• Mark Ryan

New Penalty/505(a) Preemption Case

Updated: 5 days ago

This case addresses issues that commonly arise in NDPES permit enforcement cases: preemption and daily max versus monthly average counting for days of violation. The holding on preemption is worth reading because it comes up often and defendants lose this one more often than not.

Lower Susquehanna Riverkeeper v. Keystone Protein Co., No. 1:19-cv-01307 (M.D. Pa. 2021) (on motion for summary judgment in case involving alleged violations of NPDES permit, held that plaintiffs had representational standing; prior state consent agreements negotiated with defendant that did not involve public notice and comment did not preclude the present lawsuit under § 505(a)(1) or § 309(g)(6)(A) because they were not brought under a law comparable to the CWA; court adopted the “rough comparability” test for determining comparability to the CWA; CWA is a strict liability statute; court granted SJ on 288 daily max violations, but deferred until the penalty phase SJ on all monthly average violations to determine whether they overlapped with the daily max violations)

51 SJ opinion
Download PDF • 139KB

If you would like to receive email notifications of new blogposts, go to the signup button above, leave your email, and you'll be alerted to updates.

31 views2 comments

Recent Posts

See All

Waterkeeper Files NOI in Coal Ash Case

Waterkeeper last week served the NOI below on Ameren Corp, which is an electric utility in Missouri. The NOI alleges that Ameren is discharging without a permit wastewater from coal ash ponds into the

Two New (Oddball) CWA Cases

These two cases bring up issues one seldom sees in the case law, which makes them mildly interesting. Reading the clever arguments raised by defendants in the Earth Island case below reminded me of my

A Modest Proposal to Fix WOTUS

As I have argued numerous times in the past, Congress needs to fix the WOTUS problem. They created it by so vaguely defining “navigable waters,” and only they can permanently fix the problem (assuming

© 2016 by Ryan & Kuehler PLLC.

  • Facebook Basic Black
  • LinkedIn Basic Black
  • Twitter Basic Black