Under the Clean Water Act (CWA), a TMDL establishes the maximum amount of each pollutant that an impaired water segment can receive while still meeting identified water quality standards. After EPA receives a proposed TMDL from the state, it has a non-discretionary duty to either “approve or disapprove” the TMDL. See 33 U.S.C. § 1313(d)(2). If EPA approves the TMDL, it becomes effective. If EPA disapproves the TMDL, it must produce and issue its own TMDL within thirty days. Just before the close of 2019, the Ninth Circuit affirmed the decision of the District Court for the Western District of Washington to compel the Environmental Protection Agency (EPA) to issue a temperature total maximum daily load (TMDL) for the Columbia and Snake Rivers. Columbia Riverkeeper v. Wheeler, No. 18-35982 (9th Cir., Dec. 20, 2019). At issue in the litigation was whether the “constructive submission doctrine” applied when Washington and Oregon failed to submit required temperature TMDLs and whether that failure triggered a non-discretionary duty for EPA to issue the TMDL itself. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Ninth Circuit, TMDL, Water

Last week the Supreme Court of Montana held that there is no implied private right of action for judicial enforcement under the Montana Water Use Act (Act).  In Lyman Creek, LLC v. City of Bozeman, DA 19-0112 (Mont. 2019), the Court determined that the Act reserves the right of enforcement only for the Montana Department of Natural Resources and Conservation (DNRC), the attorney general, and the county attorneys. Read More »

Share | Email| Comments|  Topics: Enforcement, Montana, Private Right of Action, Water, Water Use

On April 9, 2019, Judge John Z. Lee of the District Court for the Northern District of Illinois, Eastern Division denied the City of Evanston’s motion for a preliminary injunction against two utility companies in a RCRA action that sought to compel the utility companies to investigate and remediate polycyclic aromatic hydrocarbon (PAH) contamination in the area.  After a lengthy evidentiary hearing spanning eight days, Judge Lee found that the city had failed to meet its overall burden of proving likelihood of success on the merits, in part because he believed one of the city’s main theories of contamination to be “simplistic.”  (Memorandum Opinion and Order, at *4, City of Evanston v. Northern Illinois Gas Company, No. 16 C 5692 at *19 (N.D. Ill. Apr. 9, 2019)). And on May 16, 2019, the Seventh Circuit Court of Appeals affirmed a similar decision in Varlen Corporation v. Liberty Mutual Insurance Company, No. 17-3212 (7^th Cir. May 16, 2019), excluding an expert witness and granting summary judgment to the defendant because the expert's testimony regarding the cause of contamination was found to be unreliable, having failed to meet the Daubert standard. Read More »

Share | Email| Comments|  Topics: Causation, Contamination, Duty to Defend, Expert Witness, Groundwater, Illinois, Insurance, Insurance Coverage, RCRA, Seventh Circuit, Water

In an opinion and order released last week, the MDL court in In re Gold King Mine Release denied response contractors’ motions to dismiss. No. 1:18-md-02824-WJ, 2019 WL 1282997 (D. N.M. March 20, 2019) (slip opn.). The 2015 Gold King Mine release sent over three million gallons of contaminated wastewater into rivers in Colorado, New Mexico, and Utah. In the wake of the spill, the State of New Mexico, the State of Utah, the Navajo Nation, and multiple individual plaintiffs filed suit against the mine’s owner, the federal government, EPA, and EPA response contractors, Weston Solutions, Inc. and Environmental Restoration, LLCC (the “Response Contractors”). The court’s opinion, which allows the majority of plaintiffs’ CERCLA and tort claims to move forward, comes on the heels of a similar order denying the Federal Government’s motions to dismiss. See In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). Our blog post discussing that earlier opinion and order can be found here.    Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Citizen Suit, Clean Water Act, Cleanup, Colorado, Consultant Liability, Contamination, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Response Action Contractors, Superfund, Trespass, Tribal Lands, Utah, Water

In an opinion and order released last week, the United States District Court for the District of New Mexico denied the federal government’s motions to dismiss claims relating to the 2015 Gold King Mine wastewater spill. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). The district court was not convinced by the government’s argument that it was entitled to sovereign immunity and that the plaintiffs’ complaints were inadequate. It denied the motions and allowed all but one of the plaintiffs’ claims to proceed to discovery. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Cleanup, Colorado, Contamination, EPA, Federal Tort Claims Act, Gold King Mine, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Sovereign Immunity, Superfund, Trespass, Tribal Lands, Utah, Water

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 »

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On January 15, the United States District Court for the Central District of California granted Defendants’ Motion for Summary Judgment in Arconic, Inc., et al. v. APC Inv. Co., Case No. CV-14-6456-GW (C.D. Cal. Jan. 15, 2019), ruling that Plaintiffs’ contribution claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 113(g)(3) were barred by the applicable three-year statute of limitations. What makes the decision noteworthy is that the Court found that the limitations period began to run ten years before the Plaintiffs entered into the Consent Decree with EPA and the State of California to undertake the remediation giving rise to the contribution claim. Read More »

Share | Email| Comments|  Topics: California, CERCLA, Consent Decree, Contamination, Contribution, Ninth Circuit, Remediation, Removal, Statute of Limitations, Superfund, 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

Last week, the Sixth Circuit Court of Appeals held in two separate cases that the Clean Water Act does not extend liability to pollution that reaches navigable waters via groundwater. Kentucky Waterways All. v. Kentucky Utilities Co., No. 18-5115, 2018 WL 4559315, (6th Cir. Sept. 24, 2018); Tennessee Clean Water Network v. Tennessee Valley Auth., No. 17-6155, 2018 WL 4559103 (6th Cir. Sept. 24, 2018). Instead, the court adopted the bright line rule that for a point source discharge to be actionable under the CWA, it must “dump directly into” navigable waters. The decisions departed from the Fourth and Ninth Circuits’ rulings earlier this year, which held that a “direct hydrological connection” between a discharge and waterbody was sufficient for CWA liability. Our prior blog post on the Fourth Circuit’s decision, Upstate Forever et al. v. Kinder Morgan Energy Partners LP et al., No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018) can be found here. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Coal Ash, Contamination, Effluents, Groundwater, Navigability, Rapanos, Sixth Circuit, Water

In the latest development in parallel cases captioned EQT Prod. Co. v. Department of Environmental Protection which have been moving through Pennsylvania state courts and the Environmental Hearing Board ("EHB") since early 2014, the Commonwealth Court of Pennsylvania affirmed the EHB’s assessment of penalties totaling $1,137,295.76 against the hydraulic fracturing company, EQT Production Company (“EQT”), for contamination to groundwater arising from a leaking wastewater impoundment. EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 844 C.D. 2017, 2018 WL 4289310 (Pa. Commw. Ct. Sept. 10, 2018). Specifically, on September 10, 2018, the Commonwealth Court held that the EHB did not commit an error of law when it held that, under Clean Streams Law (“CSL”), penalties could be assessed for every day that contamination entered the groundwater from soils “through fundamental hydrologic principles,” even if the initial spill event had ceased and there was no direct evidence of daily transmission of contamination from soil to groundwater. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Case Update, Civil Penalties, Clean Streams Law, Contamination, Declaratory Relief, EHB, Groundwater, Hearing Board, Marcellus Shale, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Water