• Mark Ryan

Six New Cases

We have three Circuit Court cases this round, which is unusual. None are earth-shaking, but the Rio Hondo case is worth a read if TMDL/anti-backsliding/WQ permit limits are your thing. The Center for Biological Diversity v. EPA case below is an interesting read. The judge gave the proposed intervenors a choice of how to participate, and they chose wrong. You don't often see such motions denied.

The last case below, Kernen Construction, is probably the most interesting read because we don't see a lot of penalty cases handed down by judges and she walks through each of the 309(d) penalty factors. Plaintiffs may have missed an opportunity for a much bigger penalty had they bothered to put on an economic benefit case.

San Antonia Bay Estuarine Waterkeeper v. Formosa Plastics Corp., 2021 WL 1726813 (unreported) (5th Cir. 2021) (reversing district court holding that defendant violated terms of consent decree by discharging plastic particles from historic operations; clear reading of the decree is that only new discharges of plastic are subject to stipulated penalties)

Rio Hondo Land & Cattle Co., L.P. v. EPA, ___ F.3d ___, 2021 WL 1681733 (10th Cir. 2021) (denying petition for review of EAB decision in favor of NPDES permit holder, held that permit issued in compliance with nutrient TMDL did not violate anti-backsliding rule because the rule does not apply under 303(d)(4)(A) where the receiving water has not met WQS; the elimination from the permit of concentration-based limits was consistent with the TMDL which focusses on mass loading to the water body)

Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc., ___ F.3d ___, 2021 WL 1608397 (1st Cir. 2021) (affirming district court dismissal of citizen suit on grounds that state had previously commenced and diligently prosecuted a state enforcement action for the same violations as alleged by plaintiffs; held that the 309(g)(6)(A)(ii) bar applied were the state’s law was comparable to the CWA and the state action was brought pursuant to that law; record showed that the state had commenced and was diligently prosecuting where it inspected multiple times with follow-up to address on-going issues)

Center for Biological Diversity v. EPA, 2021 WL 1734921 (D.C. D.C. 2021) (denying parties motions to intervene in case challenging EPA’s approval of Florida 404 assumption; held that the Florida Chamber of Commerce and the Association of Florida Community Developers had not established standing to intervene and their claims of future harm were too speculative)

Nevada Irrigation Dist. v. Sobeck, 2021 WL 1699987 (D.C. D.C. 2021) (granting motion change venue to N.D. Cal. in case challenging finding of waiver of 401 cert. on grounds that state did not act within one year; held that N.D. Cal. was the appropriate venue where both parties resided or were close by and the local courts were less busy)

Californians for Alternatives to Toxics v. Kernen Construction, 2021 WL 1734897 (N.D. Cal. 2021) (after defendant admitted liability for industrial stormwater discharges, held that a $2,087,750 civil penalty should be assessed for thousands of violations, rejecting plaintiffs proposed penalty of $22,940,000; most of the violations did not involve actual discharges, therefore justifying a significant reduction from the statutory max; the record did not support the finding of any economic benefit; there was no history of violations outside of the current action; regarding good-faith efforts to comply, defendants did not prove that they have done as much as they claimed to reach compliance; motion for injunctive relief deferred pending follow-up hearing)

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