News And Seminars From Rich & Henderson

UPCOMING January 3-7, 2018 -

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Tim Henderson will Co-Chair at the 35th National Environmental Law Conference in Vail, Colorado for the Environmental, Land Use, Energy, and Litigation seminar. Mr. Henderson will facilitate a conversation where program participants will gain insights from experts across the country on the subject matter. Participants will also have the unique opportunity to catch up on a variety of environmental, land use, and energy issues such as:

  • Citizen suits
  • Changing perspectives on Federalism, local, state and regional climate policies and action
  • HOA governance and land use/environmental matters
  • Past, present and future aesthetic land use regulation
  • Land use case law
  • Conservation easements
  • Tax tips
  • Real estate development prospects under the Trump administration
  • Development agreements
  • Chemical releases to the environment and their implications
  • Regulatory takings law developments

Mr. Henderon's Co-Chairs are respected environmental attorneys Gregor I. McGregor, McGregor & Legere, PC, Boston, MA, and Brian J. Connolly, Otten Johnson Robinson Neff + Ragonetti PC, Denver, CO.

June 30, 2017 - Soil Safe, Inc., a recycling company for which Rich & Henderson acts as general counsel, successfully defended a Resource Conservation and Recovery Act's ("RCRA") citizen suit filed in the U.S. District Court for the District of New Jersey Camden in 2014 by the Delaware Riverkeeper Network ("DRN"). Tim Henderson worked closely with trial counsel Chris Gibson and Patrick Flynn, both with the New Jersey firm, Archer, on the strategy and preparation of the defense. Judge Bumb presided over a four day bench trial in March, 2017. On June 30, she issued the decision which found in favor of Soil Safe on all counts. In rejecting DRN's claims, Judge Bumb determined that Soil Safe's petroleum-contaminated soil recycling operations created legitimate products and not solid waste, that Soil Safe's operations create remedial capping and structural fill products which are used as intended to turn property filled with dredge spoil into useable land, e.g., for a county park, an equestrian park and construction of buildings for industrial/ commercial operations, and that the DRN introduced no credible evidence that the Soil Safe product created an imminent and substantial threat to the environment. The decision provides important guidance for navigating what Judge Bumb refers to as the 'dense, turgid, and circuitous,'" RCRA framework that governs the distinction between proper recycling and discarding of nonhazardous secondary materials. Consistent with the rulings of a number of federal cases she cites, Judge Bumb concludes that "material being used for its intended purpose is not being 'discarded,'" and, therefore, is not a solid waste.

June 2017 - In the case of Murr v. Wisconsin, the Supreme Court held that a land use regulation preventing the Murrs (Petitioners) from selling one of their two adjacent lots for development was a legitimate exercise of state power and not a Fifth Amendment taking. The Wild and Scenic Rivers Act of 1972 resulted in the adoption of state and local regulations in 1976 which were designed to protect designated rivers, including the St. Croix River which borders the two adjacent lots. The 1976 regulations included a provision that prevents the use or sale of adjacent lots under common ownership as separate building sites, unless each site has at least one acre of land suitable for development. Th;e Murrs acquired the lots in the 1990s. The Court's decision expanded the traditional means of characterizing a "property" for purposes of a takings claim beyond just state and local regulations to include additional considerations such as the reasonable expectations of the landowner's use of the property, the property's physical characteristics, its topography, and the surrounding environment. The Court reasoned that in addition to the Murrs' knowledge of state and local laws that effectively merged their two lots, the Murrs could not have reasonably expected to sell or develop their lots separately because of their size and position by a river.

January 2017 - Tim Henderson was the program co-chair of the Environmental Law, Land Use, Energy and Litigation section for the 34th Annual National CLE Conference in Snowmass, Colorado. He also facilitated a session addressing climate change, the 2015 Paris Accord, the Clean Power Plan, adaptation and resiliency tools, and change predicted by the Trump administration. Information for the 2018 National CLE Conference can be found at: http://nationalcleconference.com/programs/.

December 2016 - In the appeal of Piney Orchard Community Association v. Maryland Department of the Environment et al., No. 1124, September Term, 2015, before the Maryland Court of Special Appeals, Partner Tony Gorski and Associate Peter Hershey, in conjunction with the Maryland Department of the Environment, successfully defended the circuit court's decision to affirm MDE's issuance of a refuse disposal system permit for a rubble landfill. The appeal resulted in a reported decision, which can be found at: http://www.mdcourts.gov/opinions/cosa/2016/1124s15.pdf.

December 2016 - In the appeal of Piney Orchard Community Association v. Tolson and Associates, No. 1824, Sept. Term, 2015, before the Maryland Court of Special Appeals, Partner Tony Gorski and Associate Peter Hershey, in conjunction with Anne Arundel County, successfully defended the circuit court's decision dismissing a complaint challenging a rubble landfill for failure to exhaust administrative remedies and pursuant to the doctrine of collateral estoppel.

December 2016 - In the appeal of Clayland Farm Enterprises, LLC v. Talbot County et al., Case No. 15-1755, before the United States Court of Appeals for the Fourth Circuit, Partner Mark Gabler and Associate Peter Hershey successfully obtained reversal and remand of the District Court's decision dismissing the case on ripeness grounds. The case presents important issues about the scope of a County's authority to impose moratoriums and designate properties pursuant to Maryland's tier mapping requirements.

December 2016 - In the case of Hartford Fire Insurance Company v. The Harborview Marina & Yacht Club Community Association, Inc., Civil No. PJM 16-769, pending before the United States District Court for the District of Maryland, Senior Partner Warren Rich and Associate Peter Hershey successfully obtained dismissal of the case from the Court's admiralty jurisdiction. The case involves an insurance coverage dispute concerning the collapse of a pier located within the Harborview Community in Baltimore City.

November 2016 - In Maryland's first Contested Case Hearing objecting to MDE's approval of a Comprehensive Nutrient Management Plan (CNMP) for a family farm CAFO, Partner Tony Gorski successfully opposed and obtained a dismissal of the challenge in In The Matter Of Mary Clark, Case No. OAH No. MDE-LMA-051-16-14338.

October/November 2016 - The EPA has approved and published a final rule that changes many of the long-standing requirements of the Resources Conservation and Recovery Act ("RCRA") for generators of hazardous waste. Among many other changes, the new rule converts generators into Treatment, Storage, and Disposal Facilities ("TSDF") subject to RCRA permitting requirements for any deviation from the accumulation requirements, and not just an exceedance of an accumulation time or quantity limit under the current rule. The new rule also significantly increases record-keeping and testing responsibilities of large quantity generators ("LQG") and small quantity generators ("SQG") of hazardous waste. Nearly all facilities that generate more than 1 kg of hazardous wastes will be classified as LQGs and required to manage their non-acutely hazardous wastes as LQG wastes. The effective date of the final rule is May 30, 2017 and is available here.

September 2016 — Partner Mark Gabler argued before the United States Court of Appeals for the Fourth Circuit on behalf of the Appellants in the case of Clayland Farm Enterprises, LLC v. Talbot County et al., Case No. 15-1755. The appeal was noted after the District Court dismissed the complaint raising constitutional and civil rights claims, among others, on ripeness grounds. The case involves important issues about the scope of a county's authority to impose moratoriums and designate properties pursuant to Maryland's tier mapping requirements.

September 2016 - Rich & Henderson, P.C., submitted comments to the Maryland Department of Environment regarding the Department's tentative determination to issue General Discharge Permit No. 15 MM (NPDES No. MDG49). The comments address the impacts and effects of the Department's proposed changes to the permitting requirements for discharges from mineral mines, quarries, borrow pits, and concrete and asphalt plants, as well as specifically how these changes will impact the mining industry and the waters of the state of Maryland. Additionally, the comments highlight and analyze the tentative determination's enforcement provisions, enabling authority, methods of measuring pollutants and pH levels, associated costs and obligations, and ambiguities in the draft.

July 2016 — Senior Partner Warren Rich and Associate Peter Hershey argued before the United States District Court for the District of Maryland on behalf of the Defendant/Cross-Plaintiff in the case of Hartford Fire Insurance Company v. Harborview Marina & Yacht Club Community Association, Case No. 8:16-cv-00769. The case involves an insurance coverage dispute concerning the collapse of a pier located within the Harborview Community in Baltimore City.

June 2016 --The Frank R. Lautenberg Chemical Safety for the 21st Century Act (H.R. 2576), better known as the amendments to the Toxic Substances Control Act (TSCA), took effect on June 22. Under the amendments, EPA will utilize a two-step process to regulate new and existing chemicals. The first step is risk evaluation which requires EPA to prioritize which chemicals to regulate based on their potential hazards, exposures, and risks. The second step requires EPA to promulgate a risk management rule for any chemical that it determines poses an unreasonable risk to avoid risky exposures. These risk management rules can include phase-outs and bans of extremely dangerous chemicals. In addition to the new requirements for new and existing chemicals, the amendments also include changes which: (1) accelerate the testing of existing chemicals by imposing strict deadlines and allow EPA authority to require testing through orders, rules, or consent agreements; (2) implement new standards and requirements for claiming submitted information as confidential; (3) remove the cap for administration fees for actions, such as risk evaluation, protection of confidential information, and testing; and (4) allow for TSCA to preempt all state laws that would duplicate any findings made by EPA.

June 2016 The EPA issued a final rule technical amendment which revises the hazard categories for reporting under Sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA), due to the changes in the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard (HCS) to conform to the United Nations Globally Harmonized System of Classification and Labeling of Chemicals (GHS). Environmental Protection Agency, 81 FR 38104 (Jun. 13, 2016) (to be codified at 40 C.F.R. § 370). Prior to the adoption of the GHS, OSHA's HCS was performance-oriented; it established requirements for hazard determination but did not provide the specific language to convey the information or a format in which to provide to the users of the chemicals. Facilities are required to comply with reporting the new physical and health hazards on their Tier II inventory form for reporting year 2017, by March 1, 2018. Tables comparing the required language before and after adoption of the GHS provisions can be found at the following links:

April 2016 — Partner Tony Gorski published an article in the Maryland Bar Bulletin concerning the intersection of environmental law and agricultural law. The article can be found at: http://www.msba.org/Bar_Bulletin/2016/04_-_April/Agricuture_Law__Environmental_Law_and_Agriculture_Law__Working_Together_.aspx

March 2016 — Partner Tony Gorski and Associate Peter Hershey assisted a client in securing a temporal variance to finish construction of a rubble landfill in an administrative appeal held before the Anne Arundel County Board of Appeals.

March 2016 — Partner Mark F. Gabler assisted a client in securing a tidal wetlands license from the Maryland Board of Public Works to perform maintenance dredging of a channel in the Chesapeake Bay.

March 2016 — Partner Mark F. Gabler, in conjunction with attorneys from Saul Ewing LLP, assisted a client in securing dismissal of a petition for judicial review of a site plan and subdivision approval in a case pending before the Maryland Court of Appeals on the grounds that the petitioners lacked standing to maintain the appeal.

February 2016 — Senior Partner Warren K. Rich and Associate Peter Hershey assisted a client in securing a special exception for the expansion of an existing surface mine.

February 2016 — Partner Tony Gorski negotiated favorable resolution of an enforcement action brought by the state against a rental property owner for alleged lead paint violations involving multiple parcels in multiple counties.

October 2015 — Partner Tony Gorski successfully defended against a contempt action brought against a rural property owner by the state in an environmental remediation and wetland matter.

October 2015 — In the Circuit Court for Anne Arundel County, Partner Tony Gorski and Associate Peter Hershey, in conjunction with Anne Arundel County, successfully obtained dismissal of a complaint seeking to prohibit the construction and operation of a rubble landfill.

October 2015 — Partner Tony Gorski successfully appealed to the Maryland Court of Special Appeals an adverse decision of the Maryland Underground Facilities Damage Prevention Authority against a utility company and its marking contractor. In reversing the agency's decision, the appellate court agreed with Rich & Henderson, P.C., that the agency's determinations resulted from an unlawful procedure, deprived the respondents of due process, and were not supported by competent, material and substantial evidence as required by Maryland law.

September 2015 – Partner Mark Gabler successfully assisted the applicant in obtaining an Aquaculture Permit from the Corps of Engineers covering 18.7 acres in Chincoteague Bay authorizing up to 54,483 oyster cages.

In environmental news, on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay on the Clean Water Rule adopted by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency. The Clean Water Rule was published on August 28, 2015, and attempted to clarify the definition of "waters of the United States" as used in the Clean Water Act. Eighteen states petitioned the Final Rule, contending that the Final Rule dramatically altered the "existing balance of federal-state collaboration in restoring and maintaining the integrity of the nation's waters," was not consistent with rulings of the Supreme Court in Rapanos, and was not a logical outgrowth from the Draft Rule. The Court agreed with the Petitioners and issued a stay on the Clean Water Rule, allowing for more time before the Rule becomes effective to determine whether it is proper under federal law.

August 2015 – Partner Mark Gabler successfully argued for the Court of Special Appeals to uphold a dismissal of appeal of an administrative decision by Queen Anne's County Board of Appeals for lack of standing. The case involved a question of whether the Appellants had standing under the Queen Anne's County Code to appeal the approval of a subdivision plat and/or site plan where they lived more than one-half mile from the proposed development and could show no aggrievement other than alleged traffic increases. The Court found that the appellants were not "aggrieved" as required by the Queen Anne's County Code or as defined in applicable case law.

July 2015 — Partner Mark Gabler and Associate Peter Hershey successfully petitioned the Circuit Court for Anne Arundel County to vacate and remand a decision by the County Board of Appeals denying a variance application to construct a roofed deck in the critical area.

July 2015 — In the Circuit Court for Anne Arundel County, Partner Tony Gorski and Associate Peter Hershey, in conjunction with the Maryland Department of the Environment, successfully defended against a challenge to MDE's issuance of a Refuse Disposal System Permit for construction and operation of a rubble landfill.

July 2015 — In the United States Court of Appeals for the Fourth Circuit, Partner Tim Henderson and Associates, Aminah Famili and Peter Hershey successfully appealed a decision by the District Court of Maryland dismissing a citizen-suit brought under the Resource Conservation and Recovery Act by citizens of Baltimore City. The appeal resulted in a decision reported at: Goldfarb v. Mayor and City Council of Baltimore, 791 F.3d 500 (4th Cir. 2015).

July 2015 – Partner Mark Gabler and the Department of Natural Resources successfully opposed a Petition for Writ of Certiorari to the Maryland Court of Appeals in Tunis, et al. v. Dept. of Natural Resources, Petition Docket No. 155, September Term, 2015. The case involved the issuance of an aquaculture lease that was denied by an Administrative Law Judge and then reversed and affirmed by the Circuit Court and Court of Special Appeals. Petitioners filed for a Writ of Certiorari to challenge this reversal, but the Court of Appeals found that there was no legal basis to review this lease again. Click HERE to see what's happening now.

April 2015 — Partner Tony Gorski and Associate Peter Hershey assisted a client in securing a temporal variance to finish construction of a landfill project in a proceeding held before the Anne Arundel County Office of Administrative Hearings. They were successful in obtaining the solid waste and other permits for this landfill after several years and multiple legal challenges seeking to stop the project. In May, they prevented opponents from obtaining injunctive relief, allowing the construction to proceed on schedule.

April 2015 — Partner Tony Gorski successfully defended a defendant in an environmental criminal jury trial in Wicomico County involving alleged violations of certain statutory and regulatory laws governing waste disposal. The state sought incarceration and in excess of $60,000 in penalties. At the trial, the defendant was acquitted of 12 out of the 14 charges against him, and received probation before judgment and a $500 penalty on each of the remaining two counts.

April 2015 — Rich & Henderson, P.C., and Anne Arundel County successfully secured dismissal of a challenge to the county's recent comprehensive rezoning legislation in the case of Anne Arundel County v. Bell, Case No. 29, September Term, 2104, before the Maryland Court of Appeals. Petitioners argued that they had standing to bring the challenge based on the proximity of their properties to the rezoned parcels in combination with the noise being generated on those parcels — in other words, that they enjoyed property owner standing. In a sweeping decision, the Court of Appeals determined that property owner standing principles were inapplicable to challenges involving comprehensive rezoning legislation, and that, instead, taxpayer standing was the proper standard to be applied.

April 2015 — Partner Mark Gabler argued before the Maryland Court of Appeals on behalf of the Respondent in WSSC v. LaFarge North America, Case No. 69. The primary focus of the case concerned the proper interpretation of Public Utilities Article § 25-106's "deemed denial" provision, which provides that an application for a refund is deemed a final rejection of the claim if the Commission fails to act within 180 days after the claim is filed. After WSSC failed to act on its refund application within the 180-day period, the applicant, represented by Rich & Henderson, P.C., filed a Petition for Judicial Review in the Circuit Court for Montgomery County, challenging the effective denial of its requested refund. The Circuit Court reversed the agency's "deemed denial" of the refund, agreeing with the applicant that the denial was arbitrary and capricious and that the applicant was entitled to a refund. The Court remanded the case to the Commission for a determination of the amount due and owed. WSSC appealed to the Court of Special Appeals, which affirmed the decision of the Circuit Court in an unreported opinion. The primary issue before the Court of Appeals is whether, when the Commission fails to act on a refund application within the 180 period, the proper remedy is for the Circuit Court to vacate the "deemed denial" and remand the case back to the agency to begin anew, or whether the Circuit Court has the authority to reverse the agency decision and order that a refund be issued.

April 2015 — Rich & Henderson, P.C., recently secured the issuance of an aquaculture lease for the applicant in the case of Diffendal et al. v. Maryland Department of Natural Resources, __ Md. App. __ (2015), No. 512, September Term, 2014. Partner Mark Gabler argued the case on behalf of the aquaculture lease applicant. The case arose from the denial of the lease application by an administrative law judge (ALJ). The ALJ concluded after a contested case hearing that the application met all of the criteria in the aquaculture statute but denied the application on the basis that it would interfere with navigation and recreation on the waterway (i.e., violate the common law public trust doctrine). Rich & Henderson, P.C., and DNR successfully obtained a reversal of the ALJ's decision in the Circuit Court for Anne Arundel County by arguing that the ALJ had acted outside the scope of his authority by denying an application that satisfied the requisite statutory criteria. In a reported opinion, the Court of Special Appeals affirmed the Circuit Court's decision. The Court concluded that the ALJ committed erred by: 1) determining that the aquaculture lease application was for a water column lease, not a submerged land lease, and 2) "holding that the public trust doctrine imposed additional, extra-statutory restrictions on the grant of an aquaculture lease." The Court further concluded that the record otherwise lacked evidence of a reasonable cause to deny the application, including a lack of evidence "that would support a finding that the 'public health, safety and welfare' would be at risk" if the lease was granted.

March 2015 — Managing Partner Timothy Henderson argued before the United States Court of Appeals for the Fourth Circuit on behalf of the Appellants in the case of Goldfarb et al. v. Mayor and City Council of Baltimore, Case No. 14-1825. The appeal was noted after the District Court granted the defendants' motion to dismiss the Resource Conservation and Recovery Act (RCRA) claims filed against them related to soil, subsoil, and groundwater contamination at the Horseshoe Baltimore Casino site and nearby parcels and in the Patapsco River. The appeal raised several issues, including the scope and applicability of RCRA's anti-duplication provisions, the factual requirements for pleading claims under RCRA, and the procedural requirements for taking judicial notice.

February 2015 — Partner Mark Gabler argued before the Maryland Court of Special Appeals on behalf of an aquaculture lease applicant in the case Diffendal et al. v. Maryland Department of Natural Resources, No. 512, September Term, 2014. The case arose from the applicant's request to establish an oyster farm off the coast of the South Point peninsula in Worcester County, Maryland, which an administrative law judge denied after a contested case hearing on the grounds that the proposed lease violated the common law public trust doctrine. The main issue in the case on appeal is whether, in deciding a protest of DNR's decision to issue an aquaculture lease, an administrative law judge has the legal authority to deny a lease based on the public trust doctrine even though the lease satisfied all statutory criteria. Mr. Gabler represented the lease applicant before the Office of Administrative Hearings as well as in the Circuit Court for Anne Arundel County.

January 2015 – Managing Partner Tim Henderson will serve as a co-chair and presenter at the National CLE Conference: Environmental Law, Land Use, Energy and Litigation Program in Vail, Colorado from January 7-11, 2015. Mr. Henderson will present on Stormwater, TMDL, and a Little Bit of Wetlands: Changing Rules and Recent Cases.

If you are interested in attending the National CLE Conference, use the promo code FACULTYINSIDER during registration and will receive $100 off the program cost. Attendees receive 16-19 CLE credits.

As a firm, our lawyers have put together a wealth of information for our past, present and future clients in the form of our news and seminars pages. Please feel free to browse the information and reach out to us to discuss your specific case, questions and concerns more in depth.

Articles

ENDANGERED SPECIES AND DEVELOPMENT LAWS
By James J. Doyle, III and Timothy R. Henderson
March 2005, Reproduced with permission from MSBA

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