Since the Supreme Court issued its splintered 4-1-4 decision in Rapanos v. United States, 547 U.S. 715 (2006), district and circuit courts have grappled with how to define “wetlands” for purposes of application of the Clean Water Act.  Whether adding to the confusion or bringing clarity to the subject, the Third Circuit for the first time has weighed in on the issue in United States v. Donovan, U.S. Court of Appeals for the Third Circuit, No. 10-4295 (3rd Cir., October 31, 2011) (J. Rendell).  Donovan a land owner, defended an enforcement action on the basis that  the Clean Water Act did not apply to his actions in filling part of his property and that the Army Corps lacked jurisdiction because the wetlands at issue were not adjacent to navigable-in-fact waters.  The Third Circuit disagreed.  While Donovan may be disappointed by this decision (after litigating the issues for 15 years), the case has much more far-reaching ramifications. Read More »

Share | Email| Comments|  Topics: Army Corps, Clean Water Act, Decisions of Note, Donovan, Enforcement Action, Rapanos, Real Estate, Wetlands

In light of the recent decisions in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011) and, thereafter, Gates v. Rohm & Hass Co., 655 F.3d 255 (3rd Cir. 2011), one might have wondered whether there would ever be another federal environmental tort class certified. Well, the wait is over as on October 12, 2011, just such occurred in the Western District of Kentucky. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Decisions of Note, Farming, Hog Barn, Kentucky, Nuisance, Odors, Toxic Torts, Trespass, Waste

Last month I blogged about Sackett v. Environmental Protection Agency (10-1062), the case involving pre-enforcement judicial review of compliance orders under the Clean Water Act that will be argued before the United States Supreme Court this term. Read More »

Share | Email| Comments|  Topics: Administrative Hearing, Decisions of Note, Due Process, Enforcement Action, Informal Agency Action, ISRA, Leases, New Jersey, Real Estate

At least that may be what the defendants in Raritan Baykeeper Inc., et al. v. NL Industries, Inc. et al., are thinking after the Third Circuit gave new life to plaintiffs’ citizen suit claims seeking to compel defendants to remediate contaminants allegedly discharged into the Raritan River.  The defendants successfully argued before the district court that the court should abstain from hearing the plaintiffs’ RCRA and Clean Water Act citizen suit claims because the New Jersey Department of Environmental Protection (NJDEP) had previously entered into an administrative consent order (ACO) with NL Industries, Inc. (NL) requiring NL to investigate contamination and to perform certain remediation activities at the site.  The ACO also required NL to conduct sediment sampling in the Raritan River, which was done in 2000 and 2002.  While some of the sediment samples showed elevated levels of arsenic, copper, lead and zinc, NL concluded that off-site sources were contributing causes of the contaminated sediments.  After reviewing the sediment sample results, NJDEP issued a letter in 2004 acknowledging off-site sources were contributing to the sediment impacts, and concluding that any remedial actions directed at cleaning up the river sediments should be part of a regional clean-up effort.  Read More »

Share | Email| Comments|  Topics: Clean Water Act, Decisions of Note

In a precedential opinion issued on October 12 in the case of DeLalla v. Hanover Ins., No. 10-3933 (3rd Cir. Oct. 12, 2011), the Third Circuit finally picked a side on the question of whether a later-served defendant can remove a case filed in state court more than thirty days after the first defendant was served with the Complaint. But first, some background. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Federal Procedure, Removal, Third Circuit

On October 12, 2011, in a lengthy opinion that concludes with recognizing plaintiffs’ frustration, Judge Terrence McVerry, of the Western District of Pennsylvania, granted defendants’ motions to dismiss all claims brought by governmental plaintiffs against current and former owners of a coal-fired power plant. In United States v. EME Homer City Generation L.P., et al., the U.S. and state intervenors (Pennsylvania, New Jersey and New York) alleged that defendants violated the federal Clean Air Act (“CAA”)’s PSD (prevention of significant deterioration) and Title V requirements. The crux of plaintiffs’ arguments was that defendants failed to obtain necessary permits, and that more stringent CAA emissions standards applied to projects at the power plant’s modified units to reduce SO2 emissions. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Decisions of Note, Permits, Statute of Limitations, Title V

The Supreme Court has had a lot to say in recent years about how the lower courts should be interpreting CERCLA, but the trend appears to have ended, at least for now.  On October 3, the Court declined to review the Eighth Circuit’s decision inMorrison Enterprises, LLC v. Dravo Corp., which held that the contribution provision of § 113(f) of CERCLA provides the exclusive remedy for a PRP that incurs response costs pursuant to an administrative or judicially approved settlement under §§ 106 or 107, such as a consent decree or administrative order on consent (AOC). Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Decisions of Note, Superfund, Supreme Court

On September 29^th, the U.S. District Court for the Northern District of Georgia handed down the first significant ruling of many expected to come out of the Multi-District Litigation involving contaminated drinking water at North Carolina’s Camp Lejeune Marine Corps Base.  Judge J. Owen Forrester, who is presiding over what may end up to be thousands of lawsuits alleging illness or death associated with the tainted water, held that the United States could not rely on North Carolina’s 10-year statute of repose to obtain dismissal of a plaintiff’s claims – even though the contamination occurred well more than 10 years prior to the filing of suit. Read More »

Share | Email| Comments|  Topics: Camp Lejeune, Cases to Watch, CERCLA, Decisions of Note, Multi-District Litigation, Statute of Repose, Tolling, Toxic Torts

On January 4, 2011, the Pennsylvania Superior Court issued its opinion in Hite v. Falcon Partners, No. 197 WDA 2010, 2011 PA Super 2, holding that productive activities at premises leased for oil and gas activity were essential for the lessee to retain control of the property after the primary lease period, even though the oil and gas lease provided for an indefinite extension of the lease upon the payment of small delay rental payments. Relying on long-standing case law, the Court determined that despite the “unusual” wording of the lease at issue, the equitable principles that require such leases to be interpreted to promote development of the land and resources for the benefit of both the lessor and the lessee remained paramount. Importantly, though, both the lower court and the Superior Court left a slight opening for lessees. The trial court opined that an indefinite period for exploration was not completely foreclosed to lessees, but that the lease language must be “clear and unequivocal.” Similarly, the Superior Court noted that a lessee who wished to preserve exploration rights could enter into a lease with a significantly longer primary term. Read More »

Share | Email| Comments|  Topics: Decisions of Note, Drilling, Exploration, Leases, Oil and Gas, Real Estate, Royalties