va. Elec. & Power Co., Civil Action No. 2:15-CV-112 (E.D. Va. Mar. 23, 2017). Read More »

Share | Email| Comments|  Topics: Citizen Suit, Civil Penalties, Clean Water Act, Coal Ash, Injunction, NPDES, Permits, Water