Energy and Environment Monitor

West Virginia Supreme Court Slams Class Certification Order from Trial Court Judge Who Stood to Benefit from the Class Action

November 7, 2019

The West Virginia Supreme Court has ruled that a Circuit Court judge should not have decided whether to “certify” a class action in which he was a potential class member. In addition, the Court has vacated the certification order of the Circuit Court as inadequately supported. See State ex rel. Municipal Water Works v Swope, No. 19-0404 (W.Va. Sup. Ct. Oct. 18, 2019).

In March 2019, a group of…

The Beginning of the End

October 30, 2019

The U.S. EPA and the Army Corps of Engineers published the repeal of the 2015 “Waters of the United States” (WOTUS) rule in the October 22 Federal Register. With this rulemaking, the agencies are restoring the 1986 rule that defined “waters of the United States” before the 2015 revision. The agencies’ announcement also marks the beginning of the end to one of the most contentious, protracted and…

Court Rejects Claims that Valley Fill Discharges are Unpermitted Discharges: Relies on Broad Application of “Permit Shield”

September 30, 2019

A federal court in Virginia has ruled in favor of a coal operator in a citizen suit filed under the Clean Water Act, the Surface Mining Act and RCRA. See Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, Inc., No. 2:17-cv-00028 (W.D. Va. Sept. 24, 2019). There, Red River has held a combined NPDES/SMCRA permit (“Permit”) since 1992 for a surface mining operation.  As part…

The Administrative State Crumbles

June 17, 2019

The EPA issued a new guidance document on June 7th instructing other federal agencies and the states how they should interpret and implement §401 of the Clean Water Act (“CWA”). Individually, it is a modest step taken to fulfill an executive order issued earlier this year and will be followed by a new rule updated existing EPA’s §401 regulations. Viewed in context, it is another brick removed…

Sierra Club Targets Multiple Companies Under Clean Water Act

June 4, 2019

The Sierra Club and four other non-governmental organizations (NGOs) announced on June 4, 2019 that they are sending Notices of Intent to Sue (NOIs) nine companies in West Virginia and Pennsylvania in federal court for alleged violations of the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA).  The notices allege that a total of fifteen facilities owned by the…

EPA Denies Any Jurisdiction over Groundwater in New Interpretative Rule

May 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…

The Promise and Perils of Clean Water Act Litigation

November 26, 2018

            On November 14^th, 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. 

Does your pond…

Federal District Court Enjoins WOTUS Rule in Three More States

September 19, 2018

          Readers may recall that last month, August 23, 2018, we reported that a federal district court in South Carolina enjoined an EPA rule suspending the 2015 “waters of the United States rule”. EPA had proposed to suspend the 2015 rule and reinstate the previous 1982 regulation defining what constitutes a water of the United States. EPA did so in part to provide uniformity to the definition applied…

The Murky "Waters of the United States" Just Got Muddier

August 22, 2018

          When I wake up and listen to National Public Radio report about a federal district court’s injunction of an EPA regulation, I conclude that someone besides a lawyer believes the decision is important.  What was decided by the federal district court in Charleston, South Carolina on Thursday, August 16 was significant, but for a reason not reported.

          Defining the “waters of the United States”…

EPA Proposes to Surrender Clean Water Act Veto Authority

June 28, 2018

EPA Administrator Scott Pruitt announced on June 26 that the agency will revise its regulations to limit EPA’s use of the §404(c) veto. This is the section of the Clean Water Act (CWA) that authorizes EPA to rescind dredge and fill permits issued by the Army Corps of Engineers. Although infrequently utilized since §404(c) was adopted in 1972, its use in January 2011 effectively curtailed the…

Fourth Circuit Holds Groundwater Connection to Navigable Waters Triggers CWA Coverage

May 17, 2018

“[T]he fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past.”  Upstate Forever v. Kinder Morgan Energy Partners, L.P., No 17-1640, Slip Op. at 18) (4th Cir. April 12, 2018)

            The Clean Water Act prohibits unpermitted “discharges” from a “point source” to a “navigable water.” 33 U.S.C. § 1311(a).  Although the definition of what constitutes…