Recent Sierra Club v. Dominion Power Lawsuit Could Open the Flood Gates for Clean Water Act Citizen Suits

The U.S. EPA’s National Pollutant Discharge Elimination System (“NPDES”) program is the cornerstone of Congressional efforts to reduce water pollution from point source discharges. This year marks the 44th anniversary of the 1972 Clean Water Act Amendments, which first established the NPDES program, but after all these years the scope of the program is still a source of constant litigation. One of the most recent and significant lawsuits to address the scope of the NPDES program is Sierra Club v. Virginia Electric and Power Company [d/b/a Dominion Virginia Power], No. 2:15-cv-00112, which is currently pending in federal court in the Eastern District of Virginia. This case and a series of similar recent lawsuits throughout the country have the potential to greatly expand the NPDES program and the type of discharges that must be permitted.

The Dominion court held a four-day bench trial in June of this year, and the court could issue a decision any day now. Although the court’s decision would not apply in other jurisdictions, the outcome will be important to watch for several reasons:

  1.  This is not an isolated lawsuit. There have been several other citizen suits in just the last few years alleging that discharges to groundwater have violated the Clean Water Act. It is entirely conceivable that there will be more citizen suits addressing this issue in the near future.
  2. The 4th Circuit has not yet addressed whether the NPDES program governs groundwater seeps. And if the court’s ultimate decision in Dominion is appealed to the 4th Circuit, the 4th Circuit could create a split with the other Courts of Appeals that only the U.S. Supreme Court could resolve.
  3. Although the Dominion lawsuit involves disposal facilities for CCR, the principles at issue could easily be applied to other types of landfills, lagoons and surface impoundments that many industrial operations utilize.

I recently published an article with more background and detail on Sierra Club v. Dominion.

Superfund Environmental Contamination Case Recently Reversed by 8th Circuit

The 8th Circuit Court of Appeals recently reversed class certification in Ebert v. General Mills, Inc. involving alleged environmental contamination. The decision highlights the complexities faced in putative class action toxic tort cases, especially those involving vapor intrusion. Ebert stresses the fact that causation, liability and damages determinations are not only inextricably linked, but also that these concepts often involve highly individualized assessments that may not be suitable for resolution in class actions.

I recently published an article on this decision with more background and detail on this decision.

EPA Committed to Preserving Formaldehyde Focus

On July 27, 2016, the EPA issued the pre-publication version of its Final Rule on Formaldehyde Standards for Composite Wood Products. The EPA worked closely with the California Air Resources Board to ensure consistency with CARB’s existing requirements for composite wood products.

Under the Final Rule, in August 2017, composite wood products sold, supplied, manufactured or imported must be labeled to be compliant under the new Toxic Substances Control Act Title VI. The EPA is also setting procedures to establish eligibility for third-party certification and accreditation bodies.

I invite you to read more about the EPA rule in an article I recently published.

Taft Environmental Attorneys Deveau and Gardner Successfully Represent Client in Insurance Coverage Dispute

On July 25, U.S. District Judge Jon E. DeGuilio denied Old Republic Insurance Co.’s motion for summary judgment against Taft client Gary/Chicago International Airport Authority. The judge ruled that the absolute pollution exclusion in 16 policies that the insurer issued to the Authority can’t be enforced under Indiana law because it doesn’t list any specifically excluded pollutants or contaminants. Taft attorneys Frank Deveau and Melissa Gardner represented Gary/Chicago International Airport Authority in this win. Deveau is quoted in the Law360 article about the case titled “Insurer’s Pollution Exclusion Not Enforceable, Judge Says.” Read the article here. (Law360 subscription required)

Bilott and Team Score Another Victory With $5.1M Verdict Against DuPont

Taft environmental partner Rob Bilott’s work against chemical pollutants in drinking water scored another victory yesterday. An Ohio federal jury awarded $5.1 million to cancer survivor, David Freeman, who says DuPont’s chemical dumping caused his cancer and found DuPont liable for actual malice. Also assisting in this most recent trial is Taft partner David Butler.

The following articles outline the latest victory in more detail:

U.S. Supreme Court Holds Clean Water Act Jurisdictional Determinations Subject to Judicial Review

A recent unanimous decision by the U.S. Supreme Court, U.S. Army Corps of Engineers v. Hawkes Co. Inc., held that an approved jurisdictional determination by the U.S. Army Corps under the Clean Water Act was a final agency action subject to judicial review. Although the scope of the court’s decision will likely be litigated in the future, it appears to provide for the first time an avenue for real estate developers, farmers and other property owners to determine with certainty if they must obtain a permit under the Clean Water Act when working in wetlands and other waters.

I recently published an article with background on the issue and more details on the decision.

NPDES Regulations: New Proposed Changes

EPA recently published a wide-ranging series of proposed changes to the National Pollutant Discharge Elimination System (“NPDES”) regulations. While EPA does not believe that its proposed revisions will generally result in new or increased workload or information collection by authorized states or the regulated community, regulated entities should familiarize themselves with EPA’s proposed changes to determine any adverse or beneficial impact on their activities.

The proposed changes cover 15 topics in the following major categories:

•    NPDES permit applications
•    The water quality-based permitting process
•    NPDES permit objection, documentation and process efficiencies
•    The vessels exclusion
•    The Clean Water Act Section 401 certification process

I recently published an article on some of the more significant changes proposed by EPA.

The below table, taken from the EPA’s May 18 proposed rule change, briefly summarizes EPA’s proposed NPDES topics for revision.

chart

FIFRA “Data Compensation” Cost Recovery Limited by Sixth Circuit Ruling

The 6th Circuit Court of Appeals recently resolved a Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) dispute between two agricultural-chemical distributors, Drexel Chemical Company and Albaugh, Inc. The dispute involved Drexel’s ability to recover certain “data compensation” costs from Albaugh pursuant to a contract between the two. The court ruled that according to the parties’ contract, only “data compensation” costs that were actually paid during the contract’s term were recoverable. In contrast, costs incurred during the contract’s term but not paid until after the contract’s termination were not recoverable. Additionally, the court ruled that the contract’s generic description of recoverable “costs” was not specific enough under Tennessee law to include attorney’s fees and arbitration costs. The court’s ruling demonstrates the importance of carefully describing the scope of “data compensation” costs in any FIFRA data cost-sharing contract.  The Drexel opinion is also notable for the 6th Circuit’s ruling regarding when a data compensation “offer to pay” is “irrevocable.” The 6th Circuit rejected Drexel’s argument that data compensation liability is irrevocable upon the mere submission of an offer to pay, thereby suggesting that an original data submitter must prove something more before establishing a right to data compensation. This ruling could have a potentially significant impact on future data compensation cases, particularly those involving companies who abandon their pesticide registrations after submitting offers to pay but before making any actual payment.

I recently published an article with more detail about this ruling, but in summary, the Drexel opinion underscores the importance of carefully delineating the scope of recoverable “data compensation” costs under FIFRA cost-sharing contracts. Because potentially millions of dollars in “data compensation” costs may be at issue, it is important for parties to expressly clarify in their cost-sharing contracts whether the submission of an offer to pay is sufficient to trigger a party’s payment obligations and whether arbitration costs and attorney’s fees are within the meaning of recoverable “data compensation” costs.

EPA Publishes Proposed Site Remediation NESHAP Rule Amendments

The EPA recently published proposed rule amendments that would subject site remediation activities performed under the Comprehensive Response and Compensation Liability Act (“CERCLA”) and Resource Conservation and Recovery Act (“RCRA”) to National Emission Standards for Hazardous Air Pollutants (“NESHAP”). The EPA is also proposing to remove the applicability requirement that a remediation site must be co-located with a facility that is regulated by other NESHAPs in order to be subject to the site remediation rule.

The EPA predicts that 69 major source facilities performing remediation under CERCLA or RCRA may become subject to the Site Remediation Rule as a result of these proposed rule changes. According to the EPA, the types of facilities most likely to be affected by the rule changes include, but are not limited to, organic liquid storage terminals, petroleum refineries, chemical manufacturing facilities, government facilities such as military operations, and manufacturing facilities using organic materials.

The EPA is seeking comments on these potential changes by June 27, 2016.

I recently published an article with more detail on the proposed rule amendments and background on the current exemptions.

LexBlog