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Showing 30 posts in Permits.

This Blog Post was authored by Brielle Brown, a summer associate.

A three-judge panel of the Third Circuit held on June 21, 2021 that air emission exceedances governed by a state air permit and duly reported to state or local authorities pursuant to the permit need not be reported again to the United States Environmental Protection Agency (“EPA”) pursuant to the Section 103 reporting requirements of the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Clean Air Council v. U.S. Steel Corp., No. 20-2215, 2021 U.S. App. LEXIS 18377, at *15 (W.D. Pa. 2021); 42 U.S.C. § 9603. The court’s reasoning came down to an interpretation of CERCLA that the phrase “subject to” was intended to mean “governed or affected by” rather than “obedient to.” Id. at *12. Thus, air emissions that violate relevant Clean Air Act permits are nevertheless “subject to” that permit and therefore exempt from CERCLA’s reporting requirement. Id. Read More »

This Blog Post was authored by Timothy Johnson, a summer associate.

Earlier this month, the Commonwealth Court of Pennsylvania concluded that the Pennsylvania Environmental Hearing Board (EHB) erred in its dismissal of the petitioners’ appeal of the approval of a compressor station plan by the Pennsylvania Department of Environmental Protection (PADEP) for lack of subject matter jurisdiction. Cole v. Pennsylvania Dep't of Env't Prot., No. 1577 C.D. 2019, 2021 WL 2420667 (Pa. Cmwlth. 2021). In doing so, the Court held that Section 717r(d)(1) of the federal Natural Gas Act, which provides that federal courts have exclusive jurisdiction over “civil actions” for review of an approval or denial of a permit or approval required by federal law, does not preclude state administrative agency review of state permitting decisions. Accordingly, the EHB’s review of the matter was not preempted. Read More »

On February 18, 2021, the Court in Lower Susquehanna Riverkeeper, et al., v. Keystone Protein Co., No. 1:19-CV-01307, 2021 WL 632734, at *1 (M.D. Pa. Feb. 18, 2021), denied a factory owner’s motion for summary judgment based on its holding that the Clean Water Act (“CWA”) and the Pennsylvania Clean Streams Law (“PCSL”) are not “roughly comparable” statutes. In so deciding, the plaintiffs’ citizen’s suit, alleging violations under the CWA, was allowed to proceed notwithstanding that the defendant factory had settled litigation with the Pennsylvania Department of Environmental Protection (“PADEP”) for the same violations under the PCSL. Read More »

Reversing the Fourth Circuit, the Supreme Court on Monday issued its opinion in United States Forest Service v. Cowpasture River Preservation Association, No. 18-1584 (June 15, 2020). In a 7-2 decision, Justice Thomas wrote for the majority that the Appalachian National Scenic Trail’s passage through United States National Forest land is best viewed as a grant of an easement to the National Park Service rather than a transfer of ownership of the underlying land. In doing so, the Court upheld the Forest Service’s right to permit a pipeline to run beneath the Trail under the Mineral Leasing Act (MLA). Read More »

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 »

In an opinion issued on March 24, 2020, the District Court for the District of Delaware held that pre-petition environmental fines accrued by Exide Technologies were dischargeable debts in Exide’s Chapter 11 bankruptcy case and that penalties that Exide accrued during the pendency of its bankruptcy case were not entitled to administrative priority. South Coast Air Quality Management District v. Exide Technologies, Civ. No. 19-891 (D. Del. March 24, 2020). The case suggests that environmental penalties assessed against a corporation, even if premised in part upon false reporting, may be dischargeable in a bankruptcy case and further, that additional penalties not based on cleanup costs during the bankruptcy will not receive special treatment by the courts. Read More »

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 »

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 »

On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

In August 2016, pursuant to § 7601 of the Clean Air Act, EPA issued its proposed Amendments to Regional Consistency Regulations (“Amended Regulations”), 40 C.F.R. §§ 56.3-56.5 (2017). The Amended Regulations state that, for purposes of implementing the Clean Air Act nationwide, EPA would only apply decisions of the U.S. Supreme Court and U.S. Court of Appeals for the D.C. Circuit uniformly:

Only decisions of the U.S. Supreme Court and decisions of the U.S. Court of Appeals for the D.C. Circuit Court that arise from challenges to ‘nationally applicable regulations . . . or final action,’ as discussed in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), shall apply uniformly.

In National Environmental Development Association’s Clean Air Project v. EPA, No. 16-1344 (D.C. Cir. June 8, 2016), industry groups (“Petitioners”) challenged the Amended Regulations in the D.C. Circuit on the basis that EPA is charged with implementing the Clean Air Act uniformly nationwide and must establish mechanisms for resolving judicially-created inconsistencies, as opposed to ignoring them. In the decision rendered earlier this month, the D.C. Circuit denied the petitions for review and upheld the Amended Regulations. Read More »