EPA THREATENS TO TAKEOVER PERMITTING

Posted on February 18, 2011 by Fournier J. Gale, III

Last month, the Alabama Department of Environmental Management (“ADEM”) gained the Environmental Protection Agency’s (“EPA”) long-awaited approval of its proposed stormwater pollution regulations. EPA’s approval ends the looming threat it would take over Alabama’s stormwater permitting in the event ADEM did not cure certain deficiencies contained in previous draft regulations. EPA’s primary concern with ADEM’s previous draft regulations was that the regulations did not make clear exactly what obligations a local government had with respect to stormwater management. This issue has sparked intense debate from various groups over the last several months. One constituency, primarily builders and developers, argued that increasing local governments’ role in stormwater pollution prevention is unnecessary and wholly duplicative in light of ADEM’s existing regulations. On the other hand, various environmental groups contended that ADEM is simply ill-equipped to handle monitoring and enforcement responsibilities at the local level. Under the proposed regulations recently accepted by EPA, local governments must adopt local regulations to control runoff, conduct site inspections, and must have enforcement authority. EPA’s recent approval settles this dispute for the time being, but just as importantly, ends the threat that it would take over stormwater permitting in Alabama. It should be noted that the proposed regulations will not become final until ADEM has completed its review of and responded to the comments received during the rule making process.

 

Although EPA’s threat to take over Alabama’s permitting could be viewed as a strategic maneuver designed to hasten ADEM’s action, such a threat should not be taken lightly given EPA’s recent actions in Texas. EPA issued a series of rules and regulations that would bring greenhouse gases under the permitting programs of the Clean Air Act beginning January 2, 2011. To bring about these changes, EPA asked each state to revise and submit new state implementation plans to account for greenhouse gases. Several states publicly voiced their concern and disagreement with the rulemakings, but only Texas persisted in completely refusing to cooperate with EPA. After Texas failed to meet EPA’s deadline for submitting a revised plan, EPA sent Texas a letter stating that it would proceed with taking over Texas’s air permitting program. In response, Texas filed two petitions asking the Fifth Circuit Court of Appeals and the U.S. Circuit Court of Appeals for the District of Columbia to stay the EPA takeover. On December, 25, 2010, the Fifth Circuit denied Texas’s request for an immediate stay. While the D.C. Circuit issued a short-lived administrative stay, the court lifted the stay on January 12, 2011, determining that Texas had failed to meet “the stringent standards required for a stay pending court review.” While these rulings represent just one battle in the war between EPA and Texas, it remains to be seen how they will shape Texas’s strategy moving forward. Regardless of the ultimate outcome in this litigation, one thing is clear – the current EPA has demonstrated that it is not adverse to stepping in to take over state environmental regulatory programs in circumstances where EPA determines that the state agency is either unwilling or unable to implement federal law.

 

Alabama Court Dismisses CERCLA Section 107 Claims for Compelled Cleanup Costs

Posted on July 8, 2010 by Fournier J. Gale, III

On July 2, 2010, the U.S. District Court for the Northern District of Alabama published a must read opinion regarding cost recovery claims under CERCLA.  See Solutia, Inc., et al. v. McWane, Inc., et al., Case No. 03-1345, Document No. 622 (N.D. Ala. July 2, 2010).The case was originally filed by plaintiffs in 2003 as a CERCLA cost recovery and contribution action against several industrial defendants located in Anniston, Alabama related to plaintiffs' cleanup of historic PCB contamination throughout the Anniston area. In June 2008, the Court had previously granted defendants' motion for summary judgment regarding plaintiffs' CERCLA Section 113 claims for contribution but had allowed plaintiffs to proceed with their CERCLA Section 107 cost recovery claims. However upon motion for reconsideration, the Court on July 2 issued a detailed opinion also dismissing with prejudice plaintiffs’ cost recovery claims under Section 107.

 

 

Of interest to CERCLA practitioners, the dismissal opinion provides a lengthy analysis, based on recent Circuit Court decisions, as to whether a plaintiff who seeks to recover costs of a cleanup performed pursuant to obligations under a consent decree or administrative settlement (aka “compelled” cleanup costs) can bring a claim under Section 107(a)(4)(B).  Notably, the U.S. Supreme Court did not decide the appropriate route for recovering “compelled” costs (under Section 107(a), 113(f), or both) in its most recent opinion addressing CERCLA Sections 107 and 113. United States v. Atlantic Research Corp., 551 U.S. 128 (2007). Nevertheless, the Northern District of Alabama agreed to reconsider defendants' motion to dismiss plaintiffs' Section 107 claims in light of Circuit Court decisions issued subsequent to Atlantic Research as well as new evidence.  Indeed, the Court agreed with the defendants' assessment that the majority of Circuit Court decisions decided after the Northern District’s previous denial of defendants’ motions for summary judgment have held that a party who incurred “compelled” cleanup has a viable Section 113 claim for contribution and not a Section 107 claim for cost recovery.

 

 

Ultimately the Court concluded that the recent Circuit Court decisions were correct in their assessment that Congress had intended for Section 113(f) to be the exclusive remedy to recover costs incurred pursuant to a judgment, consent decree, or settlement.  Because the Court agreed withdefendants' argument that plaintiffs’ costs related to its PCB cleanup were incurred by virtue of a prior consent decree, the plaintiffs only had a potential right to a Section 113 claim for contribution (which was previously dismissed) – not a Section 107 claim for recovery.

 

 

Again, the opinion is a helpful summary of evolving jurisprudence under CERCLA regarding Section 107 and Section 113 claims.  

RESOLUTION OF TRI STATE WATER WAR ON THE HORIZON?

Posted on January 5, 2010 by Fournier J. Gale, III

For more than two decades, Alabama, Florida and Georgia have clashed over water use from the Apalachicola-Chattahoochee-Flint River Basin and the Alabama-Coosa-Tallapoosa River Basin to support growing demands for water in each state.  While it may be a an over generalization, the controversy largely pits Atlanta’s need for a large enough water supply to support its tremendous population growth against water needs in Alabama and Florida for consumption, hydroelectricity, irrigation, recreation, fisheries, and endangered species protection. The states reached a Memorandum of Agreement in 1992 which set a deadline for allocating water from the two watersheds to each state; however, the states were unable to reach an allocation agreement within the deadline and previously filed litigation resumed. While negotiations since have proved futile, a recent federal court decision along with the fact that the governors from each state are all leaving office in January 2011 may lead to a permanent solution to the tri-state water wars in the near future.

 

Specifically, on July 17, 2009, United States District Court Judge Paul Magnuson of the Middle District of Florida ruled that Georgia was not properly authorized to withdraw substantial amounts of water from Lake Lanier (a part of the Apalachicola-Chattahoochee-Flint River Basin) to provide drinking water to Atlanta. The Court held that because Lake Lanier is a federal reservoir built for purposes of flood control, hydropower generation, and navigation support, only Congress can approve the operational changes required for increased withdrawals of drinking water. Thus, the Court froze water withdrawals at current levels for the next three years to give time for Congressional approval. Without Congressional approval, withdrawals will revert to very low, baseline withdrawal levels used in the mid-1970s. Click here for a copy of the Court’s opinion.

 

As a result of the new court-ordered deadline, negotiations between the three states have resumed with a new fervor. On December 15, 2009, the Governors of Alabama, Florida and Georgia met in Montgomery, Alabama to discuss plans for reaching an agreement. While the Governors did not offer specifics on their negotiations, they did indicate that they now hope to reach an agreement on an allocation plan that could be presented to their respective state legislatures for approval this year. If an allocation plan does make it through each state’s legislature, it would of course have to go before Congress for final approval as well. To meet such an ambitious goal, the Governors would have to reach an accord as early as spring of this year.

MORE CLEAN WATER ACT SUITS ON THE WAY?

Posted on July 14, 2009 by Fournier J. Gale, III

Part II

And now for the rest of the story…

As reported in this blog in January, the Eleventh Circuit’s recent decision in Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986 (11th Cir. 2008), left an opening for Clean Water Act citizen suits to proceed despite an enforcement action being filed by the state environmental agency on the heels of the issuance of a plaintiffs’ 60-day notice letter. However, the recent dismissal of the Cherokee Mining case upon its return to District Court may give some pause to those who file citizen suits in the future.

As reported in more detail in January, the defendant in Cherokee Mining originally filed a Motion to Dismiss plaintiff’s Clean Water Act citizen suit for lack of subject matter jurisdiction arguing that the suit was barred under Section 309 because the state environmental agency had commenced enforcement subsequent to the plaintiff’s issuance of a 60-day notice letter. The plaintiff successfully defeated the Motion to Dismiss in the District Court by relying on what was a largely overlooked provision of Section 309 stating that the bar to citizen suits does not apply to actions filed “before the 120th day after the date on which…notice is given.” 33 U.S.C. § 1319(6)(B)(ii). The Eleventh Circuit, which is still the only Court of Appeals to address this issue, affirmed the District Court’s decision. See also Black Warrior Riverkeeper v. Birmingham Airport Authority, 561 F. Supp. 1250 (N.D. Ala. 2008) (applying the 120th-day exception to the citizen suit bar and allowing the same plaintiff to go forward in a separate case filed against other defendants).

 

However, upon Cherokee Mining’s return to District Court, the plaintiff’s case was dismissed on mootness grounds—arguably the same grounds on which Congress based the statutory bar to citizen suits filed after a state enforcement action. Specifically, the United States District Court for the Northern District of Alabama dismissed plaintiff’s claims for injunctive relief and civil penalties as moot because the issuance of a consent order by the state environmental agency adequately addressed the plaintiffs’ alleged violations. Indeed, despite allegations of additional violations subsequent to the issuance of the consent order, the District Court concluded that the plaintiff had failed to demonstrate that there was a serious prospect that the alleged violations would continue to occur. The District Court further held that because the consent order required Cherokee Mining to pay a penalty of $15,000, the Court was reluctant to second guess the state agency enforcement action. Thus, the Court dismissed plaintiff’s claims as moot. Black Warrior Riverkeeper v. Cherokee Mining, No. 07-AR-1392-S (N.D. Ala. Jun. 5, 2009).

Notwithstanding the ultimate outcome of Cherokee Mining, the back door to citizen suits opened by the Eleventh Circuit’s opinion is still available. In other words, at least in Alabama, Florida, and Georgia, a plaintiff can proceed with a Clean Water Act citizen suit despite enforcement action taken by the state environmental agency as long as the plaintiff files suit within 120 days of its 60-day notice letter. However, the entry of an administrative order by the state may quickly make the citizen suit moot. As aptly noted by the District Court, “[i]f there is a lesson to be learned from this case, it is that a citizen who admittedly has a right to file a citizen suit seeking to remedy a perceived water violation, although knowing, as a matter of law, that ADEM has concurrent jurisdiction over the issue, is taking the risk that he will be headed off at the pass by subsequent appropriate ADEM enforcement action.” Cherokee Mining, No. 07-AR-1392-S at 14-15.

More Clean Water Act Citizen Suits on the Way?

Posted on January 20, 2009 by Fournier J. Gale, III

At least in the Southeast, the popularity of Clean Water Act citizen suits has waxed and waned over the course of the Act’s 37 year history. However, our firm’s environmental practice group began to see a renewed interest in citizen suits a couple of years ago, and a recent decision by the Eleventh Circuit Court of Appeals may lead to an even greater resurgence.

 

In Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, the Eleventh Circuit held that a citizen suit may proceed against a defendant for alleged violations of the Clean Water Act despite the state environmental agency’s commencing an administrative enforcement action before the citizen suit was filed. 548 F.3d 986 (11th Cir. 2008). Riverkeeper, an environmental organization supporting the preservation of the Black Warrior River watershed in Alabama, filed suit in 2007 against Cherokee Mining, an owner and operator of two coal mines in northern Alabama, for alleged illegal discharges to navigable waters in violation of the company’s permit. Pursuant to the Act, Riverkeeper first sent Cherokee Mining a “60-day notice letter,” notifying the company of its intent to file suit in federal court. The state environmental agency then commenced enforcement by issuing an administrative consent order, and Riverkeeper filed its suit in the Northern District of Alabama shortly thereafter.

 

            Cherokee Mining filed a Motion to Dismiss Riverkeeper’s suit for lack of subject matter jurisdiction under Section 309 of the Act which precludes citizen suites when a state agency has commenced and is diligently prosecuting an administrative enforcement action against a defendant. Riverkeeper responded by pointing to what until now has been a largely overlooked provision in Section 309 stating that the citizen suit bar does not apply to actions filed after a citizen gives its notice of intent to sue prior to commencement of an administrative enforcement action and the citizen actually files suit “before the 120th day after the date on which such notice is given.” 33 U.S.C. § 1319(6)(B)(ii). Based on language found elsewhere in Section 309, Cherokee Mining argued that this 120-day exception only applies to federal, not state, administrative enforcement actions. The district court rejected this argument and held that Riverkeeper’s suit could go forward because it met the Act’s notice of intent to sue requirements. Holding that Cherokee Mining’s interpretation of the statute “was an extremely cramped and narrow reading of the ordinary and plain meaning of the relevant language” in the Act, the Eleventh Circuit affirmed the district court’s decision. Cherokee Mining petitioned the Court for panel or en banc rehearing, and the petition was denied on January 8, 2009. There has been no word yet as to whether Cherokee Mining plans to appeal the case to the U.S. Supreme Court.

 

            Until now, no Circuit Court has ever addressed the 120-day rule on which Riverkeeper successfully relied as an exception to the bar on citizen suits filed after the commencement of state administrative enforcement actions. Prior to the Eleventh Circuit’s decision, state agencies routinely initiated successful administrative enforcement actions once notified of a citizen suit, and the citizen either did not file suit or had their case dismissed pursuant to Section 309 of the Act.  Certainly for companies operating in Alabama, Georgia, and Florida, the rules have now changed. Entities faced with both a citizen suit and state administrative enforcement action have a much lower incentive for resolving the matter by coming into compliance and paying state penalties when they may be required to later pay citizens’ attorneys fees and Clean Water Act statutory penalties (up to $32,500 per day per violation) or even be required to comply with court-ordered injunctive relief that may be at odds with whatever the state would have required. Because state environmental agencies recognize the dilemma regulated entities face as a result of this decision, states are also going to have to alter their strategies in dealing with potential noncompliance of clean water regulations by industry. Because administrative consent decrees will be less palatable to regulated entities, the state will have to weigh whether or not to go to the added expense (in terms of dollars and resources) of filing a lawsuit in state court.

 

            This state of affairs is not likely to go unnoticed by citizen groups throughout the country. As counsel for Riverkeeper stated after the Court issued its opinion—“this changes everything.” With the increase in “60-day notice” letters we’ve seen being sent to entities just in Alabama in the last few months, it’s hard to disagree.

 

For more information, a copy of the Eleventh Circuit’s decision can be found at http://www.ca11.uscourts.gov/opinions/ops/200810810.pdf