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Citizens Suits have played an important role in the enforcement of both the Clean Water Act (CWA) and the Clean Air Act (CAA), and all permittees of wastewater discharge permits and air quality permits should be aware of the significance of these Congressionally-approved remedies. While they have broad application to many routine industrial discharges, there also are limited conditions placed on their use. For instance, the CWA Citizen Suit provision, 33 U.S.C. § 1365, requires plaintiffs to provide the alleged violator 60 days’ notice before filing a lawsuit. In addition, the text of the provision of the CWA limits its application to violations of “effluent standards or limitations,” which the CWA also carefully defines by reference to Sections 1311, 1312, 1316. 1317, 1341, and 1342 of the CWA. If the subject matter of the alleged violation is not covered by these provisions, the case will usually be dismissed.

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The U.S. Court of Appeals for the Tgreeenstophird Circuit, in Group Against Smog and Pollution v. Shenango, Incorporated, affirmed the dismissal of a Clean Air Act (CAA) Citizen Suit where state regulators were engaging in an ongoing action against Shenango when GASP’s complaint was filed, and where the federal court had retained jurisdiction over a Consent Decree that had been issued. Continue reading

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In Insurance Coverage Issues for Hotel and Apartment High-Rises Damaged by Fire, Pillsbury attorneys Joseph Jean, Alexander fireHardiman, and Matthew Putorti discuss how to maximize insurance recovery when a fire damages or destroys  mixed-used hotel, retail, and apartment high-rises, as happened on New Year’s Eve at the Address Downtown Hotel in Dubai and at several other buildings in Dubai since 2012.

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In United States v. Tonawanda Coke Corp., the U.S. Court of Appeals for the Second Circuit, in an unpublished opinion released on January 11, 2016, rejected Tonawanda’s appeal of the lower court’s judgment adjudicating it guilty of criminal offenses under the Clean Air Act (CAA) and Resource Conservation and Recovery Act (RCRA), and requiring Tonawanda to fund two studies, at a cost of $12.2 million to investigate the effects of its conduct. On appeal, the Court of Appeals considered Tonawanda’s two arguments. First, Tonawanda argued that its RCRA conviction should be set aside because it did not have fair notice that its conduct was illegal and, second, that the prosecution should be barred because the relevant five-year statute of limitations had expired. The Court of Appeals dismissed the first argument, holding that Tonawanda’s counsel had not preserved this issue at trial. Regarding the second issue, the crime for which Tonawanda was convicted was the illegal storage of hazardous waste. The Court of Appeals found it was a “continuing offense” for which the “limitations clock” did not begin until December 2009, when, presumably, the illegal storage ceased. As stated by the Court of Appeals, “Congress, in enacting RCRA, employed language indicating that it understood [illegal] storage to be a continuing offense.”

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In FinCEN Targets “All Cash” Real Estate Deals in Manhattan and Miami, my colleagues Carolina Fornos, Maria Galeno, Mark Hellerer, Caroline Harcourt, Amanda Senske, and I discuss the federal Financial Crimes Enforcement Network’s (FinCEN) first Geographic Targeting Orders (GTOs) of 2016 issued on January 13. The GTOs are nyskylinedirected exclusively at U.S. title insurance companies and their subsidiaries and agents, requiring them, for a temporary period, to identify the individuals behind any entity that is used to purchase high-end residential real estate in Manhattan and Miami-Dade County, Florida, on an “all cash” basis. We discuss the immediate impact of these GTOs on these companies and what the GTOs may mean for others.

Photo:  Arturo Donate, The skyline that never sleeps… Taken July 31, 2010 – Creative Commons

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In the home stretch for 2015, Courts across the nation issued environmental decisions of note:

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Oral argument in the case of FERC v. Electric Power Supply Association green2was held in October of 2015, and a decision may be announced shortly. The controversy involves complex provisions in the Federal Power Act (FPA) and the Federal Energy Regulatory Commission’s authority under the law to regulate the practices of wholesale electricity markets, which have traditionally been considered to be reserved for state regulation. The Court of Appeals for the District of Columbia Circuit ruled against FERC, setting the stage for this appeal to the U.S. Supreme Court. Some of the limits placed on federal regulatory authority that were discussed in the recent decision of the Court in Michigan, et al., v. EPA figure prominently in the briefs filed with the Court. Continue reading

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On December 29, 2105, the Pennsylvania Supreme Court issued a ruling that may be of considerable interest to oil and gas operators in Pennsylvania. In EQT Production Company v. Department of Environmental Protection of the Commonwealth of Pennsylvania, the Court considered the “whether a company threatened by an administrative agency with ongoing, multi-million-dollarmoney2 penalties per such agency’s interpretation of a statutory regime has the right, immediately, to seek a judicial declaration that the agency’s interpretation is erroneous.” Answering the question in the affirmative, the Court held that “the impact of the Department’s threat of multi-million dollar assessments against EPC was sufficiently direct, immediate, and substantial to create a case or controversy justifying pre-enforcement judicial review via a declaratory judgment proceeding, and that exhaustion of administrative remedies relative to the issues of statutory interpretation that the company has presented was unnecessary.”  The Court also confirmed that very large civil penalty assessments may be subject to pre-enforcement judicial review in Pennsylvania state courts and that the Pennsylvania Environmental Hearing Board (PEHB) may not have exclusive jurisdiction to review these proposed penalties.

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A Wisconsin District Court, in Mary Haley, et al. v. Kolbe & Kolbe Millwork Co. Inc., No. 14-cv-99-bbc, recently denied a motion to certify a proposed nationwide class action of plaintiffs alleging their windows are defective. They claim breach of express and implied warranties under state law relating to contemplationofjusticeallegedly defective windows installed in the representative plaintiffs’ homes as far back as 1997, and four proposed subclasses across 50 states. Ruling on the plaintiff’s motion, the District Court found that they failed to satisfy the requirements of Federal Rule of Civil Procedure 23(a) (prerequisites) and (b) (types of actions). It identified numerous defects in the plaintiffs’ motion, and observed that “class certification of all of the issues in this case would be unmanageable under Rule 23(b)(2) or (3).” Even so, the Court has given the plaintiffs one final opportunity to file a request for certification, which addresses the concerns it outlined in a 48-page Opinion and Order. Whether or not this particular effort succeeds, cases such as Mary Haley should stay on the radar of industry general counsel. Wherever there is potential for class certification, there is the potential for significant potential exposure and industry-wide repercussions.
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In the fall of 2015, California Governor Jerry Brown signed into law Senate Bill 560 (Monning), a bill sponsored by the California Contractors State License Board (CSLB), that allows CSLB enforcement representatives (ERs) to issue a Notice to Appear in a California superior court enforcing a licensee’s obligation to secure valid and current workers’ compensation insurance in accordance with Section 3700.5 of the California Labor Code. Prior to enactment of SB 560, only California district attorney offices could issue citations to enforce this obligation. California law requires employers to have workers’ compensation insurance if they have even one employee, which includes a responsible managing employee (RME), and Section 7125 of the California Business & Professions Code requires all contractors with a C-39 Roofing classification to have a Certificate of Workers’ Compensation Insurance or a Certificate of Self-Insurance on file with the CSLB. California contractors and subcontractors should expect an uptick in the CSLB’s enforcement of California’s workers’ compensation insurance requirements.

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The U.S. Court of Appeals for the Eighth Circuit has distinguished decisions from the Fifth and Tenth Circuit that appear, at first blush, to be in conflict with its ruling that the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10501(b) (ICCTA), preempts state law negligence claims. In the case of Tubbs, et al., v. Surface Transportation Board, et al., decided on December 28, 2015,flood the Court of Appeals denied a petition to review an administrative decision of the Surface Transportation Board (STB) in which the STB held that the ICCTA, preempts the plaintiffs’ state-tort law claims against the BNSF Railway Company for damage caused by the flooding resulting from the railroad’s maintenance of an earthen embankment that bisects the Tubbses’ their property on which BNSF operates a railroad track. There appears to be room for further development of the Court of Appeals’ thinking on this topic.

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