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

Earlier this month, New Jersey’s Appellate Division affirmed a judgment issued by the Chancery Division, the state’s court of equity, which required neighbors to participate and share in the costs of investigating nearby contamination even though there was not yet any evidence as to the precise source of the contamination. Matejek v. Watson et al., Dkt. No. A-4683-14T1 (N.J. Super. Ct. Mar. 3, 2017).  In doing so, the Appellate Division adopted an expansive view of the Chancery Division’s power to fashion an equitable remedy when the letter of the law, in this case New Jersey’s Spill Compensation and Control Act (Spill Act), does not provide for one. Read More »

Share | Email| Comments|  Topics: Contamination, Contribution, Declaratory Relief, Equity, New Jersey, Real Estate, Spill Act, Storage Tank

Last week, a federal district court in Alabama rejected motions to dismiss a RCRA declaratory judgment and injunctive relief action filed by an environmental interest group against a group of defendants including an Alabama manufacturer that formerly used and disposed of materials containing perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”). Tennessee Riverkeeper, Inc. v. 3M Co. et al., No. 16-1029-AKK (Feb. 10, 2017 N.D. Ala.).  This decision follows a chain of increasing regulatory and private scrutiny of PFOA and PFOS.  In May 2016, EPA released more stringent drinking water standards for PFOA and PFOS, and firms that use, used, or disposed of one or both of the chemicals are frequently becoming the targets of regulatory and private enforcement efforts like this one. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Cleanup, Contamination, Drinking Water, Landfill, NPDES, RCRA, Water

The Clean Water Act (“CWA”) generally forbids discharging contaminated effluent into waters of the United States unless the discharger holds a National Pollution Discharge Elimination System (“NPDES”) permit. Once a discharger holds a permit, they are shielded from discharge related liability- unless, as the Fourth Circuit observed in the recent case of Ohio Valley Environmental Coalition v. Fola Coal Company, LLC, No. 161024 (4th Cir., 1/04/2017), the permit holder is noncompliant. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Contamination, Fourth Circuit, NPDES, Permits, Water

The drinking water crisis in Flint, Michigan has led to a series of lawsuits brought on behalf of Flint residents. In two similar circumstances, and most recently on February 2 of this year in the case of Mays v. Snyder, No. 15-14002 (E.D. Mich. Feb. 2, 2017), the United States District Court in the Eastern District of Michigan granted motions to dismiss complaints that alleged that state officials had violated residents’ constitutional rights by exposing them to contaminated water.  In both instances, the court held that the residents’ constitutional claims were precluded by the Safe Drinking Water Act (“SDWA”).   Read More »

Share | Email| Comments|  Topics: Drinking Water, Michigan, Preemption, Safe Drinking Water Act, Water

In the latest development in the ongoing dispute between EQT Production Company (“EQT”) and the Pennsylvania Department of Environmental Protection (“DEP”) over DEP’s calculation of continuing violations of the Clean Streams Law (“CSL”), the Pennsylvania Commonwealth Court held that Section 301 of the CSL prohibits acts or omissions resulting in the initial active discharge or entry of industrial waste into waters of the Commonwealth, and does not authorize ongoing penalties for the continuing presence of that industrial waste in waters of the Commonwealth after its initial entry.  The Commonwealth Court’s decision in this case, EQT Production Co. v. Dept. of Envt’l Prot., No. 485 M.D. 2014 (Jan. 11, 2017), comes over one year after the Pennsylvania Supreme Court decided EQT Production Co. v. Dept. of Envt’l Prot., 130 A.3d 752 (Pa. 2015), which we reported on, holding that EQT may be permitted to challenge DEP’s continuing-violation interpretation in the Commonwealth Court before the Pennsylvania Environmental Hearing Board decides and imposes the ultimate penalty, given the threat of ballooning penalties under DEP’s ongoing-violation interpretation.  Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, Civil Penalties, Clean Streams Law, Decisions of Note, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection

Last week, the United States Court of Appeals for the Tenth Circuit ruled that a PRP’s bankruptcy settlement of its CERCLA liability did not bar that PRP from later seeking contribution for a share of the settlement – despite the bankruptcy court’s determination that the settlement represented the PRP’s “fair share” of CERCLA liability.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, Superfund, Tenth Circuit

Last week, the U.S. District Court for the District of New Jersey denied Alcoa Domestic LLC’s request that the court dismiss claims against it regarding a previously owned site, finding that Alcoa may be in breach of the Purchase and Sales Agreement for the site and thus still liable for contamination caused by the removal of materials from the site. The case, Borough of Edgewater v. Waterside Construction, LLC et al., Civil Action No. 14-5060 (D.N.J. December 14, 2016), concerns the Borough of Edgewater’s endeavor to remediate contamination at Veteran’s Field in Edgewater, New Jersey in 2012.  A New Jersey contractor, Defendant Waterside Construction, LLC (and several other interrelated companies, collectively, “Waterside”), was awarded the contract for the remediation, which required Waterside to import clean stone to be used as fill in certain areas of the Veteran’s Field site.  Subsequent inspections revealed that the fill was contaminated, and Waterside admitted that the fill material originated from the former Alcoa Site, which is contaminated. Read More »

Share | Email| Comments|  Topics: Breach of Contract, CERCLA, Cleanup, Cost Recovery, Defense Costs, Indemnification, New Jersey, Real Estate, Remediation, Spill Act, Superfund

In the latest development in Olin Corporation v. Insurance Co. of North America, No. 1:84-CV-01968, (S.D.N.Y., 11/21/2016), a 30-plus year old case between plaintiff Olin Corporation (“Olin”) and its insurance provider, defendant Insurance Company of North America (“INA”), a judge of the Southern District Court of New York ultimately ordered the insurer to reimburse Olin $1.7 million for litigation costs it incurred in connection with a 2003 lawsuit concerning hazardous waste contamination at one of Olin’s properties originating in the 1950s. Read More »

Share | Email| Comments|  Topics: Indemnification, Insurance, Insurance Coverage, New York

In the recent decision of Cole v. Marathon Oil Corporation, Case No. 16-10642 (E.D. Mich. Oct. 25, 2016), a district court in the Eastern District of Michigan dismissed, in its entirety, a putative class action lawsuit against a refinery operated by the Marathon Oil Corporation (“Marathon”).  The court dismissed two of the complaint’s three common law claims as time-barred under Michigan law because the complaint failed to plead a “plausible” basis for the court to infer that the claims accrued within the limitations period, and the third cause of action, strict liability, was dismissed on the ground that it is not an independently-recognized cause of action in Michigan.  The decision suggests that, at least under Michigan law, plaintiffs in tort cases must allege more than mere ongoing harm when the allegations on the face of the complaint do not anticipate and provide a plausible basis to avoid an obvious, although unstated, statute of limitations problem. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Emissions, Hazardous Air Pollutants, Medical Monitoring, Michigan, Negligence, Nuisance, Statute of Limitations, Tolling, Toxic Torts