On October 20, 2015, a district court held that a state enforcement action brought under the Clean Water Act (CWA) did not bar a citizen suit from proceeding against Duke Energy Carolinas, LLC (Duke Energy). Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, Case No. 1:14-cv-753 (M.D.N.C. Oct. 20, 2015).  For regulated industries, Yadkin Riverkeeper is a reminder that the diligent prosecution bar to citizen suits under federal environmental statutes is not absolute, and the existence of a government enforcement action alone may not be enough to bar a citizen suit.
Continue Reading Too Little, Too Late: State Agency’s Enforcement Action Does Not Bar Citizen Suit

Yesterday, a judge in the Eastern District of Wisconsin reversed his own ruling and held that NCR Corporation’s liability for the cleanup of polychlorinated biphenyls (PCBs) at the Fox River Superfund Site was not subject to divisibility.  Last May, the court held that NCR had proven that the environmental harm in Operable Unit 4 of the Site was capable of apportionment and could be reasonably apportioned based on NCR Corporation’s contribution of PCBs to this area.  In its May decision, the court held NCR liable only for its portion of the costs and determined NCR was not jointly and severally liable for all the costs of cleaning up PCBs in Operable Unit 4 (OU4).  That ruling upheld NCR’s “divisibility defense” to joint and several liability.  After yesterday’s decision, however, NCR is once again jointly and severally liable for all cleanup costs at OU4.
Continue Reading Judge Rejects NCR Fox River Divisibility Defense in Reconsideration

The summer of 2015 saw several controversial EPA rulemaking proceedings that will affect the energy, transportation, waste management and construction sectors across the United States.  These rulemakings implement President Obama’s 2013 Climate Action Plan, which has a goal of  reducing greenhouse gas (GHG) emissions to mitigate the impacts of climate change.
Continue Reading Climate Action Plan Takes Shape

On September 4, 2015, the United States Court of Appeals for the Fifth Circuit overturned Citgo Petroleum Corporation’s two convictions under the Clean Air Act (CAA) and three convictions under the Migratory Bird Treaty Act (MBTA).  The court held that the district court had erred in allowing improper jury instructions and had misinterpreted the MBTA’s “take” provision.  
Continue Reading Fifth Circuit Lets Citgo Fly Free

On May 15, 2015, the United States District Court for the Eastern District of Wisconsin held that a defendant successfully established a divisibility defense in a government enforcement action dealing with the cleanup of the Fox River Superfund Site in northeastern Wisconsin (the Site).  United States v. NCR Corp., No. 10-C-910 (E.D. Wis. May 15, 2015).  The ruling appears to be the first district court decision to uphold a divisibility defense under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) since the Supreme Court’s 2009 decision in Burlington Northern.  It remains to be seen whether this is an indication of how courts will address divisibility going forward.
Continue Reading CERCLA Divisibility Defense Is Alive and Well

EPA today published in the Federal Register its Final Rule for Disposal of Coal Combustion Residuals from Electric Utilities (commonly known as the CCR Rule). The rule is now official and the clock starts for compliance deadlines and the filing of challenges.

The rule becomes effective on October 14, 2015, six months after publication. Parties wishing to challenge any aspect of the rule have 90 days to initiate their challenge.
Continue Reading The Wait is Over – EPA publishes the Disposal of Coal Combustion Residuals from Electric Utilities Rule

The United States Environmental Protection Agency (EPA) is cracking down on alleged sham recycling with the issuance of a final “Definition of Solid Waste” Rule. The rule aims to reestablish hazardous waste restrictions eased by the Bush administration in 2008. Rulemaking on the Definition of Solid Waste, Pre-Publication version (Dec. 9, 2014) (to be codified at 40 CFR Parts 260 and 261) (the Rule). The 2008 rule exempted hazardous secondary materials that would be reclaimed from the definition of solid waste. Doing so, according to EPA, effectively de-regulated 1.5 million tons of materials, such as arsenic, benzene, trichloroethylene, lead and mercury. Environmental groups and EPA claim that the deregulation resulted in third-party recyclers over-accumulating materials, increasing the risk of accidents and environmental releases. Consequently, the Rule redefines certain materials as hazardous waste and implements stricter controls on facilities and processes.
Continue Reading EPA Expands the Definition of Solid Waste Rule

On December 19, 2014, the U.S. Environmental Protection Agency (EPA) issued a 745-page prepublication version of its final rule governing the landfill and surface impoundment management of coal combustion residuals (CCR) from coal-fired power plants. The rule is to become effective six months from the date of its publication in the Federal Register (expected to occur by the end of the year). Important features of the rule include the following:
Continue Reading EPA Regulates Coal Combustion Residuals from Coal-Fired Power Plants as Subtitle D Solid Waste

The Illinois Department of Natural Resources (IDNR) on August 29, 2014 filed proposed rules that if adopted, will create additional burdens on companies seeking to extract natural gas in Illinois.  The proposed rules, filed with the Joint Committee on Administrative Rules (JCAR), represent IDNR’s final rules implementing the Hydraulic Fracturing Regulatory (Act), the comprehensive law which permits, and strictly regulates, high volume horizontal hydraulic fracturing (fracking) in Illinois.  These new rules (Rules) could be argued to impose requirements well-beyond those expressly provided by the Act and the proposed rules issued by the IDNR on November 13, 2013.  The following are among the ways in which the Rules could be viewed to go beyond requirements of the Act.
Continue Reading IDNR Issues Proposed Final Fracking Rules

The United States Court of Appeals for the Ninth Circuit on August 20, 2014 determined that emissions of diesel particulate matter from a railyard were not regulated under the Resource Conservation and Recovery Act (RCRA).  In Center for Community Action and Environmental Justice, et al, v. BNSF Railway Co., et al, (Case No. 12-56086), the court held that the railyards’ emissions did not constitute a “disposal” of solid waste under RCRA, and that more broadly, emissions from indirect sources such as railyards “fall entirely out of the ambit of federal regulation.”
Continue Reading Ninth Circuit Holds that Railyard Emissions are Outside the Scope of Federal Regulation