News And Seminars From Rich & Henderson

County Ordered to Pay $45.4 Million for Regulatory Taking. After decades of fighting with Harford County, Maryland over the plan to reclaim a closed mining site with a rubble landfill operation, the property owner sued, claiming the county's actions were an unconstitutional taking and required compensation. In April, after an eight day trial, the jury agreed and rendered its verdict awarding $45.4 million dollars to the landowner.

Sometime in the 1980s, Harford County incorporated the proposed rubble landfill in its solid waste management plan. The landowner then obtained its refuse disposal permit for the rubble landfill from the Maryland Department of the Environment. Thereafter, the county made changes to its zoning code inhibiting the ability to build and operate the landfill. Despite efforts by the landowner to seek further approvals from Harford County, it was unable to construct the facility. After being unsuccessful in obtaining approvals, the landowner sued Harford County seeking just compensation, asserting that the county's actions prohibited it from making "beneficial use" of its land, in violation of the Maryland constitution.

Maryland Reclamation Associates, Inc. v. Harford County, Maryland, Harford County Circuit Court, Case No.: 12-C-13-000509 (April 17, 2018)

May 14, 2018 - Court of Special Appeals Upholds Maryland's 2014 CAFO General Discharge Permit - Food & Water Watch and the Assateague Coastal Trust challenged the validity of the Maryland Department of the Environment's ("MDE") 2014 General Discharge Permit (the "2014 Permit") for Concentrated Animal Feeding Operations ("CAFOs"). Among its core provisions, the federal Clean Water Act ("CWA") prohibits the discharge of any pollutant to waters of the United States from any point source, except as authorized by a National Pollutant Discharge Elimination System ("NPDES") permit. Animal Feeding Operations ("AFOs") and CAFOs are expressly listed within the definition of "point source" in the CWA. Maryland operates its approved NPDES program under authority delegated by EPA.

Plaintiffs maintained that the 2014 Permit failed to require chemical, biological, or physical monitoring at any outfall or in-stream locations and did not require effluent monitoring mandated by EPA's CWA regulations. Plaintiffs asserted that MDE must require all CAFOs to conduct regular sampling of discharged water and that because the 2014 Permit only required CAFOs to analyze nutrient levels of manure and soil every three years, it was not a valid NPDES permit. Plaintiffs relied upon decisions from federal Courts of Appeals in both the 2nd and 9th Circuits, which found that EPA's regulations mandate monitoring of effluent limitations be included in every Permit.

MDE maintained that it was allowed to use its discretion and expertise to determine what conditions to place in its NPDES permits and that EPA's CWA regulations only require discharge monitoring where appropriate. MDE argued that best management practices ("BMP") required by the 2014 Permit ensured compliance and analyzing nutrients in soil every three years was sufficient and appropriate. MDE also argued that the 2014 Permit was substantially similar to the 2009 CAFO General Discharge Permit, which was previously upheld by the Court.

The Court of Special Appeals ruled that Plaintiffs' reliance on the 2nd and 9th Circuit holdings was flawed because the 2014 Permit has measures in place to ensure compliance. It determined that the 2014 Permit is reasonable and necessary to carry out the intent of the CWA and that monitoring of numeric limitations in discharges is infeasible because the 2014 Permit allows zero discharge. Further, the federal regulations in 40 C.F.R. §122.44 do not mandate analysis of water discharges, rather they grant discretion to the agencies to require such monitoring only when appropriate. Zero discharge permits allow no effluent; thus, discharge monitoring is unnecessary. The Court of Special Appeals agreed with the agency and the trial court, finding that there is substantial evidence in the record to support MDE's decision to issue the 2014 Permit, that it complied with CWA requirements and regulations, and upheld MDE's decision.

Food & Water Watch, et al. v. Maryland Department of the Environment, Maryland Court of Special Appeals, CSA-reg-2602-2016, (May 14, 2018, unreported).

April 26, 2018 - Illegal Discharge of Sewage - In a case of first impression, Maryland's Court of Special Appeals overturned criminal convictions based on the "continuing violation" theory in the case of a man convicted of illegal sewage disposal. Tony Gorski and Peter Hershey handled the successful post-conviction appeal after the man was denied post-conviction relief by the trial court. The CSA's April 26, 2018 decision agreed that the jury instructions provided by the Environmental Crimes Unit prosecutor at the underlying trial conflicted with the plain language of the environmental regulations on which the charges were based. The opinion establishes that in water pollution cases in Maryland, the State must prove an actual discharge on each date charged in order to obtain a conviction for an illegal discharge. The State relied upon the continuing presence of the alleged sewage on the ground surface as evidence of a continuing violation. The Court reversed the convictions based on the continuing violation theory and remanded the case for resentencing. Shortall v. State, __Md. App. __(Case No. 0170, September Term, 2017).

April 12, 2018 - In a split decision, the United States Court of Appeals for the Fourth Circuit ruled on a controversial issue of first impression regarding the Clean Water Act ("CWA") -- whether a discharge of pollutants to groundwater can violate the prohibition against point sources discharging pollutants without a permit. The Court held that an undisputed discharge of gasoline from a pipeline into groundwater could, if the groundwater is shown to have a direct hydrological connection to a water of the United States, be a point source discharge of the gasoline in violation of the prohibition on discharges to waters of the United States without an NPDES permit. There was a high level of interest among environmental groups, industry associations and states (including, AL, AK, IN, KS, LA, MS, OK, SC, UT, WI and WV) in the appeal, which resulted in the filing of a number of amicus briefs.

Previously, in the U.S. District Court for South Carolina, Defendant Kinder Morgan Energy filed a Motion to Dismiss the Clean Water Act citizen suit filed by the Savannah Riverkeeper, claiming that as a matter of law the discharge of gasoline through a leak from its pipeline (repaired prior to the filing of the notice of intent to sue) to groundwater cannot be a point source subject to the CWA. The District Court granted the motion, ruling that it lacked subject matter jurisdiction, in part, because the CWA does not encompass the movement of pollutants through groundwater that is hydrologically connected to navigable waters.

The Fourth Circuit disagreed, finding that if discharges through groundwater are sufficiently connected to surface waters of the U.S., they may support a claim under the CWA. It cautioned, however, that a discharge through groundwater does not always support CWA liability: "the connection between a point source and navigable waters must be clear." Upstate Forever v. Kinder Morgan Energy Partners, L.P., 2018 U.S. App. LEXIS 9144, at *23. This analysis is essentially one of fact which must be both plead and proven: "A plaintiff must allege a direct hydrological connection between groundwater and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water." Id. at *25-26. Applying these criteria, the Court found that the Riverkeeper had pled facts sufficient to withstand the Motion to Dismiss and remanded the case to the District Court for further proceedings.

Before addressing the issue of the groundwater nexus, the Court addressed the question of what constitutes an ongoing discharge from a point source, which is a jurisdictional predicate for a CWA citizen suit (established by the U.S. Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987). This, it said, required a determination of "whether citizens may bring suit alleging a violation of the CWA when the source of the pollution, the pipeline, is no longer releasing the pollutant, but the pollutant allegedly is passing a short distance through the earth via ground water and is being discharged into surface waterways." Upstate Forever, at *4. It concluded that the District Court was wrong to have found that it lacked subject matter jurisdiction under the CWA because the pipeline has been repaired, because "[d]ischarges of pollutants that derive from a "point source" and continue to be "added" to navigable waters", are an ongoing violation. Id. at *4-5.

The Court relied heavily on a decision reached for clients of Rich & Henderson in Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500 (4th Cir. 2015). It explained, as in Goldfarb, that "although a defendant's conduct that is causing a violation may have ceased in the past . . . what is relevant is that the violation is continuous or ongoing." Upstate Forever, at *14. Although, the Goldfarb decision involved alleged ongoing violations of Recourse Conservation and Recovery Act, the Court found the citizen suit provisions at issue to be substantially identical regarding what constitutes and ongoing violation.

Judge Floyd, in a well written and reasoned dissenting opinion, disagrees with the ongoing violation analysis put forth by the majority. Judge Floyd found that the Riverkeeper failed to show that the CWA violation is ongoing, because there is no ongoing discharge of pollutants from a point source. "The only point source at issue-the pipeline-is not currently leaking or releasing any pollutants." Id. at *43.

It would not be a surprise if a petition for certiorari is filed with the Supreme Court by Kinder Morgan, given the high level of interest in the decision and the potential expansion of citizen suits likely to be spawned by the decision.

April 2018 - Partner Tony Gorski successfully challenged the Maryland Department of the Environment's decision to deny an after-the-fact Tidal Wetlands License application. The landowners installed a replacement bulkhead landward of an existing bulkhead on their waterfront property along Fishing Creek in Woolford, MD. The original bulkhead was installed by a prior owner in a boat basin excavated landward on the property and had been damaged by flooding during Tropical Storm Isabel in 2003. MDE alleged that the installation was illegal and ordered the landowners to remove the replacement bulkhead, but agreed to first consider an after-the-fact application for a Tidal Wetlands License. In reviewing the application, MDE maintained that the original bulkhead failed the "Functionality Test" used to determine if it will allow an existing bulkhead to be replaced with another bulkhead, or require the landowner to use alternative "soft" erosion control features. MDE decided that the original bulkhead could not be replaced in kind and denied the Tidal Wetlands License application. In overturning MDE's denial, the Court agreed with the landowners that the record provided no basis for MDE's Functionality Test decision. The Court questioned the agency's ability to apply the Functionality Test in any application because there are no statutory or regulatory provisions describing or quantifying the test or addressing how the agency is to make a decision concerning whether, and to what degree, a bulkhead is "functioning." The Court also agreed with the landowners that the excavated boat basin where the replacement bulkhead was installed is a private wetland and, as such, the law does not authorize the agency to apply the Functionality Test. The Court remanded the matter to MDE to re-evaluate, based on its decision, whether a Tidal Wetland License was even required. (In The Matter Of Roy Harrison, et al.; Circuit Court for Dorchester County, Case No.: 09-C-14-021224).

January 3-7, 2018 -

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Tim Henderson was the Co-Chair at the 35th National Environmental Law Conference in Vail, Colorado for the Environmental, Land Use, Energy, and Litigation seminar. Mr. Henderson facilitated a conversation where program participants gained insights from experts across the country on the subject matter. Participants also had 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. The 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 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.

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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