2010 Articles

Skilled Maryland Attorneys

Rich & Henderson

Below are some of our news and seminars from 2010. For additional information or to schedule an appointment with a lawyer at one of our offices, contact us online or call toll free 1-800-407-0250.

  • December 2010 - 2 - Jeff Moore's Legal Research Cited by EPA and Harvard Law School in Federal Rulemaking for Geologic Sequestration of CO2
  • December 2010 - 1 - Tim Henderson and Tony Gorski to Speak at a Seminar on TMDLs for the Chesapeake Bay Watershed
  • August 2010 - Rich & Henderson Successfully Defends Landowner from $5.7M Penalty Claims Filed by Maryland
  • March 2010 - Rich & Henderson Wins Remand from Court of Appeals for the Federal Circuit in Naval Academy Dairy Farm Case

December 2010 - 2

Jeff Moore's Legal Research Cited by EPA and Harvard Law School in Federal Rulemaking for Geologic Sequestration of CO2

On December 10, 2010, the EPA issued a Final Rule regulating the geologic sequestration (GS) of CO2, otherwise known as the UIC Class VI Rule. However, EPA acknowledged in its Final Rule that the Resource Conservation and Recovery Act (RCRA) Subtitle C regulations may be a legal impediment to GS in the United States. If CO2 bound for GS is determined to fall under the current RCRA definition of hazardous waste, then it cannot be injected into a UIC Class VI well. To address this potential conflict of law, EPA announced that it will seek comments in an additional rulemaking process. This pending rulemaking process will be a crucial step in enabling businesses to utilize GS sequestration as a means of managing significant carbon emissions.

In 2007, Rich & Henderson attorney Jeffrey W. Moore, P.E., P.G., authored a paper published in the Energy Law Journal that addressed GS and the potential legal conflict posed by current RCRA regulations. As one of the first major research efforts into this legal issue, EPA, the Harvard Law School's Environmental Law & Policy Clinic and others specifically cited Mr. Moore's work in their UIC Class VI rulemaking submissions.

Mr. Moore's legal and technical background is ideal to assist clients as they navigate the issues in the coming RCRA rulemaking process. He is not only a licensed attorney extremely well-versed in the legal issues involving GS, but is also a licensed professional engineer and geologist with more than 25 years of experience as an environmental consultant. His unique technical insight, coupled with his substantial legal understanding of the issues, could prove beneficial to members of the energy and GS industries and their representatives. For more information on this crucial subject, please contact Jeff at 410-267-5900 or jmoore@richlaw.com.

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December 2010 - 1

Tim Henderson and Tony Gorski to Speak at a Seminar on TMDLs for the Chesapeake Bay Watershed

Firm attorneys Tim Henderson and Tony Gorski will both be speaking at a " February 2, 2011 seminar in Baltimore " addressing the implementation of Total Maximum Daily Loads (TMDLs) in the Chesapeake Bay watershed. The seminar will present an in-depth look into the far-reaching impacts of the final TMDLs, which EPA plans to issue by December 31, 2010, on landowners, local governments, the regulated community and all citizens. For more information, please contact Tim Henderson.

August 2010

Rich & Henderson Successfully Defends Landowner from $5.7M Penalty Claims Filed by Maryland

The Circuit Court for Baltimore City refused to assess the state's requested $5.7M penalty against Rich & Henderson's client, 2315 St. Paul Street, LLC. The state brought the action seeking the maximum penalty possible against the owner of the property for violations committed by their contractor, Erie Vera, LLC. The court agreed that the state was overreaching in its efforts to calculate penalties under more favorable general statutory provisions while actually alleging violations under another, more specific statutory section. The court found that the state had failed to meet its required time frame for pursuing certain of the alleged violations. In the final analysis, the court agreed with Rich & Henderson's position that the owner of the building did not act willfully and, while strict liability under the law required some penalty assessment, the penalty was because of mere ownership and not because of the owner's actions. The court awarded the state $63,000, just 1 percent of the requested penalty. For more information, please contact Anthony Gorski.

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March 2010

Rich & Henderson Wins Remand from Court of Appeals for the Federal Circuit in Naval Academy Dairy Farm Case

On March 1, 2010, the United States Court of Appeals for the Federal Circuit, the Nation's second highest court, issued an opinion in favor of Rich & Henderson's client Resource Conservation Group, LLC, ("RCG") resolving a jurisdictional issue in the federal courts, which has been held in reserve since 2001. The case revolved around RCG's proposal to mine the former Naval Academy Dairy Farm property for sand and gravel and the significant sums RCG spent conducting testing at the property. After months of allowing RCG to expend resources evaluating the property specifically for mining, the Navy responded to RCG's proposal stating that it did not fall within the scope of the solicitation and therefore the proposal would not be considered. In a later debriefing, the Navy asserted that it had no obligation during the pre-bid preparatory process to advise RCG that its bid would be unauthorized and did not qualify for review or evaluation.

On October 24, 2008, RCG filed a suit in the Court of Federal Claims alleging breach of an implied contract of fair and honest consideration, and violation of the Administrative Procedure Act. RCG sought recovery of bid preparation costs and fees in the amount of $500,000 for the breach of the implied contract. The Navy maintained that the Administrative Dispute Resolution Act ("ADRA") removed RCG's cause of action under 28 U.S.C. § 1491(a) and that it had no duty to act in good faith leading up to the bid process in this case.

The Court of Federal Claims held that it lacked jurisdiction under 28 U.S.C. § 1491(b)(1) to adjudicate bid protests involving leases of land where the government is the lessor, because such an action is not "in connection with a procurement or proposed procurement." Rich & Henderson appealed to the United States Court of Appeals for the Federal Circuit asserting that the review of bid protests under the implied-in-fact contract of fair and honest consideration pursuant to § 1491(a)(1) survived the 1996 enactment of the ADRA and that the breach of the implied-in-fact duty remained a viable theory of recovery. The Court of Appeals agreed, holding that to construe the jurisdiction as the Court of Federal Claims had would deny a pre-existing remedy to a class without providing a remedy under the new statute.

The success at the Court of Appeals is particularly significant in the current economic climate due to the large number of businesses and contractors vying for federal projects being solicited as part of the economic recovery plan. The decision grants standing to businesses and contractors, providing them with a previously unavailable remedy in disputes with the federal government that is sure to result in more federal contractors having their cases heard in the Federal Court of Claims.

For more information about the decision and its impact on federal contracting, please contact Anthony Gorski.

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