Gravel2Gavel Construction & Real Estate Law Blog

Tuesday, Pillsbury attorneys Matt Morrison and Bryan Stockton published their client alert Recent Cases on Clean Air Act Preemption of Common Law Torts Upend Conventional Wisdom. The Alert discusses two recent appellate-level decisions allowing state common law tort claims against an intrastate emitting source to avoid Clean Air Act (CAA) preemption, decisions that have surprised many CAA litigators. The outcome in both Bell v. Cheswick Generating Station, 734 F. 3d 188 (3d Cir. 2013), and Freeman v. Grain Processing Corporation, 848 N.W.2d 58 (Iowa 2014)–as well as the Supreme Court’s recent denial of certiorari in both cases–was unexpected to many because the Supreme Court has held previously that the CAA preempts similar tort claims based on federal common law. Stationary sources should be aware that some plaintiffs may be more inclined to attempt to raise state law tort claims, regardless of ultimate merit.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Matt Morrison or Bryan Stockton, the authors of this blog.

The Sixth Circuit Court of Appeals has ruled that ICG Hazard, LLC’s Clean Water Act (CWA) general permit defense, located in the CWA at 33 U.S.C. 1342(k), shielded the mining company from a CWA enforcement lawsuit filed by the Sierra Club. The case is Sierra Club v. ICG Hazard, LLC, decided January 27, 2015. Relying on the Fourth Circuit Court of Appeal’s 2001 ruling in Piney Run Preservation Association v. County Commissioners, 268 F.3d 255 (4th Cir. 2001), a divided panel of the Court of Appeals held that the general permit issued pursuant to delegated authority by the Kentucky Division of Water shielded ICG Hazard from this lawsuit. The pollutant in question is selenium, and the Court of Appeals held that the agency was aware of the potential for discharges from ICG Hazard’s surface mining operations. The Court of Appeals also held that the permit shield applies to both individual and general National Pollutant Discharge Elimination System (“NPDES”) permits. Moreover, the provisions of the CWA presumably trump contrary provisions of Surface Mining Act.
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In a very long opinion (111 pages), making rulings on motions for summary judgment and the controverted exclusion of expert witness testimony, the U.S. District Court for the Eastern District of Washington held that the manure management practices of a number of large dairy operations in Washington State generated dangerous amounts of what the District Court determined to be solid waste regulated under the Resource Conservation and Recovery Act (“RCRA”). In doing so, it concluded that the defendants in a RCRA Citizen Suit have violated RCRA’s open dumping and substantial and imminent endangerment prohibitions. The case is Community Association for the Restoration of the Environment, Inc., et al., v. Cow Palace, LLC, et al., and this decision was issued on January 14, 2015. This ruling makes the point that even innocuous, non-hazardous waste management practices can have adverse consequences if the waste is not properly managed and monitored for compliance.
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Last year, the U.S. Court of Appeals for the Sixth Circuit decided the case of Hobart Corporation, et al., v. Waste Management of Ohio, Inc., et al., 758 F. 3d 757 (2014), holding that the statute of limitation applicable for the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) cost reimbursement actions is 3 years from the effective date of an administrative settlement with EPA. Yesterday, the Supreme Court denied Hobart’s petition for certiorari.

Yesterday, I posted my client alert Reversing Course, EPA Tightens Its RCRA Hazardous Waste Recycling Rules. This Alert discusses the EPA’s harder line on its interpretation of the Resource Conservation and Recovery Act rules that govern industrial recycling following years of relative easing into these rules. A recently issued regulation makes recycling almost as heavily regulated as other hazardous waste management activities under the RCRA.