In order to bring a citizen suit in federal district court under the Clean Water Act, 33 USC  § 1365(a)(1), the plaintiff must first give “notice of the alleged violation” to the alleged violator, the EPA, and the State at least 60 days prior to commencing suit. In  Shark River Cleanup Coalition v. Township of Wall; Estate of Fred McDowell Jr., (No. 21-2060, 3d Cir. August 24, 2022), the Third Circuit Court of Appeals found that the district court erred in its finding that the notice was inadequate because it had not adequately identified the location of the alleged violation as required by the EPA regulations implementing the statutory notice requirement, but upheld the dismissal of the lawsuit on an alternate ground not reached by the district court – that the notice that was given was inadequate because it did not provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated” also as required by EPA’s regulations. 40 C.F.R. §135.3(a). Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Federal Jurisdiction, New Jersey, Statutory Notice, Subject Matter Jurisdiction, Third Circuit, Waste

Before neighboring property owners can intervene to challenge a consent decree in a remediation action, they must establish Article III standing. On August 5, 2022, The United States Court of Appeals for the Eighth Circuit affirmed the ruling of the United States District Court for the District of Minnesota and held that neighboring property owners of a chemical plant undergoing environmental remediation lacked constitutional standing to intervene to oppose an amended consent decree and remedial action plan. United States v. Reilly Tar & Chem. Corp., Slip Op. No. 20-2786 (8^th Cir. Aug. 5, 2022). The court reasoned that the entry of the amended consent decree was not a causal link of the proposed intervenors’ harm because it did not require the chemical plant to clean-up chlorinated volatile organic compounds (CVOCs) and perchloroethylene (PCE) and therefore did not alter the chemical plant’s preexisting duties regarding PCE. Id. Read More »

Share | Email| Comments|  Topics: CERCLA, Consent Decree, Eighth Circuit, Groundwater, Intervention, Solvents, Standing, Superfund

The post was authored by summer associate Nik Hansen.

The State of Delaware brought claims against former PCB manufacturer Monsanto Company for the environmental contamination caused by PCB products in Delaware waterways. On July 11, 2022, in State of Delaware v. Monsanto Co., C.A. No. N21C-09-179, the Delaware Superior Court found that the State failed to state valid claims for public nuisance, trespass, and unjust enrichment against Monsanto. In its three-part holding, the Court held that product-related public nuisance claims are not cognizable in the state of Delaware, that the State does not have standing to bring trespass claims against resources it holds in public trust, and that unjust enrichment cannot be brought as a stand-alone claim in the superior court. Read More »

Share | Email| Comments|  Topics: Contamination, Delaware, Nuisance, PCBs, Standing, Trespass