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April 1, 2013

Supreme Court Allows EPA to Forego Clean Water Act Permits for Logging Roads, Deferring to Agency Interpretation of Its Own Rules

By: Ed Roggenkamp — Filed under: Administrative Law, Citizen Suits, Clean Water Act, Supreme Court — Posted at 1:47 pm

On March 20, 2013, the Supreme Court upheld the Environmental Protection Agency’s (“EPA”) exclusion of ditches, channels, culverts, and other stormwater conveyances associated with logging roads from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”) program established by the Clean Water Act (“CWA”).  The eight-justice majority deferred to EPA’s interpretation of two CWA regulations, although a dissent by Justice Antonin Scalia argued such deference was misplaced and that the conveyances should have been regulated as “point sources” under the Clean Water Act.

The case arose when Northwest Environmental Defense Center (“NEDC”) sued several timber companies and state and local government officials, arguing that discharges of pollutants through stormwater conveyances associated with logging roads were discharges through point sources that required NPDES permits.  The defendants  – and EPA – argued that the conveyances were in fact exempted from the broad definition of “point source” under their interpretation of two federal regulations.  One of those regulations, the Silvicultural Rule, 40 C.F.R. § 122.27(b)(1), defined certain types of conveyances associated with logging and other timber operations as “silvicultural point sources” and excluded others.  The other regulation, known as the Industrial Stormwater Rule, 40 C.F.R. § 122.26(b)(14), fleshed out the nexus of two provisions of the CWA: section 1342(p)(1), which exempted discharges “composed entirely of stormwater” from CWA permitting requirements, and section 1342(p)(2)(B), which required NPDES permits for stormwater discharges “associated with industrial activity.”

NEDC argued that stormwater conveyances associated with logging roads were not excluded from the definition of silvicultural point sources under the Silvicultural Rule, and that the Industrial Stormwater Rule – which included “logging” under a list of industrial activities – could only be interpreted to mean that stormwater associated with logging roads was in fact stormwater associated with industrial activity, and thus required a NPDES permit. The trial court agreed with the defendants, but the Court of Appeals for the Ninth Circuit reversed, holding that the stormwater conveyances were in fact point sources discharging stormwater associated with industrial activity and that EPA’s regulations governing the issue were unambiguous – that is, they could not be interpreted in any manner other than the one the Ninth Circuit (and NEDC) chose.  This last part of the Ninth Circuit’s holding was of particular importance, as two Supreme Court cases – Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) – have created a rule that courts will defer to an agency’s interpretation of its own regulations, so long as the interpretation is not plainly erroneous or inconsistent with the regulation itself.  This principle, known as “Auer deference”, is binding upon the courts; hence if EPA’s Silvicultural Rule and Industrial Stormwater Rule were ambiguous, and EPA’s interpretation of those rules was not plainly erroneous or inconsistent with the regulations themselves, the Ninth Circuit would be obligated to defer to EPA’s interpretation and rule against NEDC.

The Supreme Court reversed the Ninth Circuit and applied Auer deference: it found that EPA’s regulations were ambiguous, the agency’s interpretation of those regulations was plausible, and that therefore the courts should defer to the agency and hold that discharges from logging roads did not need NPDES permits.  In fact, the Court did not even consider for itself the issue of whether the stormwater conveyances associated with logging roads were point sources under the CWA or EPA’s implementing regulations – this despite the fact that the Court at one point said that it found NEDC’s interpretation of EPA’s rules “more plausible” than EPA’s.

A lone dissent by Justice Scalia argued – as the Ninth Circuit had – that NEDC’s interpretation of the rule was in fact the only plausible interpretation, and that the majority’s ruling suggests that it is time to reconsider whether Auer deference is an appropriate rule of law.  Chief Justice Roberts wrote a concurring opinion, joined by Justice Alito, suggesting that the Court might revisit Auer deference in the future, but that it would wait for a case in which the issue was clearly presented.

The Supreme Court’s decision in Decker has important implications, not only for the question of whether stormwater discharges require NPDES permits, but for interpretation of environmental regulations more generally; for the foreseeable future, it will remain difficult to challenge an agency’s interpretation of its own regulations.

For more information on stormwater permitting issues, please contact Michael Bogin.



April 26, 2012

Vapor Intrusion Case Survives Motion to Dismiss

By: Maggie Macdonald — Filed under: Citizen Suits, Emerging Issues, RCRA, Solid Waste — Posted at 10:12 am

Earlier this month, a federal court in New Jersey denied Lockheed Martin Corporation’s (“Lockheed Martin’s”) motion to dismiss state and federal claims alleging personal injuries and reduced property values arising from soil vapor intrusion.  Leese v. Lockheed Martin Corp., No. 11-5091, 2012 U.S. Dist. LEXIS 50963 (D.N.J. April 11, 2012).   This decision allows the case to proceed to discovery and a potential trial on the merits.    This case and others like it highlight the importance of considering vapor intrusion impacts in property and corporate transactions, especially when there are known or suspected off-site contaminant plumes.  In addition to private party litigation, vapor intrusion is increasingly capturing the attention of regulators in New York and elsewhere, causing them to reopen remediations that were previously thought to be complete.

In Leese v. Lockheed Martin Corp., plaintiffs Michael and Ashley Leese and their minor children allege that groundwater under their property and indoor air within their home are contaminated with trichloroethylene (“TCE”) and tetrachloroethylene (“PCE”) released from defendant Lockheed Martin’s neighboring property.

Lockheed Martin remediated TCE contamination at its property under an agreement with the New Jersey Department of Environmental Protection (“DEP”), and, at DEP’s request, conducted near-slab and sub-slab soil vapor testing at surrounding residences.  Lockheed Martin’s testing revealed elevated levels of PCE beneath the Plaintiffs’ property, and the Plaintiffs’ subsequent air quality testing detected PCE in the basement and first floor of their home.  Plaintiffs filed suit under the New Jersey Spill Act, the New Jersey Water Pollution Control Act, the Resource Conservation and Recovery Act, and New Jersey common law under theories of nuisance, trespass, strict liability and negligence.

In support of its motion to dismiss, Lockheed Martin argued, among other grounds, that there was no possible connection between TCE in the groundwater underneath the Plaintiff’s home and any residential exposure.  The Court rejected that claim, citing the Environmental Protection Agency’s finding that “TCE can be released into indoor air from … vapor intrusion … and volatilization from the water supply.”

Viewing the facts in a light most favorable to the Plaintiffs, the Court found that Plaintiffs had given Lockheed Martin sufficient notice of their claims and raised a reasonable expectation that discovery would reveal evidence to support all of their claims.  As the Court noted, depending on the nature of the facts unearthed throughout the discovery process Plaintiffs may still face a summary judgment motion by Lockheed Martin.  Regardless of the ultimate outcome of this case, this decision demonstrates the courts’ willingness to recognize vapor intrusion as a legitimate basis for environmental claims, and serves as a valuable reminder to be cognizant of potential liability arising from vapor intrusion.

Sive, Paget & Riesel represents a number of property owners on matters relating to vapor intrusion. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.



February 3, 2012

Court Invalidates New York State Permit for Municipalities’ Stormwater Discharges

By: Vicki Shiah — Filed under: Citizen Suits, Clean Water Act, New York Environmental Law — Posted at 3:18 pm

In a significant blow to New York’s stormwater pollution control program, last month a state court invalidated the Clean Water Act general permit covering discharges from urban and suburban municipalities’ separate storm sewer systems.

The January 10, 2012 decision from Judge Joan Lefkowitz of the Supreme Court, Westchester County held that the 2010 General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems (“MS4 General Permit”) violated the Clean Water Act (“CWA”) and the provisions of New York law that implement it.

The MS4 General Permit replaces individual State Pollutant Discharge Elimination System (“SPDES”) permits for hundreds of municipal storm sewer outfalls outside of New York City.  Because these outfalls share common characteristics, the Department of Environmental Conservation (“DEC”) issued a general permit that governs the discharge of stormwater by municipalities across the state.

To obtain coverage under the MS4 General Permit, municipalities must submit a Notice of Intent (“NOI”) to DEC and comply with the General Permit terms.  NOIs must propose an initial Stormwater Management Plan (“SWMP”) to effectuate pollution reductions, which must be developed and implemented within three years of gaining permit coverage.

Judge Lefkowitz struck down the MS4 General Permit on three grounds.

First, the Court held that the MS4 General Permit fails to require a reduction of pollutant discharge to the “maximum extent practicable”, as required by the Clean Water Act and its New York equivalent, because it “creates an impermissible self-regulatory system.”  Relying heavily on a 9th Circuit decision which declared NOIs to be “functionally equivalent to detailed applications for individual NPDES permits,” the Court emphasized that the MS4 General Permit does not require DEC to review a municipality’s SWMP prior to approving coverage.  Thus, “the initial determination of what particular control measures would be implemented and whether those measures would in fact reduce pollutant discharge to the level mandated by the applicable statute or regulation were left to each operator to make after it had already been authorized to discharge.”

Applying the same “functional equivalent” rationale, the Court also held that the NOI is effectively a permit application without an opportunity for a “public hearing,” as required for CWA permit applications.  The Court acknowledged that the MS4 General Permit itself was subject to extensive public review prior to issuance, but this was insufficient because, under the permit, neither the public nor DEC is able to review the specific pollution reduction measures contained in a municipality’s SWMP until after the municipality obtains coverage allowing it to discharge.

Finally, the Court held that the MS4 General Permit is unlawful because, while it requires MS4s to reduce pollutant loads to water bodies that violate State water quality standards, the permit does not mandate compliance within the nine month timeframe required by law.

While the plaintiff environmental groups in this case have proclaimed a victory, DEC’s time to appeal  has not yet expired.  If it is ultimately upheld, Judge Lefkowitz’s decision may have repercussions not only for municipalities, but also for construction sites and industrial activities covered by DEC’s Construction Stormwater General Permit and Multi-Sector General Permit.  SPR will be tracking developments related to this decision and will provide updates as applicable.

For more information about stormwater permitting, please contact Michael Bogin.



June 17, 2011

Appeals Court Rules Upper East Side Marine Waste Transfer Station Can Proceed

By: Devin McDougall — Filed under: Citizen Suits, Land Use & Development, New York City Environmental Law, New York Environmental Law, Solid Waste — Posted at 11:56 am

After five years of litigation, an appeals court ruled last week that New York City can proceed with the construction of a marine waste transfer station on the Upper East Side. Local residents had challenged the project, alleging that it appropriated public parkland for non-park purposes and that the city was required to seek legislative approval of the project.

The appeals court upheld the trial court’s findings that the parcels at issue are not public parkland, and that even if they were, the proposed project would not substantially intrude upon them. The court explained that public parks are created either expressly, via deed or legislative enactment, or by implication, through continuous use indicating an “unequivocal” intent to dedicate the parcel as public parkland.

The court found that neither of the two parcels at issue, a recreational complex known as Asphalt Green and a pedestrian path known as Bobby Wagner Walk, qualified as public parkland under this test. The court held that Asphalt Green was not expressly dedicated as parkland because it was acquired by the City for non-park purposes and that a 1989 assignment of part of the parcel to the Department of Parks was conditioned on not mapping that part as public parkland. Asphalt Green did not become public parkland by implication, the court reasoned, because it is operated by a non-City entity and because access is restricted 70% of the time to those who pay membership fees.  With respect to Bobby Wagner Walk, the court commented only that it can be “distinguish[ed]…from a park” because the “Department of Transportation owns the property, and it functions primarily as a thoroughfare.”

The new marine transfer station is part of a 2006 strategic plan by Mayor Bloomberg to manage the over 11,000 tons of solid waste the city produces daily. The Comprehensive Solid Waste Management Plan, which according to the New York Times is “affectionately known” as “the Swamp,” was the product of intense negotiations over the equitable siting of new waste facilities in the wake of the closing of the Fresh Kills landfill on Staten Island.

Devin McDougall is a summer associate at Sive, Paget & Riesel



December 17, 2009

Manhasset Lakeville Water District Settles Litigation to Clean Up Public Water Supply Contamination

By: Ashley S. Miller — Filed under: Citizen Suits, Project Updates, RCRA, Safe Drinking Water Act — Posted at 10:15 am

The Manhasset Lakeville Water District has secured a $2.75M settlement for costs incurred in response to contamination of the aquifer underlying the Water District’s service area.  Sive Paget & Riesel represented the Water District in its efforts to recover these costs.

The Water District provides drinking water to its 45,000 customers in Manhasset, Great Neck, and New Hyde Park, NY.  After Freon-22 was detected in the aquifer waters, the Water District was forced to build a treatment system to remove the contaminants and render the water safe for public consumption in compliance with New York State drinking water quality standards.

SPR assisted the Water District in locating parties that were potentially responsible for the contamination, investigating the historic source of the contamination, and bringing a federal litigation in the Eastern District of New York against the owners of the source of the contamination for recovery the Water District’s costs.  The litigation asserted federal claims under the citizen suit provisions of the Safe Drinking Water Act (SDWA) and the Resource Conservation and Recovery Act (RCRA).

The Water District has now settled certain of its claims in that litigation for $2.75M.  These settlement funds will offset costs incurred to build the treatment system, legal and engineering fees, as well as the ongoing operation and maintenance costs of removing contaminants from the drinking water supply.  The settlement also serves as an important example to public water districts, demonstrating that ratepayers need not bear the burden of addressing environmental contamination in the water supply.

The following SPR attorneys represented the Water District in this matter: David Yudelson, Daniel Riesel, Dan Chorost, and Ashley Miller.



October 29, 2009

Court of Appeals Confirms Right of Standing In Environmental Cases Where Petitioners Establish Repeated Recreational Use Of A Natural Resource Greater Than The Public At Large

By: Jessica Albin — Filed under: Citizen Suits, Environmental Impact Review, SEQRA — Posted at 10:34 am

On October 27, 2009, the New York State Court of Appeals held that individuals who can prove that they use and enjoy a natural resource frequently for repeated recreational use, more so than the public at large, may have standing under the State Environmental Quality Review Act (“SEQRA”) to challenge government actions that threaten that resource.  In Save the Pine Bush v. Common Council of the City of Albany (“Pine Bush“), Save the Pine Bush and nine of its members brought an action under SEQRA challenging the City of Albany’s (the “City”) acceptance of a Final Environmental Impact Statement (“FEIS”), which concluded that the proposed rezoning of a 3.6 acre parcel to allow construction of a hotel would not have a significant impact on the Karner Blue butterfly or its habitat.  Petitioners argued that they had standing because they lived near the site of the hotel project and used the Pine Bush for recreation and to study and enjoy its unique habitat. The closest petitioner lived approximately one-half mile from the Pine Bush.

The Court held that petitioners met the test for standing outlined in Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991) (“Society of Plastics”), where the court held that the standing of an organization is “established by proof that agency action will directly harm associate members in their use and enjoyment of the affected natural resources.”   This harm must be “different from that of the public at large.”  Id. at 774.  Society of Plastics has often been cited for the proposition that adjacent property owners or occupants may suffer harm for standing purposes, because in that case petitioners argued standing based on their adjacent property.  However, in Pine Bush, petitioners alleged harm based on repeated use of the natural resources at issue for recreation, at a level greater than that of the public at large.  The Court held that petitioners demonstrated that their injury was real and different from the injury faced by the public at large.  The Court refused to adopt a rule, proposed by the City, that only those who own or inhabit property adjacent to, or across the street from, a project site may allege environmental harm.

However, the Court dismissed the petition on its merits, holding that an agency complying with SEQRA does not have to investigate every conceivable environmental problem.  The City had discretion, within reasonable limits, to determine which environmental issues were relevant.  The City took the requisite hard look at the potential adverse impacts on the Karner Blue butterfly, and its decision not to consider the potential impacts on other species (i.e., the frosted elfin butterfly, hognosed snake, worm snake, and spadefoot toad), “matters of doubtful relevance,” was within the City’s judgment.

This ruling provides further guidance on standing requirements for citizens under SEQRA and potentially other environmental claims.  New York’s highest court has made clear that a petitioner may establish standing based on repeated, frequent recreational uses of a resource, which expose them to injury that is different from the public at large.  As noted by the Court of Appeals in its decision, this route to establishing standing is similar to existing standing law in the federal courts, where injuries to recreational interests are recognized as a cognizable basis for standing.  However, Court of Appeals was also cognizant of setting the barriers to standing too low, noting that SEQRA challenges “can generate interminable delay and interference with crucial government projects.”  Id., slip. op. at 10.  Petitioners, the Court noted, will have to do more than make “perfunctory allegations of harm” – each element must be supported by proof as with all matters where the burden falls to the petitioner.  It remains to be seen whether in practice this ruling will result in a significant widening of the courthouse door for petitioners alleging environmental harms.



October 23, 2009

Fifth Circuit Reverses Dismissal of Climate Change Lawsuit Alleging Damages From Hurricane Katrina

By: Jeffrey B. Gracer — Filed under: Citizen Suits, Climate Change Law, Emerging Issues — Posted at 11:15 am

On October 16, the Fifth Circuit Court of Appeals held that residents and owners of property along the Mississippi Gulf coast had standing to assert public and private nuisance, trespass, and negligence claims against several energy, oil and chemical companies for emissions of greenhouse gasses, and that none of those claims presented nonjusticiable political questions.  In its holding the appellate court reversed the trial court’s dismissal of the putative class action, which alleged that the companies’ greenhouse gas emissions contributed to global warming, caused a rise in sea levels, and added to the ferocity of Hurricane Katrina, causing extensive property damage.  The Fifth Circuit’s decision follows closely on the heels of the Second Circuit’s recent decision in State of Connecticut et al. v. American Electric Power Company Inc. (“CT v. AEP”) holding that several states, New York City and private land trusts can seek injunctive relief against power companies to limit greenhouse gas emissions.   Both of these decisions rejected earlier district court decisions that declined to hear climate change cases based on arguments that plaintiffs lack standing to sue for such a broad injury or that climate change cases present non-justiciable political questions.

Now that two courts of appeal have held that the federal courts are open for climate change claims, the battle lines will shift to issues that typically arise during later stages of litigation, including (1) whether plaintiffs will be able to establish a causal connection between the defendants’ greenhouse gas emissions and the specific harms they have suffered, (2) whether defendants (if held liable for money damages) should be assessed the full cost of harm or only their proportionate share of the total harm caused by all greenhouse gas emitters,  (3) whether and how courts will fashion injunctive relief that includes mandatory reductions in emissions, and (4) whether claims of this type can proceed as class actions.  The prospect of further litigation around these issues, as well as continued efforts by EPA to regulate greenhouse gases, will intensify efforts by companies to seek a comprehensive solution in Congress.

Just before the Fifth Circuit issued its decision, the United States District Court of the Northern District of California dismissed an action by the Eskimo Village of Kivalina against 24 oil and energy companies seeking $95-400M in damages for flooding and relocation impacts associated with global climate change.  It remains to be seen whether the Ninth Circuit will join the Second and Fifth Circuits, reverse the district court, and uphold the right of the Kivalina plaintiffs to seek relief in federal court, but that outcome seems well within the range of possibility.

Many of the concerns raised by the district court in Kivalina, however, are likely to play out in all of these litigations, even if the cases are not dismissed at the initial stages on standing or political question grounds.  For example, the Kivalina court rejected plaintiffs’ argument that federal courts could properly rely on standards developed in earlier air and water pollution cases, finding that prior cases involved impacts to geographically defined watersheds and airsheds, where there was a finite set of polluters contributing to the problem.  By contrast, because the impacts of greenhouse gas emissions have no geographic constraints, the number of parties potentially responsible for climate change is essentially infinite.

The Kivalina court also expressed concern that plaintiffs would not be able to plead or prove that the “defendants’ conduct caused the plaintiffs’ injury in fact.”   It concluded that the Kivalina plaintiffs could not plead or prove that any of the defendant’s polluting sources were the “seed of the injury” suffered by plaintiffs.  A concurring opinion in the Fifth Circuit opinion also expressed considerable sympathy for defendants’ argument that the complaint “did not allege facts that could establish that the defendants’ actions were the proximate cause of the plaintiffs’ alleged injuries.”  It remains to be seen how, on remand, the federal district courts in the Second and Fifth Circuits address this question.  It may be difficult for plaintiffs to show that a particular greenhouse gas emission is the proximate cause of a particular injury, at least under a conventional proximate cause analysis.  Faced with the near certainty that greenhouse gases are causing serious harm, however, the courts may approach the causation issue in a more pragmatic and less formalistic fashion.  The Kivalina court stated strongly that it was unwilling to impose a form of enterprise liability on defendants, but one thing is certain – the Second and Fifth circuits have held that these claims should go forward.



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