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.


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.

Taft Environmental Attorney Bilott to Speak at Troubled Waters Drinking Water Conference

Bilott.Robert_hiresRob Bilott will present at the Troubled Waters Drinking Water Conference in New York on May 23. The conference will focus on Perfluorooctanoic Acid (PFOA) and lead in drinking water. It will explore the history with perfluorinated chemicals (PFCs), federal and state responses to the PFOA contamination in Hoosick Falls, groundwater concerns in other jurisdictions, public health advisories, lead sampling in homes and schools, measures underway to address both PFCs and lead in drinking water (regulatory, legislative, litigation) and how residents can limit their exposure to both contaminants going forward.

Rob has been a frequent speaker on this topic and mentioned or quoted in numerous articles recently about the widely-publicized litigation against DuPont relating to PFOA/C8 contamination.


A Tale of Little Repose: Asbestos Claims and the Indiana Supreme Court

Injuries caused by asbestos may not manifest until many years after exposure. Given this long latency period, the Indiana Supreme Court and General Assembly have frequently grappled with how to appropriately ensure that asbestos plaintiffs get a day in court while also ensuring that manufacturers are not forced to defend stale claims. The ongoing dialogue between the court and legislature on this topic has charted a meandering course leaving litigants unsure of the value of their claims and defenses. Much to the chagrin of potential plaintiffs and defendants alike, limits on asbestos actions were invalidated, resurrected and then finally invalidated again in Myers v. Crouse-Hinds Div. of Cooper Indus., Inc.

There have been three reversals on the same point of law in less than 20 years by the Indiana Supreme Court, which normally is a model of stability. Although the court does not hesitate to change common law when the time is right, it does not usually chart the circular course it has taken with the asbestos statute of repose.  I recently published an article discussing these cases and the impact on asbestos claims going forward.

Bilott to Speak at CBA Event on DuPoint Litigation

On May 20, Taft environmental attorney Rob Bilott will give a presentation to the Cincinnati Bar Association’s Environmental Law Group about the widely-publicized litigation against DuPont relating to PFOA/C-8 contamination. He will speak about the issues surrounding PFOA/C-8 contamination from a scientific, regulatory and legal perspective, including how PFOA/C-8 contamination has spread throughout the world over the last 50 years.

We invite you to attend this presentation and register here.

Taft Forms Brownfield and Site Development Team

Taft has formed a team focused on brownfield and site development of property that has the presence or potential presence of environmental contamination. The group is dedicated to assisting individuals, businesses, real estate developers, municipalities and others with the acquisition, disposition and redevelopment of real property for reuse, revitalization or restoration.

The team represents many different types of clients involved with the acquisition, disposition and redevelopment of brownfield sites and provides solutions on how to address potential liability. Taft environmental attorney David Guevara serves as chair of the group.

Read the news release here.

Taft Environmental Attorney Gardner Publishes Article in the Indiana Lawyer

Gardner_Will_HiresTaft environmental attorney Will Gardner’s article “Judicial deference and the Clean Power Plan” was published in the Indiana Lawyer on March 9. The article discusses seminal administrative law cases during Justice Scalia’s career and the potential future of the Clean Power Plan.

Will is a frequent contributor to Taft’s Environmental Law Insight Blog and has significant experience in air quality law. His practice focuses on advising clients regarding their legal obligations under state and federal environmental laws, evaluating environmental liabilities in real estate and business transactions and working with environmental consultants and clients to manage remediation projects.

Oversight by IDEM May Establish NCP Compliance

A Dec. 4, 2015 ruling by the Northern District of Indiana represented two firsts by an Indiana court. In Valbruna Slater Steel Corp. v. Joslyn Manufacturing Co., the court granted summary judgment for a plaintiff who claimed that the costs it incurred for cleanup were both necessary and consistent with the national contingency plan (NCP). The ruling upheld that a state agency’s substantial oversight of the cleanup work established consistency with the NCP and that the plaintiff’s motivation for its cleanup efforts was irrelevant to whether its costs were necessary. The amount of damages recoverable by Valbruna will be established by further proceedings in which Valbruna must show that each expenditure it seeks to recover was related to a public-health threat posed by the site and was reasonable in light of the degree of that threat. I invite you to read an article that I recently published with more detail on this case and ruling.