November 01, 2013

In Brief

Theodore L. Garrett


A divided D.C. Circuit panel ruled that states and industry groups, including the states of Texas and Wyoming, the Utility Air Regulatory Group, and the National Mining Association, lacked standing to challenge EPA’s imposition of a federal implementation plan, and related rules, for greenhouse gas permitting requirements for Texas and Wyoming. Texas v. Envtl. Prot. Agency, 2013 WL 3836226 (D.C. Cir. July 26, 2013). The majority concluded that vacating the rules “would not restore either State’s ability” to issue necessary permits “but would result in a construction moratorium until they submitted revised [plans] that EPA approved.” The opinion states that the Clean Air Act is “self-executing” for newly regulated pollutants; otherwise there would be perverse incentives for States to compete improperly for industry.” In dissent, Judge Kavanaugh agreed with petitioners that “[T]he relevant EPA regulation plainly gives States three years to revise their [plans] whenever new pollutants, like greenhouse gases, are regulated.”


A divided Fourth Circuit panel held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) statute of limitations commencement date preempts not only state statutes of limitations but also state statutes of repose limiting when individuals can bring toxic tort claims. Waldburger v. CTS Corp., 2013 WL 3455775 (4th Cir. July 10, 2013). In this case, a North Carolina statute of repose required real property claims to be filed within 10 years of the defendant’s action or omission, whereas the CERCLA statute of limitations runs from the time the plaintiff knows, or reasonably should have known, the cause of the injury or damages. 42 U.S.C. § 9658(b)(4). Although the CERCLA provision only refers to “statutes of limitations,” the majority found the language of the statute ambiguous and interpreted it liberally to preempt a North Carolina statute of repose. The Department of Justice, which is defending litigation involving the Camp Lejeune Marine Corps Base in North Carolina, filed an amicus brief arguing against preemption of state statutes of repose.

The application of CERCLA to soil and groundwater contamination located solely in Nevada was held not to violate the Commerce Clause. Voggenthaler v. Md. Square, LLC, 2013 WL 3839330 (9th Cir. July 26, 2013). The opinion states that the federal government has a “significant interest in groundwater,” even groundwater found within a state, and Congress acted on that federal interest in enacting CERCLA. The court rejected the argument of one defendant that it was not liable because it spilled perchloroethylene only onto the floor, stating that liability attaches to a disposal that “may” enter the environment. The Ninth Circuit held Melvin Shapiro should have not been found liable based on his personal guaranty because a guarantee is prospective unless it expressly states otherwise and there was no evidence of spills occurring after he signed the guaranty.

Air quality

The government may not pursue a new source review (NSR) enforcement action after the five-year statute of limitations has expired. United States v. Midwest Generation, LLC, 720 F.3d 644 (7th Cir. 2013). The opinion rejects the government’s argument that failure to have a construction permit is a continuing violation. The court emphasizes that the statute specifies what control technology the source must install at the time of construction, not how the source operates after construction: “If the owners ripped out or deactivated the best available control technology after finishing construction that would not violate” the NSR provisions of the Clean Air Act. The court thus concluded that “[o]nce the statute of limitations expired, Commonwealth Edison was entitled to proceed as if it possessed all required construction permits.”

A divided Tenth Circuit panel upheld EPA’s rejection of an Oklahoma regional haze plan, which was based on burning low-sulfur coal and issuance of a federal plan requiring the installation of dry scrubbers to limit sulfur dioxide emissions. Oklahoma v. EPA, 2013 WL 3766986 (10th Cir. July 19, 2013). Congress intended the states to make best available retrofit technology determinations, the majority opinion states, but subject to EPA’s ability to insure that the determinations comply with the statute. The court found that EPA properly exercised its authority when it concluded that that Oklahoma’s determination that scrubbers were not cost-effective failed to comply with EPA’s guidelines for calculating the costs of compliance.

A court of appeals upheld EPA’s imposition of sulfur dioxide limits on a Pennsylvania electric utility, pursuant to a petition filed by New Jersey, under section 126(b) of the Clean Air Act. GenOn REMA, LLC. v. EPA, 2013 WL 3481486 (3d Cir. July 12, 2013). EPA found that reductions by the utility were necessary in order for New Jersey to attain the EPA one-hour national ambient air quality standard for sulfur dioxide. The court rejected petitioner’s argument that the section 126(b) petition was not proper until Pennsylvania was afforded an opportunity to establish a plan for the one-hour sulfur dioxide standard and failed to do so. Such “good neighbor” petitions may become more frequent in light of the D.C. Circuits’ decision striking down the EPA Cross-State Air Pollution Rule.

Water quality

A mining company was liable for discharges not authorized by its permit even though it is “undisputed that A&G did not know or have reason to believe that it would discharge selenium from its mine site.” S. Appalachian Mountain Stewards v. A & G Coal Corp., 2013 WL 3814340 (W.D. Va. July 22, 2013). The court held that the permit shield in section 402(k) of the Clean Water Act did not apply in the absence of evidence that “the permitting agency contemplated selenium discharges and chose not to include an effluent limit for the pollutant in the permit.” The court ordered the company to submit an application for modification to its National Pollutant Discharge Elimination System permit to address its discharges of selenium.


A U.S. district court denied a motion to dismiss an environmental group suit alleging that manure management practices of defendant dairies violate the Resource Conservation and Recovery Act (RCRA). CARE, Inc. v. Cow Palace, LLC, 2013 WL 3179575 (E.D. Wash. June 21, 2013). The opinion concludes that manure from the dairies can be considered a “solid waste” subject to RCRA “after it has ceased to be ‘beneficial’ or ‘useful’ when it is over-applied to the fields and when it has leaked away from the lagoons.” However, the court will require evidence “as to whether the manure was put to its intended use and/or used for beneficial purposes by Defendants under the circumstances unique to this case.” The court concluded that further evidence was needed regarding defendants’ argument, based on the anti-duplication provision in RCRA, that the dairies are already subject to a separate EPA Safe Drinking Water Act consent order.


A divided D.C. Circuit panel ordered the Nuclear Regulatory Commission (NRC) to resume the license application process for the Yucca Mountain nuclear waste storage facility. In Re: Aiken County, 2013 WL 4054877 (D.C. Cir. Aug. 13, 2013). The Department of Energy submitted its licensing application for Yucca Mountain to the NRC in 2008, but the NRC by its own admission shut down its review and has no intention to consider the license. Writing for the majority, Judge Kavanaugh ordered the NRC to resume the licensing process “until Congress authoritatively says otherwise or there are no appropriated funds remaining.” The majority opinion states that its decision rests on the “respect that the Executive and the Judiciary properly owe to Congress in the circumstances here.” In his dissent, Judge Garland states that the court is ordering the NRC to do a useless act, given that the agency has wholly insufficient funds ($11 million) to complete the licensing process.

Plant Protection Act

Once the Animal and Plant Health Inspection Service (APHIS) determined that an agricultural commodity, Round Up Ready Alfalfa, was not a “plant pest,” the Ninth Circuit held that the agency lacked jurisdiction to continue regulating the plant. Ctr. for Food Safety v. Vilsack, 718 F.3d 829 (9th Cir. 2013). The court agreed with APHIS that gene flow and herbicide resistance were not plant pest concerns under the Plant Protection Act, and accordingly that APHIS had no duty to consult under the Endangered Species Act or consider alternatives under the National Environmental Policy Act. The opinion states that the Plant Protection Act was enacted to protect plants, “but not to control the burgeoning use of chemicals in crop production.” 

Theodore L. Garrett

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