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 Supreme Court Gives Landowners Right to Pre-Compliance Judicial Review of Clean Water Act Orders Issued by US EPA in Sackett v. EPA
 Denied CEQA Challenge Remanded for Failure to Attach Corrective Action Plan to Negative Declaration
 Ninth Circuit Holds That Dry Cleaning Equipment Manufacturer Is Not Liable as an Arranger under CERCLA or on State Law Nuisance and Trespass Claims

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Supreme Court Gives Landowners Right to Pre-Compliance Judicial Review of Clean Water Act Orders Issued by US EPA in Sackett v. EPA

by Posted by Ladd Cahoon, Esq.

In a highly anticipated decision, the United States Supreme Court has ruled unanimously that the Clean Water Act (CWA) allows parties to seek and obtain judicial review of administrative compliance orders issued by US EPA under its authority.  The Court’s unanimous decision in Sackett v. Environmental Protection Agency, et al. (March 21, 2012) provides aggrieved property owners new recourse to address agency orders they believe lack jurisdictional authority.  It also deals a major blow to EPA’s and U.S. Army Corps of Engineers’ (“Corps”) top compliance tool under the CWA, and potentially provides a basis for claiming that pre-enforcement review is available with respect to administrative compliance orders issued under other environmental statutes, such as the Clean Air Act (CAA) and the Resources Conservation and Recovery Act (RCRA).  

The CWA prohibits the discharge of fill material into wetlands without a permit from the Corps.  The EPA and Corps share CWA enforcement authority.  EPA has three enforcement options: (1) administrative penalties; (2) civil enforcement actions in U.S. district court; or (3) administrative compliance orders (ACOs), which can compel alleged violators to remove illegally placed fill material.  Failure to comply with an ACO can result in up to $37,500 of potential liability for each day of non-compliance, in addition to the $37,500 of potential liability per day for the underlying CWA violation.

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Denied CEQA Challenge Remanded for Failure to Attach Corrective Action Plan to Negative Declaration

by Posted by Mary E. Wilke, Esq.

The California Fourth District Court of Appeal, in Citizens for a Responsible Equitable Environmental Development v. City of Chula Vista (June 10, 2011), remanded a lawsuit challenging the City of Chula Vista’s (“City”) decision to approve the construction of a Target store based on a mitigated negative declaration because the lead agency failed to attach the Corrective Action Plan (“CAP”) for the site to the negative declaration.  The Appellate Court held that the failure to attach the CAP makes it uncertain whether the construction of the store would cause further migration of the hazardous materials addressed by the CAP into groundwater.

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Ninth Circuit Holds That Dry Cleaning Equipment Manufacturer Is Not Liable as an Arranger under CERCLA or on State Law Nuisance and Trespass Claims

by Posted by Michael Einhorn, Esq.

In Team Enterprises, LLC v. Western Investment Real Estate Trust, No. 10-16916, 2011 U.S. App. LEXIS 15383 (9th Cir., Cal. July 26, 2011), the Ninth Circuit held that the manufacturer of a machine used in the dry cleaning process may not be held liable for contribution to environmental cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or on State law nuisance and trespass claims.

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