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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 »

On February 12, 2018, the Appellate Division of the Superior Court of New Jersey held that environmental groups had standing to challenge on appeal the trial court’s ruling accepting DEP’s $225 million settlement with Exxon Mobil for Natural Resource Damages (“NRD”), which include compensation for the injury and destruction of natural resources and the public’s loss of the use and enjoyment of those resources under New Jersey’s Spill Compensation and Control Act (“Spill Act”). See New Jersey Dep’t of Envtl. Prot. v. Exxon Mobil Corp., No. A-0668-15T1, 2018 WL 823001 (N.J. Super. Ct. App. Div. Feb. 12, 2018). The appellate court ultimately upheld the settlement, notably the largest NRD settlement in New Jersey’s history, finding that it was a reasonable compromise and was in the public interest.  Two weeks later, however, the environmental groups whom the Court found had standing to appeal, including the New Jersey Sierra Club and the Delaware Riverkeeper filed a Petition for Certification, requesting that the New Jersey Supreme Court review the decision.  Read More »

In an opinion issued on February 12, 2018 in the case of Cooper Crouse-Hinds LLC et al. v. City of Syracuse et al., Case No. 5:16-cv-01201 (N.D.N.Y. Feb. 12, 2018), Judge Mae D’Agostino of the United States District Court for the Northern District of New York weighed in on the issue of when state court orders for removal and remediation resolve a potentially responsible party's liability to the government under Section 113 of CERCLA, and in this case allowing, for at least the time being, Section 107 claims to proceed where there was no clear guidance from the Second Circuit. Read More »

Do indirect discharges of pollutants into navigable waters amount to a violation of the Clean Water Act? On February 1st, 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 »

On Monday, the Pennsylvania Environmental Hearing Board (the “Board”) issued an adjudication in Logan v. DEP, EHB Docket No. 2016-091-L (Adjudication issued Jan. 29, 2018), in which the Board dismissed an appeal challenging the Pennsylvania Department of Environmental Protection’s (“DEP”) issuance of an air quality plan approval to Purdue Agribusiness LLC (“Purdue”) for construction of a soybean solvent extraction plant. In upholding the plan approval, the Board rejected the appellants’ argument that DEP’s issuance of the plan approval violated Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment. Read More »

A group of private landowners ended of 2017 with a Montana Supreme Court ruling, in Atlantic Richfield Company v. Montana Second Judicial District Court, that they could proceed with their state law claims for restoration damages against the owner of a site contaminated by a former copper smelter. No. 16-0555, 2017 WL 6629410 (Mont. December 29, 2017). In a split decision, the Court found that the landowners’ claims for restoration damages were not preempted by the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) because the claims did not constitute a challenge to the U.S. Environmental Protection Agency’s established cleanup plan for the Site. Read More »

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 »

A putative class of plaintiffs who allege to have lived in a defined geographic area around a manufacturing plant in Merrimack, New Hampshire, or have been served by the town’s municipal water supply, sued the manufacturer in federal court, alleging property damage claims and exposure to perfluorooctanoate (AFPO) and perfluorooctanoic acid (PFOA) that warrants medical monitoring.  Brown v. Saint-Gobain Performance Plastics Corp. et al., No. 16-cv-242, 2017 WL 6043956 (D.N.H. Dec. 6, 2017).  The plaintiffs’ claims were styled as common law claims for negligence, trespass, nuisance, and negligent failure to warn, as well as an equitable claim for “negative unjust enrichment” on the theory that the manufacturer was unjustly enriched by avoiding costs associated with preventing the release of contaminants.  The Court dismissed the unjust enrichment count but allowed the remaining claims to proceed. Read More »

In 2014, the Town of Westport, Massachusetts (Westport) brought suit against Monsanto Company (Monsanto) seeking to recover costs it had and would incur in remediating PCB-containing caulk used in the construction of the Westport Middle School in 1969.  Through a series of pretrial motions, the district court eventually dismissed all claims against Monsanto and its related entities, and in the recent decision of Town of Westport v. Monsanto, No. 17-1461, 2017 U.S. App. LEXIS 24827 (1st Cir. Dec. 8, 2017), the First Circuit affirmed the district court’s actions, dealing a blow to purchasers of PCB-containing building materials seeking similar recoveries.  Read More »

On November 8, 2017, the Pennsylvania Environmental Hearing Board (the “Board”) issued an adjudication in Friends of Lackawanna v. DEP, EHB Docket No. 2015-063-L (Adjudication issued Nov. 8, 2017), in which the Board upheld the Pennsylvania Department of Environmental Protection’s (“DEP”) issuance of a renewal of Keystone Sanitary Landfill, Inc’s (“Keystone”) solid waste management permit for the Keystone Landfill. At the same time, the Board added a condition to the permit requiring Keystone to prepare a groundwater assessment plan based on groundwater degradation observed in one of its monitoring wells. Interspersed throughout this decision was language that shed additional light on the Board’s view of how Article I, Section 27 of the Pennsylvania Constitution, often referred to as the Environmental Rights Amendment, applies to DEP permitting decisions. Read More »