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Environmental, Energy and Climate Change Law & Regulation Reporter


Activists’ Suit Seeking to Challenge State Water Quality Certifications Likely to Fall Short by Parker Moore and Richard Davis, Beveridge and Diamond, P.C., Washington, D.C.67


Recent Investigations, Settlements, Penalties and Sanctions71


Circuit Court of Appeals:

Second Circuit Holds Declaratory Judgment Is Proper to Determine Liability for Future Cleanup Costs under CERCLA75

Solvent Chemical Company, Inc. v. Olin Corporation, ___F.3d___, Case Nos. 10-2026, 10-2166, 10-2383 (2nd Cir. Dec. 19, 2011).

District Court:

District Court Finds EPA Is Responsible for Approving Section 303 Lists of Impaired Bodies of Water under the Clean Water Act77

Barnum Timber Co. v. U.S. Environmental Protection Agency, ___F.Supp.2d___, Case No, C 08-01988 (N.D. Cal. Dec. 16, 2011).

District Court Dismisses State Law Claims on Notice Grounds—Denies Motion to Dismiss CERCLA and RCRA Claims79

Fitzgibbons v. City of Oswego, ___F.Supp.2d___, Case No. 5:10-CV-1038 (N.D. N.Y. Dec. 13, 2011).

District Court Holds State Complaint which Does Not Pursue CWA Enforcement of Selenium Mining Limits Cannot Meet ‘Diligent Prosecution’ Requirements82

Ohio Valley Environmental Coalition, Inc. v. Patriot Coal Corporation, ___F.Supp.2d___, Case No. 3:11-0115 (S.D. W.V. Dec. 7, 2011).

District Court Holds CERCLA Contribution Claim Is Exclusive Remedy for PRP Who Incurs Judgment-Compelled Cleanup Costs84

State of Tennessee v. Roane/Third Party Plaintiffs Holdings Limited, ___F.Supp.2d___, Case No. 3:10-CV-467 (E.D. Ten. Dec. 14, 2011).

District Court Finds the Doctrine of Successor Liability Applies in a Clean Air Act Suit86

U.S. v. Louisiana Generating, LLC, ___F.Supp.2d___, Case No. 09-100-JJB-CN (M.D. La. Dec. 1, 2011).

‘Act of God’ and ‘Third Party’ Defenses Not Available to Current Owner of Superfund Site Who Knew of Prior Site Contamination88

U.S. Environmental Protection Agency, California Department of Toxic Substances Control v. Sterling Centre Corp Inc., ___F.Supp.2d___, Case No. 2:08–CV–02556 (E.D. Cal. Dec. 8, 2011).

District Court Finds State’s Clean Air Act SIP Requires Agencies to Apply Reasonably Available Control Technology to GHG Emissions from Oil Refineries90

Washington Environmental Council v. Sturdevant, ___F.Supp.2d___, Case No. C11-417 MJP (W.D. Wash. Dec. 1, 2011).


California Court of Appeal Finds No Vested Right to Emit Air Pollution—Also Holds State Air Programs Not Preempted by Clean Air Act92

Hardesty v. Sacramento Metropolitan Air Quality Management District, ___Cal.App.4th___, Case No. C065784 (Cal. App. 3rd Dist. Dec. 27, 2011).