Articles Posted in Environmental

Pillsbury attorneys Anthony Cavender and Amy Pierce recently published their Law360 article titled 6th Circ. Creates Deep Divide Over Reach Of CWA. Their article discusses recent decisions from the federal appellate courts that have raised new questions about the scope of Clean Water Act-related (CWA) issues that once seemed settled. These issues include, for example

• Whether discharges into groundwater that reach navigable waters are subject to the jurisdiction of the Environmental Protection Agency or the U.S. Army Corps of Engineers and, therefore,  require the issuance of a National Pollution Discharge Elimination System permit.
• Whether a regulated “point source” can also include landfills and other waste disposal and storage areas used for handling coal ash waste.
• Whether there are temporal limitations to the invocation of “ongoing violations” of the CWA when the initial violations were corrected years ago.

These decisions have created uncertainty within the regulated community affecting many industries and commercial activities. For that reason, and the fact that petitions for certiorari are piling up at the U.S. Supreme Court, the Court is expected to decide to review these cases and resolve this stark conflict between the circuits.

On September 21, 2018, the U.S. Court of Appeals for the Ninth Circuit decided the case of Tin Cup, LLC v. U.S. Army Corps of Engineers. A divided panel of the Court of Appeals (although all members concurred in the result) held that legislative language in a 1993 appropriations act does not require the U.S. Army Corps of Engineers (Corps) to continue to use its 1987 Clean Water Act (CWA) wetlands guidance beyond 1993. The Ninth Circuit noted that it approaches the interpretation of budget bills somewhat differently.

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The Clean Water Act (CWA) authorizes citizen suits to enforce the provisions of the law which requires a permit to discharge a pollutant from a point source into navigable waters. Earlier this year, the U.S. Court of Appeals for the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, held that discharges into groundwater, not surface water, could also trigger the regulatory authority of the CWA if there was a hydrological connection between the groundwater and the navigable, surface, waters. In its a closely-watched case, Sierra Club v. Virginia Electric & Power Company (“VEPCO”), which also involved discharges into groundwater, the Fourth Circuit was bound by this this new and controversial precedent (a Supreme Court review is very likely), but the plaintiffs in the VEPCO case could not establish that the landfill and the settling ponds used by VEPCO were “point sources”—another important element that must be established.

Unless this decision is reversed by an en banc Fourth Circuit ruling or the Supreme Court, VEPCO will avoid millions of dollars in cleanup costs, and this is also a restatement of the limiting conditions placed on CWA citizen suits.

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On August 17, the U.S. Court of Appeals for the District of Columbia Circuit, in the case Air Alliance Houston, et al., v. EPA, vacated the Environmental Protection Agency’s (EPA) “Delay Rule.” The so-called “RMP” ( for risk management plan) rule was substantially amended after a number of plant explosions took place in the past few years. The amended rules were published a week before the new administration took office EPA had delayed the effective date of the Chemical Disaster Rule of 2017 on three separate occasions: January 26, 2017, March 16, 2017, and ultimately to June 14, 2017.

The Court of Appeals held that the actions taken by EPA were not authorized under the relevant provisions of the Clean Air Act (CAA) and were otherwise arbitrary and capricious. The Court of Appeals vacated the Delay Rule of June 14, 2017.

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The U.S. Environmental Protection Agency (EPA) recently released its Superfund Task Force Recommendations 2018 Update (the Update). The Superfund Task Force was established by former EPA Administrator Scott Pruitt to “provide recommendations on an expedited timeframe on how the agency can restructure the cleanup process, realign incentives of all involved parties to promote expeditious remediation, reduce the burden on cooperating parties, incentivize parties to remediate sites, encourage private investment in cleanups of sites and promote the revitalization of properties across the country.” Over the years, thousands of sites have been listed on EPA’s National Priority List (NPL) of Superfund sites, but the process by which listed sites are cleaned up and finally removed from the NPL has been agonizingly slow. The process is governed by the National Contingency Plan rules. The Update states that, as of July 3, 2018, there are 1,346 sites listed on the NPL, and overall, 399 sites have been removed from the NPL.

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