A Really Interesting GW/SOL Case and a JD case
The Clarke v. Pacific Gas & Electric case below is a fascinating one, and brings up an old issue we kicked around a bit years ago at the EPA. When a spill occurs, but takes years to reach WOTUS, when does the SOL begin to accrue? When the spill happened? Or when it reaches the water? For purposes of the motion to dismiss, the court in Clarke concludes the latter, but the judge left open the possibility of a different outcome pending discovery. This is a tricky issue, and open to lots of debate with many subissues. Expect a motion for summary judgment.
The defendant also raised a clever, albeit losing argument that the discharge was not by a "person" because the discharges were not caused by PG&E, but by "the confluence of a number of natural atmospheric and geological processes." I think the court was right to reject the argument, but a tip of the hat to the PG&E lawyers for thinking that one up.
Mashni v. USACOE, 2021 WL 1579674 (D. S.C. 2021) (granting motion to dismiss, held that there was no final agency action where Corps declined to issue final JD after referring the case to the U.S. Attorney’s Office for enforcement; Corps does not have a nondiscretionary duty to issue a JD upon a party’s request; denied motion for writ of mandamus ordering Corps to issue JD because Corps is under no statutory or regulatory duty to issue a JD upon request)
Clarke v. Pacific Gas & Electric Co., 2021 WL 1580829 (N.D. Ca. 2021) (denying motion to dismiss, held that discharges to bay via groundwater from historic gas production facility was a discharge by a person from a point source; rejected argument that discharges were too amorphous to be attributed to a “person”; rejected argument that the initial discharge that occurred between 1898 to 1906 should be the focus of the SOL inquiry (defendant argued that a series of discharges constitute a single CWA violation that occurred decades ago); rather, each discrete discharge to WOTUS is counted depending on the facts of the discharge; plaintiff sufficiently alleged a point source discharge were the original facility was a confined, discrete conveyance and rejected argument that contaminated groundwater is nonpoint source pollution; plaintiff sufficiently made defendant aware of the alleged violations in the its 60-day notice letter)
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