July 01, 2013

In Brief

Theodore L. Garrett

Editor’s Note: This issue marks another ABA anniversary of “In Brief,” Ted Garrett’s invaluable summary of key cases for SEER members. Ted has served as editor of “In Brief” since 1991 and was a contributor to the column’s predecessor, “Briefly Stated,” between 1986 and 1991. Ted’s service as a contributing editor to Trends is impressive in its continuity over these many years. More importantly, however, Ted’s contribution is quality at its highest level; “In Brief” delivers timely case updates with readable succinct summaries useful to all Section members. “In Brief” was one of the reasons I started reading Trends on a regular basis, and it is one of the reasons that keep many of us reading it today. The Section leadership, other board members of Trends, and the ABA publications staff, thank Ted for his superb work and hope that he will continue for many more years to come.


The Fourth Circuit upheld a district court decision that a company was not exempt from Superfund liability as a bona fide prospective purchaser (BFPP). PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F. 3d 161 (4th Cir. 2013). The company’s failure to clean out and fill in sumps demonstrated that the company did not take reasonable steps to prevent a future release. The court was not persuaded by the argument that holding companies liable for minor mistakes would be contrary to the intent of Congress to promote brownfields development, stating: “Logic seems to suggest that the standard of ‘appropriate care’ required of a BFPP, who by definition knew of the presence of hazardous substances at a facility, should be higher than the standard of ‘due care’ required of an innocent landowner, who by definition ‘did not know and had no reason to know’ of the presence of hazardous substances when it acquired a facility.” The Fourth Circuit also affirmed the district court’s denial of apportionment.


Air quality

EPA may sue a company for unlawfully commencing construction even though the source had not yet commenced operations and had submitted a preconstruction projection that the project would not significantly increase emissions. United States v. DTE Energy, 711 F.3d 643 (6th Cir. 2013). The divided panel reversed a district court ruling that EPA must wait until there is post-construction data to prove or disprove the source’s projected emissions. The majority stated that a “project-and-report scheme is entirely compatible” with the intent of the statute. The new source review regulations “take a middle road,” the majority stated, neither requiring operators to “defend every projection to the agency’s satisfaction” in a “prior approval scheme,” nor barring EPA “from challenging preconstruction projections that fail to follow the regulations.” The Chief Judge dissented, stating that allowing EPA to challenge preconstruction projections in court could not be squared with the prior approval scheme that the majority purports to reject.

Water quality

The D.C. Circuit reversed a district court decision that EPA lacked statutory authority under section 404 of the Clean Water Act to withdraw, four years after the permit had been issued, specification of two streams as disposal sites. Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C. Cir. 2013). The D.C. Circuit concluded that section 404 imposes no temporal limit on EPA’s authority and instead allows EPA to withdraw an Army Corp of Engineers’ specification “whenever” it makes a finding that an unacceptable adverse effect will result. The court rejected Mingo Logan’s argument that EPA’s interpretation tramples on other provisions of the statute intended to provide permit certainty and finality, stating that the language of section 404 is plain and unambiguous.

A court of appeals vacated an EPA rule, announced in letters to Congress, that the secondary treatment regulations applicable to publicly owned treatment works (POTWs) are to be applied internally, within the secondary treatment process, rather than at the point of discharge into navigable waters. Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013). EPA’s anti-blending policy was designed to prevent a POTW from meeting effluent limitations by channeling a portion of peak wet weather flow around secondary treatment units and then discharging the combined stream. EPA announced its position without notice and comment and thus violated the Administrative Procedure Act. The court also found that applying the secondary treatment limitations to individual internal streams is unlawful because EPA is only authorized to regulate discharges to navigable waters of the United States.

A district court granted summary judgment to defendant railroad companies who were sued by environmental groups alleging that airborne dust from coal stockpiles and coal spillage during ship loading was deposited into a bay without a National Pollutant Discharge Elimination System (NPDES) permit. Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC No. 3:09-cv-00255-TMB, 2013 WL 1614436 (D. Alaska, Mar. 28, 2013). The court held that the airborne dust was not a discharge from a point source and is thus exempt from NPDES permit requirements. The court also concluded that the discharges during ship loading were protected by defendant’s general permit because they were adequately disclosed to EPA in the company’s prevention plan submitted during the permitting process and were reasonably anticipated by EPA.


The Ninth Circuit affirmed dismissal of a citizen suit alleging that utility poles discharged wood preservative to the environment in violation of the Clean Water Act and the Resource Conservation and Recovery Act (RCRA). Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013). The complaint fails under the Clean Water Act because storm water runoff from the poles does not constitute a point source discharge or storm water associated with industrial activity. The court also held that wood preservative that escapes from utility poles through normal wear and tear is not a RCRA solid waste. The court noted that EPA approved the use of the wood preservative under the Federal Insecticide, Fungicide, and Rodenticide Act, and that it “defies reason” to suggest that every utility pole must be replaced under RCRA.


The Ninth Circuit affirmed the district court’s judgment rejecting a challenge to the government’s decision to allow Denison Mines Corp. to restart mining operations in Arizona under a plan of operations approved in 1988. Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013). The court rejected appellants’ argument that temporary closure of the mine in the 1990s rendered the plan of operations ineffective. Review of the original plan of operations under the National Environmental Policy Act (NEPA) was appropriate, and therefore requiring Denison to update its reclamation bond before recommencing mining operations was not “major Federal action” that triggered a new NEPA analysis.

Resources/administrative law

A district court improperly approved a consent decree settling a lawsuit between environmental groups and the U.S. Forest Service concerning the Survey and Manage Standard of the Northwest Forest Plan. Conservation Northwest v. Sherman, No. 11-35729, 2013 WL 1760807 (9th Cir. Apr. 25, 2013). An intervenor logging company objected to a consent decree, and the Ninth Circuit ruled that the district court abused its discretion in approving the decree because the changes to the Survey and Manage Standard could only be adopted through notice and comment rulemaking procedures.


Theodore L. Garrett

Theodore L. Garrett is a partner at Covington & Burling LLP in Washington, D.C. He is a former chair of the Section and a contributing editor of Trends.