Jul 28 14

William T. Session Speaks on Panel for the Missouri Waste Control Coalition (MWCC) at its 2014 Environmental Conference at the Lake of the Ozarks, Missouri

by The Session Law Firm

KANSAS CITY, MO (July 9, 2014) – William T. Session, President of The Session Law Firm, PC an environmental law firm based in Kansas City, Mo., participated on a panel at the meeting of the Missouri Waste Control Coalition on June 30, 2014.  Mr. Session presented on an important, emerging Clean Water Act issue.

Mr. Session’s presentation was titled “Residual Designation Authority: Bombshell or Bust?”.  The presentation addressed the fact that several nationally prominent environmental groups have recently filed “residual designation authority” petitions for stormwater discharges across several EPA Regions.  This “authority” may be unfamiliar to some but it’s actually a very big deal.

RDA, in general, deals with urban stormwater runoff and the challenges this water source presents to water quality of the nation’s waterways. Urban runoff is second only to agricultural runoff as a source of water quality impairment and can be more damaging to water quality than agricultural sources.  Many point sources of urban stormwater runoff escape coverage under the National Pollutant Discharge Elimination System though these sources can generate runoff, but they generally aren’t industrial and therefore escape coverage under the industrial program.  Owners and operators of facilities (private and public) should be aware of this developing regulatory initiative.  Responding to efforts to deploy and administer RDA permitting can be costly.  The presentation addressed these concerns and related responses from the regulated community.

The Missouri Waste Control Coalition (MWCC) is a 400-member not-for-profit organization which is concerned with environmental issues.  The statewide organization is a coalition of citizens, businesses, consultants, regulators, and others concerned with the management and disposal of generated wastes and other environmental issues.

Annually, the MWCC sponsors the MWCC Environmental Conference, a conference that has run continuously since 1972, making it one of the oldest environmental conferences in the nation.

About The Session Law Firm, PC

The Session Law Firm, PC has delivered compelling solutions in the practice of environmental law for over 20 years. When experience meets innovation, the results are impressive.  Add a responsive group of exceedingly knowledgeable attorneys, and you have The Session Law Firm.  When the deepest understanding of the environment is required and innovation in crafting solutions to complex environmental legal challenges is necessary, The Session Law Firm excels.

The firm has been involved in many forms of complex environmental issues and litigation across the Midwest and throughout the United States. For more information, visit www.session.com.

Oct 3 12

SUPREME COURT AGAIN ASKED TO RESOLVE INTERPLAY BETWEEN CERCLA’S CONTRIBUTION AND COST RECOVERY PROVISIONS

by The Session Law Firm

Solutia, Inc., has filed a Petition for a Writ of Certiorari (Cert Petition) before the Supreme Court. The Cert Petition asks the Supreme Court to reverse a recent Eleventh Circuit ruling that a party with a viable CERCLA Section 113 contribution claim could not also seek recovery under CERCLA Section 107, even when that party has incurred costs voluntarily under a consent decree.

This issue is very familiar to The Session Law Firm (TSLF) who filed a Cert Petition on behalf of Morrison Enterprises, LLC, on essentially the same issue., i.e., whether or not Morrison could seek recovery of response costs it voluntarily incurred pursuant to an administrative order on consent (AOC) and then later a consent decree, responding to contaminants for which it was not responsible for releasing. In fact, Solutia, Inc., filed an amicus brief in support of Morrison’s Cert Petition. Unfortunately, the Supreme Court denied Morrison’s Cert Petition. Hopefully it will grant Solutia’s petition because this issue, left unresolved by the Supreme Court in United States v. Atlantic Research Corp., is very critical to parties who voluntarily enter into AOCs or consent decrees to avoid litigation, only then to be bound by the onerous limitations of CERCLA Section 113.

Solutia’s Cert Petition seeks review, primarily based on the fact that the Eleventh Circuit decision decides an important federal question that conflicts with relevant decisions of the Supreme Court, i.e., Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research. In support of its petition, Solutia has offered three basic arguments.

First, Solutia argues that the Eleventh Circuit and the other circuit courts with which the Eleventh Circuit agreed, have elevated policy considerations over CERCLA’s clear statutory text. Next, Solutia argues that, even lacking a clear circuit split, the question of whether costs incurred under a consent decree are recoverable under Section 107, Section 113, or both, is causing extensive confusion among the courts, parties considering entering into agreements to conduct cleanups, and even the United States. Last Solutia argues that the suit raises an issue of exceptional importance worthy of resolution by the Supreme Court.

We, as environmental practitioners well versed in this issue, eagerly await the Supreme Court’s decision on whether or not it will grant Solutia’s Cert Petition.  For more on this critical issue, read Morrison’s Cert Petition as well as the Brief of Amici Curiae Pharmacia Corporation (F/K/A Monsanto Company) and Solutia Inc. in Support of Morrison’s Cert Petition, link below. 

http://www.scotusblog.com/2011/09/petitions-to-watch-conference-of-september-26-2011-2/

Aug 22 12

EPA Drops Alleged Clean Water Act Violations Against Client in the Aftermath of the Watershed United States Supreme Court CWA Case Sackett v. The United States of America

by The Session Law Firm

On July 31, 2012, the General George C. Marshall Memorial Post No. 2184, Inc., a chapter of the Veterans of Foreign Wars organization (“VFW”) received notice that the Environmental Protection Agency (“EPA”) was terminating a Findings of Violation and Order for Compliance (“Compliance Order”) previously issued to the VFW on July 7, 2011.

The Compliance Order, issued to the VFW for alleged violations of Section 404 of the Clean Water Act, would have required the VFW to spend hundreds of thousands of dollars “restoring the Site or mitigating lost wetlands and/or stream functions” that the VFW and its technical consultants claim had not been impacted.

The VFW, its attorneys, The Session Law Firm (“TSLF”), and its technical consultants, Ray and Susan Kagel, Kagel Environmental, presented legal and technical arguments to the EPA in support of the VFW’s position that the EPA’s demands for restorative actions were unwarranted. These arguments, made even stronger in light of the Sackett opinion rendered by the Supreme Court during the pendency of this matter, focused on the lack of technical basis for the Compliance Order. The VFW’s technical support, Ray and Susan Kagel were also the experts for the plaintiffs in Sackett.

While not explicitly acknowledged, the Kagels’ and TSLF strongly suspect EPA took into account the technical insufficiency of its Compliance Order in light of parties’ recent ability to challenge the factual and legal bases of such orders in court. However, whatever the “stated” reason for terminating the Compliance Order, it was a welcome victory for the VFW and TSLF.

Mar 14 12

Will the Sacketts Prevail?

by Jacqueline Hartis

On January 9, 2012, the United States Supreme Court heard oral arguments in Sackett v. EPA, Supreme Court Case No. 10-1062, a case that has the potential to change Environmental Protection Agency (“EPA”) administrative enforcement under the Clean Water Act (“CWA”). We eagerly await the Supreme Court’s decision in this present day case of David [the Sacketts] versus Goliath [the EPA].

The issues before the Supreme Court in Sackett v. EPA were (1) whether the Sacketts, [the petitioners the case] could seek pre-enforcement judicial review, pursuant to the Administrative Procedure Act, 5 U.S.C. § 704 (“APA”), of an administrative compliance order issued by the EPA; and (2) whether, if not, their inability to seek pre-enforcement judicial review of the administrative compliance order violates their rights under the Due Process Clause?

Case History: Approximately four (4) years ago, the EPA issued a compliance order against Mike and Chantell Sackett, charging them with violating the Clean Water Act by filling in a portion of their property allegedly containing a jurisdictional wetland. The compliance order required that the Sacketts restore their property to its alleged predisturbance wetlands condition and also imposed upon them the threat of tens of thousands of dollars per day in civil fines if they did not immediately comply with the order.

The Sacketts petitioned EPA for a hearing to challenge the wetland determination, and after EPA refused, filed suit in district court. EPA argued that review of an agency order was barred unless the agency first sued and insisted that the Sacketts comply with the order, threatening penalties if they did not. The district court agreed, and dismissed the Sacketts’ suit for lack of jurisdiction. The Sacketts then appealed to the Ninth Circuit, who affirmed the district court. The Sacketts appealed the matter to the Supreme Court, who granted cert on June 28, 2011.

Legal Framework: The CWA and its implementing regulations provide the EPA [and the Corps of Engineers] with a number of different mechanisms by which to enforce the CWA’s prohibition on discharging pollutants into regulated waters. As relevant here, when EPA finds that any person is in violation of Section 1311 of the CWA [the provision prohibiting unauthorized discharges of pollutants into navigable waters of the United States], the agency shall either issue an administrative compliance order pursuant to 33 U.S.C. Section 1319(a)(3) requiring the person to comply with such section or requirement [the instant case], or bring a civil action to enforce the Act pursuant to Section 1319(b). Section 1319(b) authorizes EPA to initiate a judicial enforcement action for appropriate relief, including a temporary or permanent injunction for any violation for which EPA is authorized to issue a compliance order under Section 1319(a). In an action brought under Section 1319(b), the district court may also impose civil penalties for violation of the CWA and for violation of an administrative compliance order issued pursuant to Section 1319(a)(3). The CWA provides for civil penalties up to $37,500.00 per day for both violation of the CWA and violation of administrative compliance order.

Stated another way, when the EPA believes that a landowner has engaged in a violation of environmental laws, it may issue an administrative compliance order requiring the landowner to take certain actions. If the landowner does not comply with the administrative compliance order, the EPA may seek judicial enforcement of the order (and seek penalties for both the alleged violation of the CWA and non-compliance with the administrative compliance order). This puts parties who contest the validity of the allegations against it, in a bad situation because currently, a party must wait until the EPA seeks judicial enforcement of an administrative compliance order before the landowner can challenge the order, thus exposing itself to potential penalties for non-compliance with the order.

Conclusion: The decision in Sackett v. EPA could alleviate the threat of potential penalties for non-compliance with an order by allowing for direct judicial appeal of administrative compliance orders. In that way, alleged CWA violators would essentially “get their day in court” to argue the EPA’s finding of jurisdictional wetlands instead of being forced to comply with the order or face the threat of penalties for not complying with the order while waiting to see if the EPA will seek to enforce the order.

Like many environmental practitioners, we have a personal interest in the outcome of the Sackett case, because we represent a client in almost identical procedural circumstances as the Sacketts. In fact…our client even has the same environmental consultants as the Sacketts, Ray and Susan Kagel. If oral arguments are any predictor of how the Supreme Court may rule in this case, things may be looking up for the Sacketts.

 

 

Sep 19 11

Petition for Writ of Certiorari filed by TSLF makes Petitions to Watch List

by Jacqueline Hartis

The Session Law Firm, on behalf of its client Morrison Enterprises, LLC, filed a Petition for Writ of Certiorari (“Cert Petition”) requesting the Supreme Court review the judgment of the United States Court of Appeals for the Eighth Circuit in Morrison Enterprises, LLC v. Dravo Corporation, 638 F.3d 594 (8th Circuit 2011).  The question presented by the Cert Petition is whether a party that has incurred response costs either pursuant to an administrative order, or to a consent decree following suit under § 106 or §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), may ever seek to recover those “compelled” costs under §107(a), or whether the exclusive remedy for cost recovery is contribution under CERCLA § 113(f)?

We were very excited to find out that Morrison’s Cert Petition has made The Supreme Court of the United States Blog’s (SCOTUSblog) “Petitions to Watch” list for the Supreme Court’s September 26th conference.   To read Morrison’s Cert Petition as well as the Brief of Amici Curiae Pharmacia Corporation (F/K/A Monsanto Company) and Solutia Inc. in Support of Morrison’s Cert Petition, follow the link below. 

http://www.scotusblog.com/2011/09/petitions-to-watch-conference-of-september-26-2011-2/