Following two adverse rulings by the DC Circuit, issued in 2014 and reported at Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014) and Natural Resources Defense Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014), EPA has removed two exclusions from the list of regulatory exclusions located at 40 C.F.R. Section 261.4(a). This action was made effective on April 8, 2015.
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Federal district courts are often confronted with the issue of whether “Narrative Water Quality Standards” are incorporated into National Pollutant Discharge Elimination System (NPDES)permits and enforceable as permit conditions as they preside over citizen suits filed under the Clean Water Act (CWA). Two District Court’s recently weighed in on this issue.
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The implementation of the U.S. Department of Agriculture’s Highly Erodible Land Conservation and Wetland Conservation Compliance provisions (aka “Swampbuster”) program, designed to protect wetlands located on farming property, was the focus of a ruling by the U.S. Court of Appeals for the Sixth Circuit. On April 1, 2015, the Court of Appeals decided the case of Maple Drive Farms Limited Partnership, et al., v. Tom Vilsack, Secretary, United States Department of Agriculture. On appeal, the Sixth Circuit reversed the District Court’s ruling and remanded the matter, holding that the proceedings conducted by the agencies of the Department, described by the District Court as a “bureaucratic labyrinth” were inconsistent with the Department’s own regulatory framework, and were arbitrary and capricious.
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A state Court of Appeals sitting in Houston, Texas, on March 26, 2015, ruled that environmental indemnities, which were a component of an exchange of Louisiana oil and gas properties in 1994, could be enforced today by and against the corporate successors to the original companies that negotiated these provisions. The case is ConocoPhillips Company v. Noble Energy, Inc., No. 14-13-00884-CV. The decision is significant because ConocoPhillips settled a claim for environmental damages associated with these swapped properties filed by the State of Louisiana and the Cameron Parish School Board for $63 million, and had made a demand for defense and indemnity that was denied.
On April 2, 2015, the Ninth Circuit Court of Appeals decided a complex Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution cost recovery case in AmeriPride Services Inc. v. Texas Eastern Overseas Inc. (TEO), a dissolved Delaware corporation. The Ninth Circuit vacated this District Court’s rulings on several grounds.
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A significant CERCLA Opinion and Order was issued on March 18, 2015 by the U.S. District Court for the Western District of Wisconsin in Northern States Power Company v. The City of Ashland, Wisconsin, et al. Northern States is cleaning up a CERCLA site located adjacent to Lake Superior in Ashland, Wisconsin pursuant to agreements it had entered into with EPA in 2003 and 2012, and it has filed cost recovery lawsuits against the defendants, including Ashland County. Northern States alleges that Ashland County was a former owner of the facility many years ago, and that it was vested with sufficient ownership and control as the result of a tax delinquency. Contemporary newspaper accounts confirmed, for the Court, that the County appears to have played a direct role in the demolition of onsite facilities and the resulting historic releases of hazardous substances, and the County’s request for summary judgment was denied.
Last week, the State of Wyoming filed a Petition for Review of Final Agency Action in the Wyoming Federal District Court challenging the new federal hydraulic fracturing rules, 43 C.F.R. Part 3160. The case is State of Wyoming v. United States Department of the Interior, et al., No. 15cv43-S. Wyoming essentially argues that the Department of Interior’s new rules exceed the Department of Interior’s authority under the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-84 and the Mineral Leasing Act, 30 U.S.C. §§ 181-287; that exclusive federal authority is vested in the Environmental Protection Agency’s Underground Injection Control program established under the Safe Drinking Water Act, 42 U.S.C. § 300h-1; and that the rules unlawfully interfere with the State of Wyoming’s hydraulic fracturing regulations.
Petitions for certiorari have been filed with the Supreme Court of the United States regarding two recent rulings of the U.S. Court of Appeals for the Fifth Circuit. In both Aransas Project v. Shaw and In re: Deepwater Horizon, petitions for en banc review were denied, but a significant number of dissents have encouraged the petitioners to seek further review in the Supreme Court.
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The U.S. Court of Appeals are encountering and deciding CERCLA (or Superfund) “Arranger Liability” cases in the wake of the Supreme Court’s 2009 decision in the case of Burlington Northern and Santa Fe Railway Co. v. United States, 556 U. S. 559 (2009). Earlier this year, the Fifth Circuit held, in the case of Vine Street LLC v. Borg Warner Corp., that CERCLA’s “Arranger Liability” for Superfund cleanup responsibility did not apply to most straightforward business transactions in which an intent to dispose of hazardous waste or hazardous substances in the guise of a business transaction could not be established. On March 20, 2015,a divided panel of the Fourth Circuit reached a similar conclusion in the case of Consolidation Coal Company v. Georgia Power Company, et al. The Court of Appeals affirmed the lower court’s ruling that granted summary judgment to Georgia Power Company in a cost recovery case involving the ongoing cleanup of the Ward Transformer Site, located in Raleigh, North Carolina.
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On March 13, 2015, the EPA’s Environmental Appeals Board (EAB) issued an important ruling in a Toxic Substances Control Act (TSCA) enforcement matter. The case is In re: Elementis Chromium, Inc., TSCA Appeal 13-03.
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