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We are pleased to present you with Taft’s Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.
Is there a subject you’d like to see in the next newsletter? Contact the editor here. |
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|  | Solicitor General Files Brief in Support of Supreme Court Review in Hawaii Wildlife Fund v. County of Maui
By: Erica Spitzig
This term, the United States Supreme Court is considering two petitions for certiorari that have significant implications for anyone who discharges pollutants to groundwater that may ultimately seep into navigable waters. The first case, Hawaii Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018), involves discharges of treated wastewater into Class V underground injection wells that are permitted under the Safe Drinking Water Act. Pollutants from the wells eventually (over 10 months at the earliest) seep into the Pacific Ocean, and conservation groups brought suit, arguing that the wells are required to obtain a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit for the wells. The Department of Justice (DOJ) submitted an amicus curiae on behalf of the EPA in support of the plaintiffs, arguing that pollutants discharged from a point source that reaches navigable water through groundwater with a “direct hydrologic connection” are subject to the NPDES permit requirement. The Ninth Circuit rejected the EPA’s test as not within the text of the statute, but the court went on to agree with the plaintiffs and create its own extratextual test whereby any discharge that is “fairly traceable” to a point source, and that is more than de minimis, must obtain a permit.
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| |  | Court Untangles Comingled Plume of Liability and Provides BFPP Guidance in Von Durpin LLC v. Moran Electric Service, Inc. et. al.
By: John Huldin
In Von Duprin LLC v. Moran Elec. Serv., Inc., No. 116CV01942TWPDML, 2019 WL 535752 (S.D. Ind. Feb. 11, 2019), the Southern District of Indiana addressed liabilities associated with a contaminated parcel, including the liability of its three up-gradient neighbors. Each of those parcels were owned and operated by various entities and all of the properties had various historic owners and operators who released chlorinated solvents into the groundwater. These separate releases, while from distinct source areas, formed a comingled contaminant plume. The plaintiff, the owner of the down-gradient parcel, filed a CERCLA section 107(a)(4)(B) and 113(g)(2) action against the three neighbors. That complaint was answered by counterclaims and cross-claims. Each of the parties moved for summary judgment on liability.
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| | | EPA Announces Next Cycle of National Compliance Initiatives With New Focus on Drinking Water and Lead Exposure
By: Erica Spitzig
On Feb. 8, EPA released a draft for public comment of its National Compliance Initiatives (NCIs) for fiscal years 2020–2023. These NCIs will represent EPA’s national priorities for the next triennium and are the first such priorities established by the Trump Administration. Formerly known as National Enforcement Initiatives, the current priorities for the FY2017–2019 cycle were established during the Obama Administration. In August 2018, EPA announced the transition to NCIs to emphasize the agency’s focus on compliance as a priority over enforcement.
>> Read More | |
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Taft’s Environmental Law Newsletter is used to inform our clients and friends of significant new developments and current issues in environmental law. For more information about Taft Stettinius & Hollister LLP, please visit http://www.taftlaw.com.
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