Produced water is a byproduct generated during hydraulic fracturing, or “fracking.” During the fracking process, the extracting party fractures bed rock by injecting water into the subsurface at a high pressure to extract oil and natural gas. Upon completion, a slurry byproduct remains known as “produced water.” Originally seen as a waste product with limited uses, the extracting party typically…
The United States Supreme Court is being asked by a South Carolina farm to clarify whether the Clean Water Act’s (“CWA”) diligent prosecution bar precludes a federal enforcement action related to its alleged failure to get stormwater permits required by law whether the state enforcement agency had already begun the process of administrative enforcement.
Indiana Governor Eric Holcomb signed into law Senate Enrolled Act 389, which dramatically alters Indiana’s regulatory approach to wetlands and other environmental issues. The bill faced strong opposition from environmental organizations, hunting groups, and other wildlife advocates. The full Senate Bill 389 can be found here.
Following SB 389, the state will no longer regulate Class I wetlands and…
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).
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…
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 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…
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…
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…
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…
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.
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…
