Clean Water Act

October 30, 2013

Environmental group sues company over waste dumped into in Allegheny River

Source: The Pittsburgh Tribune-Review, October 28, 2013
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An industrial treatment plant near Allegheny National Forest is dumping illegal amounts of salty, contaminant-laden wastewater from drillers into the Allegheny River in violation of state and federal laws, an environmental group charged in a federal lawsuit.

The state director of Clean Water Action said the group can’t say whether Waste Treatment Corp.’s discharges into the river in Warren include wastewater from hydraulic fracturing, or fracking, the process of getting gas from the Marcellus shale.

“From our perspective, we just don’t want it in the river,” said Myron Arnowitt, whose group asked a federal judge in the lawsuit filed Monday to order Waste Treatment to stop discharging and fix any damage done to the river.

Waste Treatment did not return a call for comment.

The company has said it does not discharge fracking water, Arnowitt said. Marcellus drillers statewide announced a voluntary effort in 2011 to stop sending fracking water to such plants.

The company has a discharge permit dating to 2003, but Arnowitt said it does not cover the types of pollutants it is discharging. The state Department of Environmental Protection is reviewing an application for a new permit.

“We’re concerned that DEP is delaying action,” he said. “While they’re trying to figure out what this permit should be, (the company) continues to discharge.”

A DEP spokesman said he could not comment.

The DEP in September filed notice in Commonwealth Court that it was suing Waste Treatment but did not include any specific complaints.

A DEP study last year found pollutants reduced water quality downstream of the plant to levels that can’t support aquatic life, leaving the water two- to four-times saltier than sea water, Arnowitt said. Warren is about 150 miles upriver from Pittsburgh.

Clean Water Action is suing under the Clean Water Act and Endangered Species Act.


October 8, 2013

Chemicals from coal ash leaching into groundwater near Flemington community

Source:, October 5, 2013
By: Kate Elizabeth Queram

Before Kimberly Wood takes a shower, brews a cup of tea or boils water for cooking, she makes a deal with herself: Don’t think about it. Just don’t think about it. Don’t think about how this sip, that bite, the very next drop of water could finally be the one that makes her sick.

Wood is one of about 200 residents in the Flemington community, a tiny, low-income neighborhood off U.S. 421, just south of Duke Energy Progress’ Sutton Steam Plant. In 1978, the neighborhood’s drinking water was contaminated when a host of pollutants from a nearby landfill seeped, unnoticed, into private wells. The mess was eventually cleaned up when the neighborhood was placed on New Hanover County’s water system via two drinking-water wells, now managed by the Cape Fear Public Utility Authority.

But those two wells were drilled just a half mile from the power plant, where arsenic, boron and other poisons are leaching from unlined coal-ash ponds into area groundwater supplies. The contaminated water plume is slowly creeping toward the new wells, turning Flemington residents once again into sitting ducks. Most of them have no idea, and those who do can afford to do little beyond wait and hope.

“For a long time, I didn’t want to drink the water,” said Wood, a full-time student at Cape Fear Community College. “But everything we do is water. You make tea with it, you cook with it, you bathe your animals in it. I’m a full-time student. I don’t have a job. You don’t just go buy things like bottled water.”

October 7, 2013

Dangerous levels of radioactivity found at fracking waste site in Pennsylvania

Source: Guardian Web, October 3, 2013
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Scientists have for the first time shown dangerous levels of radioactivity and salinity at a shale gas waste disposal site that could contaminate drinking water. If the UK follows in the steps of the US “shale gas revolution”, it should impose regulations to stop such radioactive buildup, they said.

The Duke University study, published on Wednesday, examined the water discharged from Josephine Brine Treatment Facility into Blacklick Creek, which feeds into a water source for western Pennsylvania cities, including Pittsburgh. Scientists took samples upstream and downstream from the treatment facility over a two-year period, with the last sample taken in June this year.

Elevated levels of chloride and bromide, combined with strontium, radium, oxygen, and hydrogen isotopic compositions, are present in the Marcellus shale wastewaters, the study found.

Radioactive brine is naturally occurring in shale rock and contaminates wastewater during hydraulic fracturing known as fracking. Sometimes that “flowback” water is re-injected into rock deep underground, a practice that can cause seismic disturbances, but often it is treated before being discharged into watercourses.

Radium levels in samples collected at the facility were 200 times greater than samples taken upstream. Such elevated levels of radioactivity are above regulated levels and would normally be seen at licensed radioactive disposal facilities, according to the scientists at Duke University’s Nicholas School of the Environment in North Carolina.…

August 30, 2013

Legal Fees Not Recouped in Pollution Suit

Read here about a judge’s decision stating that legal fees in a pollution suit can not be recouped.


August 14, 2013

NC four years behind on Clean Water Act rules

Source: The News & Observer (Raleigh, NC), August 11, 2013
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Once an innovative leader in water quality science, North Carolina has fallen behind in meeting federal pollution standards.

North Carolina is the only state in its EPA region — which includes Tennessee, South Carolina, Georgia, Kentucky, Alabama, Mississippi and Florida — that has not adopted EPA-approved rules on measuring toxic metals like arsenic, cadmium, copper, silver and zinc in its water, according to a letter the EPA sent on July 31 to Tom Reeder, the director of the Division of Water Resources, within the state Department of Environment and Natural Resources.

DENR sets standards limiting surface water pollution, which must meet requirements set by the federal Clean Water Act, a law that tells states how to protect the country’s streams, oceans, rivers and other bodies of water, and mandates restoration of polluted waterways.

Every three years, DENR is required to hold a public hearing on water quality as part of a review process to update rules that aren’t up to par.

But DENR hasn’t updated those rules in six years and is four years behind in asking for public input — the last year it held a hearing was 2006. The 2008-2010 review is ongoing, though it should have been completed in 2009.

“We continue to allow what we now know to be too much pollution to go into our water ways and into our fish, and that is inexcusable,” said Sam Perkins, the Catawba Riverkeeper, who measures damage to the river and reports problems with pollution. “It’s a disservice to the public, to the people of North Carolina, to not even listen to them every three years” in a public hearing.…

July 30, 2013

NY Dairy Rules Lead to Lawsuit

Read here about lawsuit brought by environmental groups in New York over dairy farm regulations.


July 9, 2013

Stormwater Penalty Exceeds $475,000 for Three Road Construction Sites

Source:, July 7, 2013

The Kansas Department of Transportation (KDOT) has entered into a federal Consent Decree with the Environmental Protection Agency (EPA) and the U.S. Department of Justice to resolve construction stormwater violations under the Clean Water Act. The Consent Decree, published in the Federal Register on Monday, July 8, 2013, and lodged in federal court on July 1, requires KDOT to pay a civil penalty of $477,500.

According to EPA’s Press Release, “[v]iolations included the failure to install or implement adequate stormwater control measures, including the failure to timely stabilize disturbed soils, the failure to properly maintain stormwater controls, the failure to develop an adequate stormwater pollution prevention plan and update the plan as appropriate, and the failure to maintain the plan and other records on site.”

The Consent Decree also requires KDOT to undertake substantial injunctive “Compliance Requirements” including:
• Designating a statewide Stormwater Compliance Manager;
• Identifying an Area Engineer for every project;
• Selecting an Environmental Inspector for every site; and
• Performing third-party oversight inspections at environmentally sensitive areas in Kansas, which require a consultant or KDOT inspector not affiliated with the project to conduct additional inspections.

The Consent Decree is subject to a 30-day notice and comment period from the July 8 publish date in the Federal Register.

EPA’s and DOJ’s latest action on stormwater reflects the growing emphasis and focus on stormwater discharges by regulatory agencies. Two stormwater cases were argued before the U.S. Supreme Court in December 2012, and a federal court in Virginia recently held that the EPA cannot regulate stormwater flow as a “surrogate” to control sediment runoff.

For persons interested in learning more, Spencer Fane’s Environmental Practice Group (with presenters from the firm’s Denver, Kansas City, and St. Louis offices) hosted a complimentary 60-minute webinar on February 12, 2013, entitled “Navigating Uncertain Waters: Regulatory Developments in Clean Water Act Enforcement, Stormwater Permitting & Fracking.” CLICK HERE TO LISTEN TO THE WEBINAR.


June 14, 2013

Environmental Groups Sue Over Coal Pollution

Source: Hood River News, June 11, 2013
By: Ben Mitchell

Last week, several environmental groups made good on their promise from earlier this spring to sue BNSF railroad and a handful of coal export companies for allegedly continuing to pollute a litany of Gorge waterways with coal they say is coming from improperly loaded railcars.

The civil suit, which names the Sierra Club as the lead plaintiff, was filed in the U.S. District Court for the Western District of Washington in Seattle on June 4 and is a follow-up to a 60-day notice of intent to sue that was sent out by the same environmental groups April 2.

It alleges that BNSF and five coal export companies have repeatedly violated the Federal Water Pollution Control Act for years (commonly referred to as the Clean Water Act) by allowing coal chunks and dust to escape uncovered railcars during transport and pollute the land and water along BNSF rail lines. Defendants are accused of not having obtained a federal permit allowing the discharges of coal pollutants into U.S. waters, which lawyers for the plaintiffs claim is a moot point since these types of discharges “are not permitted under federal law.”

The coal in question is primarily extracted from massive Powder River Basin mines in Wyoming and Montana and then shipped on BNSF railroads — one of which winds right along the Columbian River on the Washington side of the Gorge — before arriving at a British Columbian coal terminal in Vancouver for export to Asian markets. The commodity is also shipped to Centralia where it is used in a coal-fired power plant.…

June 4, 2013

Do liability policies, particularly pollution liability insurance policies, exclude coverage for all injunctions? The Fifth Circuit says no

Source:, May 22, 2013
By: Robert S. Sanoff, Foley Hoag LLP

The Fifth Circuit handed down an important decision last week, Louisiana Generating LLC v. Illinois Union Insurance Company, clarifying the scope of coverage under a Premises Pollution Liability Insurance Policy. The policyholder sought coverage for a Clean Air Act suit by the United States alleging unpermitted major modifications that resulted in increased emissions of sulfur dioxide and nitrogen oxide. The insurer disputed coverage on the ground that the government under the Clean Air Act was seeking not remediation costs or compensatory damages but an injunction to repair emission control equipment to comply with regulatory standards. According to the insurer, injunctions were excluded from coverage under the Fines and Penalties exclusion to the policy.

Applying New York law, consistent with the insurance policy’s choice of law provision, the Fifth Circuit affirmed the District Court’s summary judgment decision requiring the insurer to provide a duty to defend. The Fifth Circuit noted that the complaint by the United States was not limited to an injunction requiring repairs to the emissions control equipment but also sought remedial costs to address the release into the atmosphere of unpermitted levels of certain pollutants.

While the possibility of remediation costs was sufficient to trigger the insurer’s duty to defend, the Fifth Circuit went on in perhaps its most significant holding to reject the insurer’s argument (which had been adopted by the lower court) that the policy excluded all injunctive relief in its Fines and Penalties exclusion which precluded coverage for ”Payment of criminal fines, criminal penalties, punitive, exemplary or injunctive relief.” The Fifth Circuit construed that exclusion narrowly limiting it only to injunctions that were part of a criminal or punitive fine or penalty. As the Fifth Circuit explained, many environmental laws, like the Clean Air Act, are structured to obtain compliance through either voluntary remediation work or court ordered injunctions, and it would make little sense if a Premises Pollution Liability Insurance Policy provided coverage for voluntary remediation work but did not cover the same work when done under a court order:

If the Fines and Penalties exclusion is a complete bar for coverage of costs associated with injunctive relief, the exception would potentially swallow the coverage afforded by the policy. The policy would not cover claims under major federal environmental statues, such as the CAA and the Clean Water Act, when they are enforced by the EPA or state agencies seeking injunctive relief to mitigate and remediate past pollution.


June 3, 2013

Wal-Mart pleads guilty in U.S. hazardous waste cases, to pay $82M

Source: Business Insurance, May 29, 2013

Wal-Mart Stores Inc. on Tuesday said it would pay nearly $81.63 million to the federal government as it pleaded guilty to charges that it improperly discarded hazardous waste such as bleach and fertilizer years ago.

The U.S. Department of Justice said that in cases filed by federal prosecutors in California, Wal-Mart pleaded guilty to six counts of violating the Clean Water Act by illegally handling and disposing of hazardous materials at U.S. stores.

The world’s largest retailer also pleaded guilty in Kansas City, Mo., to violating the Federal Insecticide, Fungicide and Rodenticide Act by failing to properly handle pesticides that had been returned by customers, the Justice Department said in a statement.

Wal-Mart said its plea agreements with the U.S. Attorneys’ Offices in the Northern and Central Districts of California, the U.S. Attorney’s Office for the Western District of Missouri and an administrative resolution signed with the Environmental Protection Agency bring an end to compliance issues that took place years ago.

Wal-Mart previously agreed in 2010 to pay $27.6 million to the state of California to settle a related lawsuit and agreed in 2012 to pay more than $1.25 million to the state of Missouri.

The issues involve prior practices such as throwing out lawn products such as fertilizer and pesticides in the trash rather than through a certified hauler.…