We are pleased to present you with Tafts Environmental newsletter, a collection of insights from our team to yours. For more information on our environmental practice, please visit www.taftlaw.com.

Is there a subject youd like to see in the next newsletter? Contact the editor here.

Solicitor General Files Brief in Support of Supreme Court Review in Hawaii Wildlife Fund v. County of Maui
By: Erica Spitzig

This term, the United States Supreme Court is considering two petitions for certiorari that have significant implications for anyone who discharges pollutants to groundwater that may ultimately seep into navigable waters. The first case, Hawaii Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018), involves discharges of treated wastewater into Class V underground injection wells that are permitted under the Safe Drinking Water Act. Pollutants from the wells eventually (over 10 months at the earliest) seep into the Pacific Ocean, and conservation groups brought suit, arguing that the wells are required to obtain a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit for the wells. The Department of Justice (DOJ) submitted an amicus curiae on behalf of the EPA in support of the plaintiffs, arguing that pollutants discharged from a point source that reaches navigable water through groundwater with a “direct hydrologic connection” are subject to the NPDES permit requirement. The Ninth Circuit rejected the EPA’s test as not within the text of the statute, but the court went on to agree with the plaintiffs and create its own extratextual test whereby any discharge that is “fairly traceable” to a point source, and that is more than de minimis, must obtain a permit.

>> Read More

Court Untangles Comingled Plume of Liability and Provides BFPP Guidance in Von Durpin LLC v. Moran Electric Service, Inc. et. al.
By: John Huldin

In Von Duprin LLC v. Moran Elec. Serv., Inc., No. 116CV01942TWPDML, 2019 WL 535752 (S.D. Ind. Feb. 11, 2019), the Southern District of Indiana addressed liabilities associated with a contaminated parcel, including the liability of its three up-gradient neighbors. Each of those parcels were owned and operated by various entities and all of the properties had various historic owners and operators who released chlorinated solvents into the groundwater. These separate releases, while from distinct source areas, formed a comingled contaminant plume. The plaintiff, the owner of the down-gradient parcel, filed a CERCLA section 107(a)(4)(B) and 113(g)(2) action against the three neighbors. That complaint was answered by counterclaims and cross-claims. Each of the parties moved for summary judgment on liability.

>> Read More

EPA Announces Next Cycle of National Compliance Initiatives With New Focus on Drinking Water and Lead Exposure
By: Erica Spitzig

On Feb. 8, EPA released a draft for public comment of its National Compliance Initiatives (NCIs) for fiscal years 2020–2023. These NCIs will represent EPA’s national priorities for the next triennium and are the first such priorities established by the Trump Administration. Formerly known as National Enforcement Initiatives, the current priorities for the FY2017–2019 cycle were established during the Obama Administration. In August 2018, EPA announced the transition to NCIs to emphasize the agency’s focus on compliance as a priority over enforcement.

>> Read More

We encourage you to visit our Environmental Law LinkedIn Showcase page, where additional articles are published.
Tafts Environmental Law Newsletter is used to inform our clients and friends of significant new developments and current issues in environmental law. For more information about Taft Stettinius & Hollister LLP, please visit http://www.taftlaw.com.

These materials have been prepared by Taft Stettinius & Hollister LLP for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. No person or organization should act upon this information without first seeking professional counsel.

We cannot and do not represent you until our client intake process is completed. Further, we reserve the right to accept or decline representing any person or organization in any matter. Accordingly, please do not send us any confidential information about any matter until you receive a written statement from us advising you that we represent you (an
engagement letter). When you receive an engagement letter from one of our attorneys, you will be our client, and we may exchange confidential information freely. Again, do not send us unsolicited confidential information until you speak with one of our attorneys and get authorization to send that information to us.

Some aspects of this Web site may allow you to register for newsletters, events, functions, or seminars hosted by, sponsored by, or associated with Taft Stettinius & Hollister LLP. The transmission or receipt of any information related to registration for any event or service does not create an attorney-client relationship.

Taft Stettinius & Hollister LLP's Web site and associated materials may provide links to other websites that may be useful or informative.These links to third party sites or information are not intended, and should not be interpreted by readers, as constituting or implying our endorsement, sponsorship or recommendation of the third party information, products or services found there.

The following statement is required by many states, including Kentucky: "THIS IS AN ADVERTISEMENT."