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Showing 46 posts in Water. View our practice description for Water.

Recent PFAS Case Law – RCRA, CERCLA and Toxic Tort Claims

A new class of emerging contaminants poses challenges at remediation sites and for the protection of drinking water, and is generating new toxic tort litigation. Per- and polyfluoroalkyl substances (PFAS) are emerging contaminants that are being identified at several sites in many areas of the country.  The U.S. EPA and many states are beginning to issue guidelines, advisories or in some cases, standards for PFAS in drinking water, soil, or groundwater.  At the same time, several cases are winding their way through the courts.  Below we discuss several recent cases involving PFAS contamination.  In each of these cases, some of the claims have survived a motion to dismiss, suggesting that it will be difficult to quickly dispose of such claims prior to discovery. Read More ›

OMB Signs Off on U.S. EPA’s 2017 Construction Stormwater Permit

Spared by the Office of Management and Budget from the Trump Administration’s regulatory freeze, the U.S. Environmental Protection Agency’s (EPA) 2017 National Pollutant Discharge Elimination System General Permit for Stormwater Associated with Construction Activities (2017 CGP) became effective on February 16, 2017. Read More ›

Fourth Circuit: CWA Permit Shield Requires Compliance with Incorporated Quality Standards

A recent Fourth Circuit decision will have wastewater dischargers taking a closer look at their NPDES permits and state water quality standards. The court of appeals held, in Ohio Valley Environmental Coalition v. Fola Coal Co., No. 16-1024, that permit language incorporating state water quality standards required compliance with all such standards, including narrative standards not reflected in the permit’s effluent limits.  As a consequence, a source can only be assured that it is shielded from liability under the CWA if its discharges comply with both (a) effluent limits in the NPDES permit and (b) any water quality standards—even narrative standards—that the permit incorporates.  The decision raises questions about potential exposure and how to approach permit writers in the future. Read More ›

EPA’s Cooperative Federalism Approach to Nutrients in the Mississippi River and Gulf of Mexico Prevails in Fifth Circuit Remand

In a critical decision preserving state authority in water quality management, a U.S. District Court has ruled that EPA has broad discretion to not establish federal numeric nutrient water quality standards because the Clean Water Act (CWA) vests primary responsibility for this function in the states.  The decision in Gulf Restoration Network v. Jackson rebuffed efforts by a major coalition of environmental groups to compel EPA to take control of nutrient management criteria for a significant part of the country’s water.  Beveridge & Diamond principal Karen Hansen represented the National Association of Clean Water Agencies (NACWA) as an intervenor supporting EPA in the case, which has been litigated in the district court and the court of appeals since 2012. Read More ›

Impacts of the 2016 U.S. Election on Environmental Law, Policy, and Enforcement

The 2016 election results will have wide-ranging impacts on the future direction of environmental law, policy, and enforcement in the U.S.  With 100 lawyers in offices around the U.S. focused on environmental and natural resource law and litigation, Beveridge & Diamond helps clients navigate legal and business risks arising from this evolving legal landscape. Read More ›

Nuisance Claims for Injunctive Relief Not Barred by New York’s Statute of Limitations

In a case that highlights the importance of careful pleading in toxic tort cases, a New York federal court revived a landowner’s nuisance claim related to gasoline contamination, to the extent the Plaintiff sought injunctive relief.  See Plumbing Supply, LLC v. ExxonMobil Oil Corp., 14-cv-3674 (S.D.N.Y. May 27, 2016). Read More ›

Vermont’s Statewide MTBE Claims Time-Barred

In an opinion that reinforces the importance of the statute of limitations to defendants, the Vermont Supreme Court upheld a trial court’s decision that the State’s claims of a “generalized injury” from methyl tertiary butyl ether (“MTBE”) groundwater contamination were time-barred under Vermont law. See State of Vermont v. Atlantic Richfield Co., 2016 VT 61 (May 27, 2016).  The State brought suit in 2014, alleging that gasoline refiners and marketers were liable for knowingly distributing gasoline containing the oxygenate, which then leaked into groundwater across the state. Read More ›

Missouri Federal Jury Awards $20.6 Million for TCE Exposure; No New Trial

A Missouri federal court denied a ball bearings manufacturer’s request for a new trial after a jury hit it with $20.6 million in compensatory and punitive damages in a trichloroethylene (“TCE”) exposure case, and the Court denied Defendants’ request for a new trial.  Kirk v. Schaeffler Group USA, Inc., No. 3:13-cv-5032 (W.D. Mo. July 13, 2016). Read More ›

Delay in Massachusetts Efforts to Assume Control of CWA Program

As we reported in our recent Massachusetts Environmental and Land Use Alert, Massachusetts is in the first stages of seeking delegation from the U.S. Environmental Protection Agency (EPA) for the Clean Water Act program.  This first stage includes filing with the state legislature a bill to bring certain elements of state law into conformance with EPA requirements.  The effort has suffered a serious delay as this bill will not become law this year.  Read More ›

Massachusetts Moves To Assume Control of CWA Program as EPA issues Disputed MS4 Permit

Massachusetts’ status as one of only four states not in control of the Clean Water Act program within its boundaries may change as the state begins the process of applying to U.S. EPA for delegation of that program.  Delegation won’t happen quickly and not soon enough to provide relief to municipalities that must meet the requirements of EPA’s recently issued General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts (known as MS4 systems).  Read More ›