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Energy and Environment Monitor

Environmental Litigation

“Yes, You Can Own a River”

The U.S. District Court for the Eastern District of North Carolina has affirmed a very traditional issue of property rights in a very unusual setting. The district court affirmed that one may acquire ownership of a river by means of adverse possession. Equally significant is that adverse possession may be successfully asserted against the state.

The facts are highly unusual. Aluminum giant ALCOA…

U.S. Fish and Wildlife Service Takes Action on Petitions to List Kentucky Arrow Darter and Cumberland Arrow Darter as Endangered or Threatened Species

The U.S. Fish and Wildlife Service (“USF&WS”) has taken action on petitions to list both the Cumberland Arrow Darter and the Kentucky Arrow Darter as endangered or threatened species under the Endangered Species Act.  It has declined to list the Cumberland Arrow Darter, but has proposed to list the Kentucky Arrow Darter and has proposed critical habitat to protect the species.

Cumberland…

West Virginia Town Passes Non-Binding Resolution to Support an Ordinance Outlying Coal Slurry and Hydrofracking Byproducts in Fayette County

According to press accounts, the Oak Hill Town Council passed a non-binding resolution supporting a possible county ordinance that would outlaw the storage, disposal or injection of coal refuse slurry or the waste byproducts from hydrofracking within the boundaries of Fayette County, West Virginia.  The Town Council referenced two model county ordinances posted on a website maintained by…

EPA Proposes Two Options for Aggregating Air Emissions in Oil & Gas Industry

The Clean Air Act requires Title V operating permits for new and modified “major sources” and enhanced permit review (New Source Review or Prevention of Significant Deterioration (“PSD”) Review) for “major stationary sources” of air pollutants. EPA’s regulations define a “stationary source” as “any building, structure, facility, or installation…

A “Whirlwind of Confusion”: Sixth Circuit Imposes Nationwide Stay of EPA’s New Clean Water Rule

The United States Court of Appeals for the Sixth Circuit recently imposed a nationwide stay of the EPA’s controversial new “Clean Water Rule.”  States and industry alike have viewed the Rule, effective on August 28, 2015, as an impermissible expansion of Clean Water Act jurisdiction.  The Act governs discharges into “navigable waters,” vaguely defined by Congress to mean “waters of…

EPA Proposes New Rule Governing The Disposal Of Hazardous Waste Pharmaceuticals At Healthcare Facilities

Introduction

On September 25, 2015, the United States Environmental Protection Agency (“EPA”) proposed a rule to address the management and disposal of hazardous waste pharmaceuticals at healthcare facilities. The proposed rule seeks to do the following:

  • Ban all drain disposal of hazardous waste pharmaceuticals at hospitals, pharmacies, clinics, dentists, and long-term care facilities.
  • Clarify that…

Links in the Chain: The Evidential Significance of a Discharge Monitoring Report

A recent decision of the Eight Circuit Court of Appeals provides a useful reminder about the importance of the Discharge Monitoring Reports (DMR). The message is simple: you are bound by what the report states, and disavowal in a civil penalty action is nearly impossible.

A DMR is filed by every person who holds an NPDES permit for the discharge of a pollutant from a point source. A discharge that…

Links in the Chain: The Evidential Significance of a Discharge Monitoring Report

A recent decision of the Eight Circuit Court of Appeals provides a useful reminder about the importance of the Discharge Monitoring Reports (DMR). The message is simple: you are bound by what the report states, and disavowal in a civil penalty action is nearly impossible.

A DMR is filed by every person who holds an NPDES permit for the discharge of a pollutant from a point source. A discharge…

EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy-UPDATE: EPA Needs More Time to Locate and Review Documents

We have previously reported on Murray Energy’s action against EPA in the Northern District of West Virginia.  There, Murray has sued EPA to enforce § 321(a) of the Clean Air Act, which requires EPA to “conduct continuing evaluations” of potential loss or shifts of employment” which may result from the administration or enforcement of the Clean Air Act. 

Recently, the District…

Sierra Club Moves Efforts to Rescind WV and KY State NPDES Programs to Fourth and Sixth Circuits

The Sierra Club and its local partners previously petitioned EPA to withdraw its approval of the NPDES programs in at least Kentucky, Virginia and West Virginia, largely over alleged deficiencies by the state agencies in handling coal-related permits.  Earlier this year, when EPA did not formally respond to the petitions, the Sierra Club sued EPA in federal courts in Kentucky and West Virginia. 

In…

OSM Releases Proposed Stream Protection Rule

OSM has released its newly re-proposed Stream Protection Rule and accompanying Draft Environmental Impact Statement and Regulatory Impact Assessment.  Links to the documents may be found here.  Once published in the federal register, the public will have 60 days to comment.

The predecessor to this rule, the “Stream Buffer Zone” rule, was issued in 1983.  In 1999, a federal judge in West…

EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy: UPDATE 4th Circuit Denies Relief to EPA

We have previously reported on Murray Energy’s action against EPA in the Northern District of West Virginia.  There, Murray has sued EPA to enforce § 321(a) of the Clean Air Act, which requires EPA to “conduct continuing evaluations” of potential loss or shifts of employment” which may result from the administration or enforcement of the Clean Air Act. 

Recently, the District…

 

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