Energy and Environment MonitorEnvironmental LitigationEPA Denies Any Jurisdiction over Groundwater in New Interpretative RuleMay 12, 2019 The U.S. EPA issued an interpretative rule on April 12 which establishes some long-sought clarity to the question of whether a discharge of pollutants into groundwater is subject to its regulation and permitting. The agency concluded that such discharges, even when the pollutants reach navigable waters regulated under the Clean Water Act, are not subject to its permitting authority under §402 of… Federal Court Smacks Down County Board of Education over Opposition to Rockwool Plant in WVMay 9, 2019 Danish insulation manufacturer Roxul (a/k/a Rockwool) was induced to locate a new manufacturing facility in the Eastern Panhandle of West Virginia by local and state officials. One mechanism for doing so was a “payment in lieu of taxes” or “PILOT” agreement to which the Jefferson County Board of Education (“BOE”) was a signatory. But, when the political winds shifted and local opposition grew,… NRDC Claims WVDEP's Underground Injection Program for the Oil and Gas Industry is DeficientMay 8, 2019 The Natural Resource Defenses Council (“NRDC”), assisted by the West Virginia Surface Owners’ Rights Organization, has issued a report claiming that West Virginia’s groundwater is not adequately protected from underground injection. https://www.nrdc.org/sites/default/files/west-virginia-groundwater-underground-injection-report.pdf. The Underground Injection Control (“UIC”) program originated from… Rockwool Plant Developer in WV Sues School Board for Threatening to Condemn Project PropertyApril 15, 2019 The proposed Rockwool insulation manufacturing facility in Jefferson County, West Virginia has seen more than its share of opposition from local residents. Most recently, county residents blocked access to the Danish Embassy in Washington to express their disapproval of the facility, which is a subsidiary of a Denmark-based company. Now, Rockwool and one of its original supporters, the Jefferson… The Green New Deal Meets PhysicsApril 11, 2019 A new report by the Manhattan Institute explains that while greater efficiencies can be gained by electric generators using solar or wind energy, technology will soon bump up against hard stops in those efforts. See The “New Energy Economy”: An Exercise in Magical Thinking (March 26, 2019). https://www.manhattan-institute.org/energy-environment For example, the so-called Betz limit will prevent… Courts Reject Challenges to Directive Prohibiting EPA Grant Recipients from Participation on Federal Advisory CommitteesMarch 26, 2019 EPA’s Science Advisory Board (“SAB”) is one of eight statutorily established Federal Advisory Committees established under the Federal Advisory Committee Act to provide guidance on various environmental and health issues to EPA and other federal agencies.[1] See 5 U.S.C. App. There are 14 others established by the President or agency heads. Throughout the Obama administration, industry… Coal Ash Rule: Rule Opponents Seek Immediate Closure of Existing Unlined FacilitiesFebruary 17, 2019 We have written about EPA’s Coal Ash rule before: EPA Will Not Regulate Coal Ash as Hazardous Waste, but Restrictions Nonetheless Apply: Coal Mine Disposal Unaffected; Utility Groups Ask EPA to Modify Coal Ash Rule and to Extend Compliance Deadlines; and EPA Issues Guidance for States to Develop Permitting Programs for Coal Ash Disposal. In 2015, EPA issued its Coal Ash rule. 80 Fed. Reg. 21,302… House Delegates Introduce Environmental Constitutional AmendmentFebruary 13, 2019 On February 11, 2019, 32 Democratic Delegates cosponsored House Joint Resolution 25, dubbed the “Environmental Rights Amendment.” The resolution proposes to amend the West Virginia constitution’s Bill of Rights by including a provision specifying that a clean environment is a constitutional right:
ARTICLE III. BILL OF RIGHTS. §23. Natural Resources and the Public Estate. The people have a right to… A Christmas Present for All Who Use the LandJanuary 8, 2019 The Environmental Protection Agency and Corps of Engineers delivered their long-awaited definition of “waters of the United States” (WOTUS) on December 11. The pre-publication version of the rule released on that day marks the beginning of the end of one the most contentious issues in the history of American environmental law. The new definition will “encompass relatively permanent flowing and… District Court Pauses Kids' Climate Suit for Interlocutory AppealNovember 29, 2018 On November 21, 2018, the United States District Court for the District of Oregon stayed a climate change suit in order to allow for an interlocutory appeal to the Ninth Circuit Court of Appeals. An interlocutory appeal is an appeal of a specific ruling by a trial court that is made before the trial itself has actually concluded. The District Court’s order concerns a suit filed against the… The Promise and Perils of Clean Water Act LitigationNovember 26, 2018 On November 14th, a federal district court dismissed a lawsuit filed by environmental groups against the owners of the Vermillion power plant, a retired coal-fired facility on the banks of the Middle Fork in Vermillion County, Illinois. Metals from coal ash were leaching from three unlined ponds into groundwater that flows to the Middle Fork, which happens to be both a federally and state… DO I HAVE A POINT SOURCE?November 19, 2018 The Answer Depends on the Jurisdiction
Let’s say you have an unlined pond. It doesn’t directly discharge to any river or stream and, as a result, you’ve never applied for an NPDES permit. But, let’s assume that pollutants in the pond percolate into groundwater. And let’s further assume that these pollutants eventually make their way, via groundwater, to a river or stream.
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