Energy and Environment MonitorEnvironmental LitigationJustice Department Brings Welcomed Candor to WOTUS LitigationNovember 2, 2015 Two weeks ago, two of our Lexington colleagues wrote about the Court of Appeals for the Sixth Circuit staying the “Clean Water Rule.” The EPA and the Corps of Engineers promulgated this regulation to define what constitutes “waters of the United States” (WOTUS). Although the agencies have gone to extraordinary lengths to defend the regulation as a mere “clarification,… EPA Rejects NPDES Takeover Petition in WV; Still to Make a Decision in KYOctober 29, 2015 We have previously reported (in March 2015 and July 2015) on a challenge by the Sierra Club and other groups to EPA’s failure to respond to a petition requesting that EPA rescind the NPDES programs in Kentucky and West Virginia. After false starts in federal district courts, the Sierra Club filed actions in both the Sixth Circuit and the Fourth Circuit Court of Appeals challenging EPA’s… “Yes, You Can Own a River”October 26, 2015 The U.S. District Court for the Eastern District of North Carolina has affirmed a very traditional issue of property rights in a very unusual setting. The district court affirmed that one may acquire ownership of a river by means of adverse possession. Equally significant is that adverse possession may be successfully asserted against the state. The facts are highly unusual. Aluminum giant ALCOA… U.S. Fish and Wildlife Service Takes Action on Petitions to List Kentucky Arrow Darter and Cumberland Arrow Darter as Endangered or Threatened SpeciesOctober 21, 2015 The U.S. Fish and Wildlife Service (“USF&WS”) has taken action on petitions to list both the Cumberland Arrow Darter and the Kentucky Arrow Darter as endangered or threatened species under the Endangered Species Act. It has declined to list the Cumberland Arrow Darter, but has proposed to list the Kentucky Arrow Darter and has proposed critical habitat to protect the species. Cumberland… West Virginia Town Passes Non-Binding Resolution to Support an Ordinance Outlying Coal Slurry and Hydrofracking Byproducts in Fayette CountyOctober 19, 2015 According to press accounts, the Oak Hill Town Council passed a non-binding resolution supporting a possible county ordinance that would outlaw the storage, disposal or injection of coal refuse slurry or the waste byproducts from hydrofracking within the boundaries of Fayette County, West Virginia. The Town Council referenced two model county ordinances posted on a website maintained by… EPA Proposes Two Options for Aggregating Air Emissions in Oil & Gas IndustryOctober 19, 2015 The Clean Air Act requires Title V operating permits for new and modified “major sources” and enhanced permit review (New Source Review or Prevention of Significant Deterioration (“PSD”) Review) for “major stationary sources” of air pollutants. EPA’s regulations define a “stationary source” as “any building, structure, facility, or installation… A “Whirlwind of Confusion”: Sixth Circuit Imposes Nationwide Stay of EPA’s New Clean Water RuleOctober 15, 2015 The United States Court of Appeals for the Sixth Circuit recently imposed a nationwide stay of the EPA’s controversial new “Clean Water Rule.” States and industry alike have viewed the Rule, effective on August 28, 2015, as an impermissible expansion of Clean Water Act jurisdiction. The Act governs discharges into “navigable waters,” vaguely defined by Congress to mean “waters of… EPA Proposes New Rule Governing The Disposal Of Hazardous Waste Pharmaceuticals At Healthcare FacilitiesSeptember 29, 2015 Introduction On September 25, 2015, the United States Environmental Protection Agency (“EPA”) proposed a rule to address the management and disposal of hazardous waste pharmaceuticals at healthcare facilities. The proposed rule seeks to do the following:
Links in the Chain: The Evidential Significance of a Discharge Monitoring ReportAugust 31, 2015 A recent decision of the Eight Circuit Court of Appeals provides a useful reminder about the importance of the Discharge Monitoring Reports (DMR). The message is simple: you are bound by what the report states, and disavowal in a civil penalty action is nearly impossible. A DMR is filed by every person who holds an NPDES permit for the discharge of a pollutant from a point source. A discharge that… Links in the Chain: The Evidential Significance of a Discharge Monitoring ReportAugust 31, 2015 A recent decision of the Eight Circuit Court of Appeals provides a useful reminder about the importance of the Discharge Monitoring Reports (DMR). The message is simple: you are bound by what the report states, and disavowal in a civil penalty action is nearly impossible. A DMR is filed by every person who holds an NPDES permit for the discharge of a pollutant from a point source. A discharge… EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy-UPDATE: EPA Needs More Time to Locate and Review DocumentsJuly 27, 2015 We have previously reported on Murray Energy’s action against EPA in the Northern District of West Virginia. There, Murray has sued EPA to enforce § 321(a) of the Clean Air Act, which requires EPA to “conduct continuing evaluations” of potential loss or shifts of employment” which may result from the administration or enforcement of the Clean Air Act. Recently, the District… Sierra Club Moves Efforts to Rescind WV and KY State NPDES Programs to Fourth and Sixth CircuitsJuly 22, 2015 The Sierra Club and its local partners previously petitioned EPA to withdraw its approval of the NPDES programs in at least Kentucky, Virginia and West Virginia, largely over alleged deficiencies by the state agencies in handling coal-related permits. Earlier this year, when EPA did not formally respond to the petitions, the Sierra Club sued EPA in federal courts in Kentucky and West Virginia. In… |
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