Today, the Supreme Court altered Clean Water Act jurisprudence when it vacated and remanded a closely-watched Ninth Circuit decision which pertained to the federal government’s authority to oversee of the migration of pollution through groundwater to navigable waters. See County of Maui, Hawaii v. Hawaii Wildlife Fund et al., No. 18-260, 590 U.S. ____ (Apr. 23, 2020). In writing for the 6-3 majority, Justice Breyer presented the central issue of the litigation as “whether the [Clean Water] Act ‘requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source,’ here, ‘groundwater.’” Id. at 1 (internal citations omitted). The Court held that a permit issued under the Clean Water Act is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” Id. Because the “functional equivalent” standard is slightly amorphous, the Court introduced several factors to aid courts, the Environmental Protection Agency (EPA), and the regulated community in making permitting determinations. See Breyer Factors, below. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Contamination, Effluents, Groundwater, NPDES, Permits, Supreme Court, United States Supreme Court, Water

The adage “you can’t put the toothpaste back in the tube” has manifested itself in two recent federal court decisions. Under separate theories, both the Second Circuit and the District Court of the District of Columbia have issued decisions that highlight the difficulty environmental groups faced in challenging energy infrastructure projects that have been completed during the course of litigation. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Citizen Suit, D.C. Circuit, Energy, Marcellus Shale, NEPA, New York, NPDES, Oil and Gas, Pipelines, Second Circuit

This Post was authored by Andrew LeDonne, a MGKF summer associate. 

On June 11, 2019 the Commonwealth Court of Pennsylvania upheld a decision by the Pennsylvania Environmental Hearing Board (“EHB”) denying the Sierra Club’s application for fees and costs under section 307(b) of the Clean Streams Law. Sierra Club v. Dep't of Envtl. Prot., 2019 WL 2426771 (Pa. Commw. Ct. 2019).

On September 1, 2016, the EHB consolidated two third-party appeals filed by the Sierra Club to challenge an National Pollution Discharge Elimination System (“NPDES) permit and a Water Quality Management (“WQM”) permit issued by the Pennsylvania Department of Environmental Protection (“DEP”) to Lackawanna Energy Center, LLC (“LEC”). In April 2017, LEC redesigned its powerplant to reduce the amount of industrial wastewater generated by the facility such that the waste could be transported by truck off-site for treatment.  DEP issued a permit modification to LEC because, as a result of the changes to its planned facility, LEC no longer required either the WQM permit or the industrial wastewater discharge portion of its NPDES permit. In light of these changes, all parties moved to dismiss Sierra Club’s appeal. After the EHB dismissed the appeal, Sierra Club petitioned for attorneys’ fees and litigation costs from DEP under section 307(b) of the Clean Steams Law, which the EHB denied after holding an evidentiary hearing on the fee petition. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Streams Law, Commonwealth Court, Fees, Hearing Board, NPDES

Last month in the case Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, et al., No. C17-5016 BHS (W.D. Wa. Jan. 31, 2019), the United States District Court for the Western District of Washington dismissed Plaintiff Puget Soundkeeper Alliance’s (“Soundkeeper”) Clean Water Act citizen suit against SSA Terminals, LLC (“SSA”) for failing to satisfy the CWA’s pre-suit notice requirements. The case addressed the novel question of whether the Soundkeeper’s “anticipatory” pre-suit notice letter to SSA, who was served with the letter before it had even taken over operations at the property in question, satisfied the CWA’s 60-day pre-suit notice requirement. The court rejected Soundkeeper’s novel theory and dismissed the CWA claim against SSA. Read More »

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

Last week, the Central District of Illinois dismissed a case wherein an environmental group sought to extend liability to a corporation based on a groundwater connection to the Middle Fork River under the Clean Water Act (the “CWA”). Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 18-cv-02148 (C.D. Ill. Nov. 14, 2018). In so doing, the court held that it was bound by the Seventh Circuit’s 1994 decision in Village of Oconomocow Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994) wherein the Circuit court had held that discharges into groundwater were not regulated under the CWA. The district court’s decision is in line with the Sixth Circuit’s recent decisions in Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, (6th Cir. Sept. 24, 2018) and Tennessee Clean Water Network v. Tennessee Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018), discussed by this blog here and in contrast to the Fourth Circuit’s decision in Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018), discussed by this blog here. Read More »

Share | Email| Comments|  Topics: Clean Water Act, Coal Ash, Contamination, Groundwater, NPDES, Permits, Seventh Circuit, Water

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

Share | Email| Comments|  Topics: Clean Water Act, Drilling, Effluents, EPA, Ninth Circuit, NPDES, Oil and Gas, Permits, Rapanos, Water

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 »

Share | Email| Comments|  Topics: Administrative Procedures Act, Clean Water Act, Federal Procedure, NPDES, Permits, Procedure, Supreme Court, Water, Wetlands

The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Due Process, EHB, Energy, Federal Procedure, Hearing Board, Natural Gas Act, NPDES, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

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