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

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

A U.S. District Court recently considered two questions in response to a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) requesting injunctive relief while an ongoing state-court proceeding over the remediation was already ongoing: (1) whether the Court could enter injunctive relief even though the state-proceeding was ongoing; and (2) whether the Court should enter injunctive relief in light of the state-proceeding.  In the case, LAJIM, LLC, et al. v. General Electric Co., No. 13 CV 50348 (N.D. Ill. October 4, 2016), the U.S. District Court for the Northern District of Illinois first held that RCRA “plainly authorizes” injunctive relief in citizen suits, even when a state proceeding is ongoing.  But the Court found that it needed additional facts to determine whether the injunctive relief was appropriate in the case before it, and established an action plan to make such a finding.     Read More »

Share | Email| Comments|  Topics: Citizen Suit, Cleanup, Contamination, Illinois, Private Right of Action, RCRA, Remediation

Last week, a federal court in the Central District of Illinois held the owner and operator of a coal-fired power plant liable for violations of the Clean Air Act for exceeding particulate matter emission thresholds in the plant’s state operating permit.  NRDC v. Ill. Power Res., LLC, No. 13-cv-1181, 2016 U.S. Dist. LEXIS 111976 (C.D. Ill. Aug. 23, 2016).  The court found that the plaintiffs—three environmental advocacy organizations who filed suit under the citizen suit provision of the CAA—had standing to sue the plant because certain of their individual members suffered injury-in-fact where emitted pollutants that “could cause harm” were present in the witnesses’ general geographic area and the witnesses’ pleasure was somehow diminished by the presence of the pollutants, even where the witnesses could not point to an objective effect of the alleged violation. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Air Act, Emissions, Federal Procedure, Hazardous Air Pollutants, Illinois, Permits, Standing

Earlier this month, a Michigan federal judge refused to dismiss a lawsuit brought by a coalition of plaintiffs seeking to force multiple city and state defendants to fix the city of Flint, Michigan’s water supply system.  The lawsuit arose from the crisis regarding lead contamination in Flint’s water supply, which has garnered national attention.  In the decision, Concerned Pastors for Soc. Action v. Khouri, No. 16-10277 (E.D. Mich. July 7, 2016), U.S. District Judge David M. Lawson rejected numerous attacks asserted by the defendants in a motion to dismiss.  Perhaps most notably, the judge rejected the argument that the federal court should defer to the U.S. Environmental Protection Agency’s (EPA) primary jurisdiction under the Safe Drinking Water Act (SDWA).    Read More »

Share | Email| Comments|  Topics: Citizen Suit, Declaratory Relief, Drinking Water, EPA, Federal Procedure, Michigan, Safe Drinking Water Act, Subject Matter Jurisdiction, Toxic Torts, Water

Last week, the 10th Circuit Court of Appeals affirmed dismissal of a Sierra Club citizen suit against a coal-fired power plant for an alleged permitting violation of the Clean Air Act, finding that the Sierra Club’s claims were time-barred.  In the case, Sierra Club v. Okla. Gas & Elec. Co., No. 14-7065 (10^th Cir. March 8, 2016), the court held that the Sierra Club’s claims for civil penalties were statutorily time-barred because they were brought more than five years after the power plant began its unpermitted modification of a boiler, an action which the Sierra Club claims violated the Prevention of Significant Deterioration (PSD) program under the Clean Air Act.  The court also affirmed dismissal of the group’s claims for injunctive and declaratory relief because those legal claims were predicated on the same facts as the time-barred civil penalties.  The court’s interpretation of the statute of limitations as applied to the PSD program is consistent with a 2011 district court decision in the 3rd Circuit, United States v. EME Homer City Generation L.P., et al., which we reported on here. Read More »

Share | Email| Comments|  Topics: Air, Citizen Suit, Civil Penalties, Clean Air Act, Statute of Limitations, Tenth Circuit, Tolling

Yesterday in two parallel class action interlocutory appeals, the Sixth Circuit joined the Third Circuit in holding that the Clean Air Act does not preempt state common law tort claims related to air pollution.  The first case, Merrick v. Diageo Americas Supply, Inc., involved excess ethanol emissions from Johnny Walker and J&B brand whiskey distilleries located in Louisville, Kentucky that allegedly caused the growth of a specific type of mold on neighboring properties.  The proposed class of local property owners asserted claims for negligence, nuisance, trespass, and injunctive relief, relying on violations of a local ordinance that prohibited air pollution which caused “injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public.”  The second case, Little v. Louisville Gas & Electric Co., involved dust and coal ash emissions from a coal-fired power plant which effected local residents, and which were the subject of multiple notices of violation issued to the power company.  The class action claims in Little included claims for violations of the federal Clean Air Act and the Resource Conservation and Recovery Act, as well as state common law claims for nuisance, trespass, negligence, negligence per se, and gross negligence.  In both cases, United States District Court for the Western District of Kentucky allowed the common law claims to survive defendants’ motions to dismiss, ruling that the common law claims were not preempted by the federal Clean Air Act.   Read More »

Share | Email| Comments|  Topics: Case Update, Citizen Suit, Class Actions, Clean Air Act, Decisions of Note, Emissions, Negligence, Nuisance, Preemption, Sixth Circuit

On March 13, 2013, the First Circuit issued its opinion in Paolino v. JF Realty, LLC,No. 12-2031 (1st Cir. Marc. 13, 2013), reversing in part the District Court’s dismissal of a Citizen’s Suit brought pursuant to the Clean Water Act, and in so doing addressing an “issue of first impression in the First Circuit as to the standard for measuring the sufficiency of the mandatory pre-suit notice which must be given” before such a suit can be brought.   Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Federal Procedure, Procedure

As most of our readers know, the Resource Conservation and Recovery Act (RCRA)gives the EPA control over  the generation, transportation, treatment, storage, and disposal of hazardous waste, often described as “cradle-to-grave” coverage of hazardous wastes.  One of its provisions, 42 U.S.C. § 6972(a)(1)(B), allows any person to bring suit against another “who has contributed . . . to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Read More »

Share | Email| Comments|  Topics: Citizen Suit, Contamination, Cost Recovery, RCRA, Waste