7/23/2013 KEYGEORGIA ENVIRONMENTAL CASES (LAST 12 MONTHS) The Goal

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1 KEYGEORGIA ENVIRONMENTAL CASES (LAST 12 MONTHS) Douglas A. Henderson Ph.D., Esq. Troutman Sanders LLP 600 Peachtree Street, Suite 5200 Atlanta, Georgia d direct/ cell 1 The Goal 2 1

2 Topics Eleventh Circuit FDC Ga. S.Ct. Ga. Ct. App. Observations Clean Water RCRA Tort Expert Other 3 Clean Water Wt AtC Act Cases 4 2

3 Key CWA runoff case Jones Creek Investors v. Columbia County S. D. Ga. Plaintiffs alleged erosion/silt runoff from construction site Defendants filed MTD alleging no ongoing violations and various CWA citizen suit notice deficiencies Held: sufficient ongoing violations alleged because Defendants failed to terminate permit and continuous or intermittent violations Key issue: held ongoing violation if continued presence of dredged or fill material even if N.O.T. submitted Key issue: corporate officers can be liable even if not the permittee ( plausible inference these individuals are personally liable ) Remaining issue: damagefromrailroad railroad culverts not preempted by ICCTA Jones Creek Investors v. Columbia County, 2013 U.S. Dist. LEXIS (Mar. 28, 2013) 5 Stormwater spoliation? Pulte v. Simerly Ga. App. Property owners sued for trespass, nuisance, negligence, negligence per se, riparian rights, etc. Excess storm water and sediment Allegation of spoliation in deleting e mails Conflicting statements on removal of documents from discovery pile Jury verdict of $2.49 million Ga. App. could not say trial court abused its discretion Rejected allegation of eliciting false testimony from hydrologist No error in reference to CWA in case where no CWA claim Jury verdict upheld Pulte Homes v. Simerly, 2013 Ga. App. LEXIS 597 (July 8, 2013) 6 3

4 Clean Water Act Jurisdiction UCR v. City of Atlanta 11 th Cir. Atlanta entered Consent Decree to address sewer issues Atlanta pledged its water service revenue as part of collateral l for bonds issued dto finance compliance with Consent Decree Sandy Springs incorporated, which triggered Georgia Service Delivery Strategy Act, which could reduce amount and price of water it purchases from Atlanta Atlanta sought injunction to stop Sandy Springs negotiations Held: FDC had no jurisdiction to enjoin Service Delivery Act How Atlanta pays py for its sewer cleanup efforts does not change the factual predicate that gave rise to the CWA litigation Upper Chattachoochee Riverkeeper Fund, Inc. v. City of Atlanta, 701 F. 3d 669 (11 th Cir. 2012) 7 Removal under CWA Stephens County v. Wilbros N.D. Ga. Dispute over organic recovery facility Defendants removed on basis of CWA federal question Well pleaded complaint rule Plaintiffs referenced CWA in complaint Held: reference to CWA not enough to trigger federal question jurisdiction Claim was set out as alternative pleading Remanded to state court Stephens County v. Wilbros, LLC, 2012 U.S. Dist. LEXIS (N.D. Ga. 2012) 8 4

5 Fish Kills and Jurisdiction Collins v. King America Finishing S.D. Ga Allegations of property damage from toxic chemical release Plaintiffs sought remand Discussion of fraudulent joinder in Georgia Defendants alleged naming corporate official (as a Georgia resident) was improper for state jurisidiction Dicta: Georgia has not adopted the heightened pleading requirements imposed on federal plaintiffs in Iqbal and Twombly Held: sufficient to establish state court jurisdiction. Held: corporate officer can be held liable for toxic releases Remand proper because no diversity Collins v. King America Finishing, Inc., 2012 U.S. Dist. LEXIS (S. D. Ga. 2012) 9 CWA Defenses the OCGA/CWA disconnect Kendall v. Thaxton Road, LLC N.D. Ga. Property owner filed CWA citizen suit for stormwater runoff Defendant alleged settlement with County and with Georgia EPD constituted diligent prosecution Held: Not diligent prosecution because CWA requirements don t square with EPD procedures, especially on public participation Kendall v. Thaxton Road, LLC, 2013 U.S. Dist. LEXIS 2599 (N.D. Ga. Jan. 18, 2013) 10 5

6 CWA Anti degradation Upper Chattachoochee v. Forsyth County Ga. App. EPD issued NPDES permit to County UCR challenged, claiming violation of antidegradation, treating agency yg guidance as rule, and finding ALJ lacked authority to reissue permit Held: no permit specific analysis of whether exact effluent limits are necessary EPD can t treat guidance as regulation ALJ exceeded authority in ordering specific permit actions Upper Chattachoochee Riverkeeper Fund, Inc. v. Forsyth County, 318 Ga. App. 499 (Ga. App. 2012) 11 CERCLA/HSRA 12 6

7 Only one piece of the CERCLA NCP puzzle Stratford Holdings v. Fog Cap Retail 11 th Cir. Trial court dismissed CERCLA cost recovery after finding no listing letter from Georgia EPD jeopardized d incurrence of necessary costs of response Reversed and remanded Held: Impermissible factual inference from no listing letter Also factual determination of other items needed to determine NCP compliance Stratford Holdings, LLC v. Fog Cap Retail Investors, LLC, 2013 U.S. App. LEXIS 7540 (11 th Cir. April 16, 2013) 13 RCRA/Solid Waste 14 7

8 Is that carpet selvedge a solid waste? Premier Associates N.D. Ga. In a lease dispute, Landlord sued tenant claiming carpet selvedge was solid waste and I & S Hazard under RCRA Held: recovered material not a solid waste under EPD regulations, if a known use, reuse, or recycling potential and whether can be feasibly be used. Accordingly, conditions not imminent and substantial Premier Associates, Inc. v. EXL Polymers, Inc., 2013 U.S. App. LEXIS 2474 (11 th Cir. Feb. 5, 2013) 15 Landfill waste / solid waste contracts Wilkening v. Veolia 11 th Cir. Landfill developer sued for breach of landfill royalty contract for paying for reusable or recyclable material Held waste in contract was unambiguous and should be given its plain and ordinary meaning Also found separate location was contiguous expansion of original landfill Interpretation of Ga SWMA Wilkening v. Veolia ES Evergreen Landfill, Inc., 491 Fed. Appx. 90 (11 th Cir. 2012) 16 8

9 NEPA/ESA 17 Bombing those whales off the coast? Defenders of Wildlife v. U.S. Navy S. D. Ga. Navy created undersea warfare range near Georgia/Florida border Draft EIS issued and final site selected in this area Navy initiated consultation with NMFS Allegation Navy failed to analyze potential environmental impacts Affirm as long as agency s conclusions are rational. Held: no violations of NEPA or of ESA in very detailed analysis Plan to conduct future studies rational No segmentation by Navy Hard look good enough Mitigation would improve situation Defenders of Wildlife v. United States Department of the Navy, 895 F. Supp. 2d 1285 (S.D. Ga. 2012) 18 9

10 Reservoirs Rules Georgia River Network v. Corps 11 th Cir Challenge to Corps permit for 960 acre Grady County Reservoir Challenge to sufficiency of need determination Corps relied on County s studies Argument decision was arbitrary in light of contradictory evidence Held: Corps decision affirmed in every respect Georgia River Network v. U.S. Army Corps of Engineers, 2013 U.S. App. LEXIS 7867 (11 th Cir. April 19, 2013) NOTE: Turner v. Georgia River Network, Civil Action File No CV , Fulton County Superior Court (May 16, 2013) (held ALJ erred in rejecting stream buffer variance) 19 More Coastal Questions 20 10

11 Six Pack Permitting Center for a Sustainable Coast v. DNR Ga. App. Center challenged DNR s practice of issuing letters of permission instead of requiring permit Sought declaratory judgment Held: cannot seek declaratory judgment on possible or probably future contingency DJ to secure guidance on what action Center may take Remanded for injunctive relief because that was an exception to sovereign immunity Center for a Sustainable Coast v. Georgia Department of Natural Resources, 319 Ga. App. 205 (Ga. App ) 21 Nuisance Cases 22 11

12 Prisoners up in (tobacco) smoke Cassady v. Wilkes 11 th Cir Former inmate alleged officials violated 8 th Amendment (deliberate indifference) Trial limited to future health claims For present claims, no evidence of substantial risk of harm No evidence to level of exposure presented No evidence on scientific or statistical evidence which is likely cause a risk of harm Opinion vacated and remanded for proceedings on existing claims Cassady v. Wilkes, 2013 U.S. App. LEXIS (May 21, 2013) 23 Same mold story? J. N. Legacy Group, Inc. v. City of Dallas Ga. App Plaintiff sued city, claiming heavy rains created moldy conditions Trial court granted SJ to city based on ministerial duty exception Court reversed, in part Cities liable for negligence performance of ministerial duties, but not for governmental or discretionary functions Held discretionary But repeated flooding could be maintenance of a nuisance Jury Question J. N. Legacy Group, Inc. v. City of Dallas, 2013 Ga. App. LEXIS 543 (June 27, 2013) 24 12

13 Other Environmental Topics 25 Mr. Mayor, can you sign my consulting contract? City of Baldwin v. Woodward & Curran Ga. S. Ct. City retained environmental consultant Work ultimately stopped because of funding delay Mayor signed agreement, but Council never approved Held no valid contract without Council approval No quantum meruit Municipal charter sets standards for executing contracts City of Baldwin v. Woodward & Curran, Inc., 2013 Ga. LEXIS 441 (May 20, 2013) 26 13

14 Absolute Pollution for CO (not climate change) Scottsdale Insurance v. Pursley 11 th Cir. Defendant widow appealed grant of MOTP finding no duty to defend under CGL policy Issue was carbon monoxide pollution in boat after engine repaired Absolute pollution exclusion excludes coverage Held: carbon monoxide is a pollutant under CGL policy and all damages related to this pollutant are excluded Scottsdale Insurance Co. v. Pursley, 487 Fed. Appx. 508 (11 th Cir. 2012) 27 Expert Cases 28 14

15 Daubert and soil contamination Southard v. State Farm S.D. Ga. Water damage to residential foundation Homeowner sued for reimbursement Issue over expert report under Rule 26 Late identified expert not permitted to testify Other affidavits on cleanup costs permitted But other homeowner expert permitted to testify Genuine dispute over whether water caused bacteria contamination Southard v. State Farm Fire and Casualty, 2013 U.S. Dist. LEXIS 7283 (Jan. 17, 2013) 29 Hey doc, look at this Brown v. Roche Laboratories N.D. Ga Personal injury allegation resulting from Bactrim Daubert Motion Plaintiffs expert only marginally familiar with subject Not qualified Unreliable opinion Summary judgment granted under Rule 56 Brown v. Roche Laboratories, 2013 U.S. Dist. LEXIS (N.D. Ga. June 6, 2013) 30 15

16 Class Certification (why end on this subject?) 31 Class Certification for Hydrogen Sulfide Odors Georgia Pacific v. Ratner Ga. App Property owner sought class certification for nuisance, trespass and negligence Hydrogen sulfide gas from landfill HVAC repair Held: 4 3 decision affirming class certification order Majority: finds no abuse of discretion in trial court s finding of numerosity, commonality and predominance Dissent: finds no class definition, questions evidence, and sees no commonality or predominance ( mere (mereclaim ) Issues of evidence/dukes issues Certiorari Source: Savannah Morning News Georgia Pacific Consumer Products, LP v. Ratner, 2013 Ga. App. LEXIS 669 (July 16, 2013) 32 16

17 Ogeechee CAFA Fish Kills? Anderson v. King American Finishing N.D. Ga Property owners along Ogeechee sought class certification for devaluation from toxics discharge Defendant removed to federal court under the Class Action Fairness Act: (1) > 2/3 citizens of state; (2) at least one significant defendant citizen of state, and (3) principal injuries in state Issue: residence of class and use of tax records and voter registration and PPB to establish CAFA exclusion Held : No remand to state court based on evidence presented Anderson v. King America Finishing, 2013 U.S. Dist. LEXIS (N.D. Ga. Mar. 25, 2013) 33 Observations 1. Water 2. Governmental players 3. Nuisance 4. Individual liability 5. Daubert/experts 6. Environmental law is still young 34 17

18 Douglas A. Henderson Troutman Sanders LLP direct cell 35 18

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