U.S. District Court for the Middle District of Pennsylvania
American Farm Bureau Federation et al v. EPA

On December 29, 2010, EPA used its authority under the federal Clean Water Act to issue a Total Maximum Daily Load (TMDL) to limit excess nitrogen, phosphorous, and sediment pollution from the entire Chesapeake Bay watershed. This action followed 15 years of litigation, failed voluntary agreements, congressional actions, executive branch actions, and cooperative technical work, including a 2010 settlement agreement of CBF's lawsuit against EPA that set specific deadlines and several other conditions for the TMDL.

Less than two weeks after the Bay TMDL was finalized, the American Farm Bureau Federation and the Pennsylvania Farm Bureau together filed a complaint in federal court against EPA in an effort to stop the TMDL and the implementation plans from moving forward. The lawsuit challenges several key aspects used in the development of the Bay TMDL - EPA's authority, the science and information used, and the public participation process. The two initiating groups were eventually joined by several other major agriculture industry trade associations as well as the National Association of Home Builders.

On May 25, 2011 CBF along with Citizens for Pennsylvania's Future, Defenders of Wildlife, Jefferson County Public Service District (WV), Midshore Riverkeeper Conservancy, and the National Wildlife Federation filed a joint motion to intervene in this case in support of EPA and the Bay TMDL. Several municipal wastewater groups also asked to intervene in support of EPA and the Bay TMDL.

On October 13, 2011, all parties were granted intervention. CBF submitted its written arguments in support of the Bay TMDL to the federal court and will head to Harrisburg on October 4, 2012 for oral argument.

This matter is being handled by CBF Vice President for Litigation Jon Mueller and counsel for the Defenders of Wildlife, Southern Environmental Law Center.

MORE INFORMATION ABOUT THE CHESAPEAKE BAY CLEAN WATER BLUEPRINT

The Sparrows Point steel mill is located on the banks of the Patapsco River in Baltimore, Maryland. The original owner, Bethlehem Steel Corporation (BSC), operated on the roughly 2,300 acre site for more than 80 years, making iron and steel and building ships. Hazardous wastes were deposited on the site and in the adjacent waterways.

In the late 1990s, the U.S. Environmental Protection Agency (EPA) and the Maryland Department of the Environment (MDE) sued BSC for numerous hazardous waste violations. The case was settled in 1997 when the parties signed a consent decree that required BSC and any subsequent owner to correct the violations, perform the necessary studies to fully evaluate the site, and cleanup the pollution both on- and off-site. BSC declared bankruptcy in 2000 and ownership of the property has changed hands several times since. The Russian steel company Severstal took ownership from ArcelorMital in 2008 but sold the site in 2011 – RG Steel (a subsidiary of The Renco Group) took control of the mill at this time. RG Steel went on to file for bankruptcy a year later.

Today, more than 10 years and several owners later, very little clean-up of Sparrows Point has occurred. Environmental monitoring suggests that hazardous waste is leaving the site and contaminating the adjacent Patapsco River and Bear Creek.

U.S. District Court for the District of Maryland
Chesapeake Bay Foundation et al v. RG Steel Sparrows Point

During the summer of 2009, CBF, the Baltimore Harbor Waterkeeper, and several local residents, concerned with the threat to water quality and human health presented by the site sent a notice of intent to sue to past and present owners of the steel facility and the agencies charged with oversight of the property.

On July 9, 2010, after efforts to resolve the concerns without litigation failed, a citizen suit was filed in federal court against past and present owners ArcelorMital and Severstal. The lawsuit asked the court to order the steel companies to fully investigate off-site contamination and, if necessary, remove and remediate the off-site contamination, to take emergency measures to more fully prevent pollution leaving the facility, and to obtain appropriate hazardous waste and erosion and sediment control permits.

In September of 2010, the steel companies asked the Court to dismiss the CBF case. On July 5, 2011, the Court dismissed some, but not all, of CBF's claims. This case was allowed to move forward on several grounds, including Severstal's failure to have the proper permits for the treatment, storage and disposal of hazardous waste and failure to have an erosion and sediment control permit for one of two landfills on site.

The parties began discovery in this case, including formal interrogatories, depositions, and the production of expert reports. However, following the recent 2012 bankruptcy petition, this matter was stayed by the Court.

U.S. District Court for the District of Maryland
RG Steel Sparrows Point v. EPA and MDE

Despite the fact that, under the terms of the 1997 consent decree, clean up of the steel mill site is the responsibility of any owner, Severstal believed that because the property had been sold as part of BSC's bankruptcy, subsequent owners were not legally obligated to investigate and remediate contamination that had migrated beyond the steel mill property. In July of 2010, Severstal filed a formal Petition for Dispute Resolution with the Court thus reactivating the original federal suit. CBF and its co-plaintiffs in the permitting case filed a motion to intervene due to their substantial interest in the case.

In September of 2010, Severstal and ArcelorMittal filed oppositions in an attempt to deny CBF and its allies the right to intervene. The steel companies also argued that the bankruptcy sale of the property in 2003 effectively released them from environmental liability for releases of hazardous waste that occurred prior to BSC's bankruptcy.

The Court issued an opinion on July 5, 2011 allowing CBF and the individual citizens to intervene in the dispute resolution case because their interests are affected by further implementation of the 1997 consent decree. The Court also decided that current owners are responsible for existing on-site releases of contamination from the steel facility and that they are not relieved of their obligation to conduct a Site Wide Investigation (SWI) that includes offshore sampling of current and past releases.

In the same opinion, the Court also found that the bankruptcy sale of the steel mill by BSC cut off the obligation of any subsequent owner to remediate pollution released from the site prior to the date of sale, 2003. The Court ordered the parties to try and reach an agreement on the scope of the SWI in light of this ruling. CBF and its allies participated in negotiations with RG Steel, EPA and MDE and objected to several aspects of the proposed “framework” for the offshore investigation portion of the SWI.

On March 15, 2012, over the objections of CBF and its allies, the Court formally approved the offsite investigation agreed upon by RG Steel, EPA and MDE. As a result, on May 2, 2012, CBF appealed this decision to the U.S. Court of Appeals for the Fourth Circuit. Despite the automatic stay of both cases in the District Court, this appeal has been allowed to move forward. Written arguments will be submitted to the federal appeals courts throughout the rest of 2012.

U.S. Bankruptcy Court for the District of Delaware
In Re: RG Steel Sparrows Point

In May of 2012, RG Steel filed its notice of voluntary bankruptcy in federal court in Delaware. A few months later, the Sparrows Point steel mill went to auction. Environmental Liabilities Transfer (ELT) and CDC (representing a third party, Hilco) made the highest bid of $72 million. A draft bankruptcy sale order followed. CBF, EPA and MDE argued to the bankruptcy court that the sale order was deficient because, among other things, it failed to contain a provision obligating the new purchasers to fulfill the outstanding obligations under the consent decree and to perform the off-site investigation. CBF, EPA and MDE successfully negotiated with RG Steel for a provision in the sale order that obligated the buyers to perform all outstanding work required under the consent decree. In addition, $500,000 was set aside from the sale proceeds to fund the off-site investigation.

All Sparrows Point matters are being handled by CBF Vice President for Litigation Jon Mueller and Litigation Attorney Christine Tramontana, along with counsel for Blue Water Baltimore, Inc.

MORE INFORMATION ABOUT SPARROWS POINT

State Level

On April 1, 2009 Pennsylvania's Department of Environmental Protection (DEP) eliminated local conservation districts from the review process of Erosion and Sediment Control plans and permits and Stream and Wetlands Encroachment permits in relation to the natural gas industry. Conservation districts are traditionally experts in erosion control and stream protection and their expertise in this area is invaluable to the protection of the environment.

Late that summer and in response to permits issued to several natural gas companies under the new expedited permitting process, CBF filed three appeals with the Pennsylvania Environmental Hearing Board (EHB) challenging erosion and sediment control permits issued to Ultra Resources Inc. and Fortuna Energy Inc. As a result of the legal challenges, DEP revoked the three erosion and sedimentation control general permits. One of the companies, however, filed a separate appeal of the decision to revoke their permit.

In July of 2011, CBF and DEP reached an agreement that resolved all of the questions presented in the appeals. The formal settlement agreement, approved by the EHB, requires DEP to amend their permit review process to prohibit an expedited review process to any applicant seeking a permit for projects located in or with the potential to discharge to waters that have been designated as high quality or exceptional value and for projects in which the well pad will be constructed in or on a floodplain.

Federal Level

On April 4, 2011, CBF along with several other groups filed a formal citizen petition with the federal government requesting the completion of a programmatic environmental impact statement (PEIS) regarding the cumulative impacts of drilling in the Marcellus Shale formation within the Chesapeake Bay watershed and the promulgation of necessary regulations based upon the outcome of the study. The petition was filed with the Council on Environmental Quality (CEQ) requesting that they provide oversight and guidance to several federal agencies in conducting the comprehensive study. No formal response from CEQ has been provided.

In February of 2012, CBF also filed an amicus curiae brief with the federal court in Brooklyn in support of the State of New York's position that federal coordination is required under the National Environmental Policy Act of 1969 regarding the Delaware River Basin Commission's authorization of unconventional natural gas development including hydraulic fracturing in counties that are located within the Delaware River Basin and the Chesapeake Bay watershed.

These matters are being jointly handled by CBF's Litigation Department and Pennsylvania Office, along with assistance from law students at Drexel University School of Law.

MORE INFORMATION ABOUT MARCELLUS SHALE

Maryland Court of Special Appeals
Margaret McHale et al v. DCW Dutchship Island LLC et al

In 2001, local homebuilder Daryl Wagner, operating as DCW Dutchship Island, LLC, tore down a pre-existing cottage and built a large home, swimming pool, and lighthouse on Little Island in the Magothy River without having any of the required building permits, variances, or buffer map amendments needed to carry out his project. Maryland law requires that, in addition to general building permits, citizens apply for and receive variances to construct in any area within 1,000 feet of tidally influenced waters, otherwise known as the Critical Area. The entire island is within the Critical Area. The majority of the island, including the new house, is also in the “buffer,” an area of land in which construction is prohibited without a variance.

After the new construction was discovered by county and state inspectors, Mr. Wagner applied for the necessary variances and modifications to the buffer map on a retroactive basis. Anne Arundel County Planning and Zoning officials approved the variances and buffer map modifications. CBF appealed those decisions to the Anne Arundel County Board of Appeals.

Hearings were held before the Board over a nine-month period in 2006. The requests for variances and buffer map modifications were addressed separately. Early in the case, the Board erroneously ruled that CBF lacked standing to challenge the variance requests and dismissed us. However, the Board did allow CBF to participate in the buffer map modification part of the hearings.

The majority of the Board followed the lead of the Planning and Zoning officials and voted to grant the variances and buffer map modifications. By January 2007 the Board had issued its written decision which merely adopted the statements of the County's witnesses— including the theory that the island had been “missed” when the buffer maps were created in 1994 and thus, map modification to reflect pre-existing “non functioning” areas of the buffer was appropriate.

CBF appealed the Board's decisions to the Circuit Court for Anne Arundel County. The variance and buffer map modification issues were consolidated into one appeal. Here again, CBF's legal standing was attacked. In the end, the Circuit Court found that CBF had judicial standing to maintain the appeal but nonetheless upheld the full decision of the Board to grant the variances and allow the house to stand.

An appeal was noted to the Court of Special Appeals and a hearing was held on October 11, 2011. In addition to the issues already presented for review, the appeals court decided to dig deeper into a possible conflict between state law and county law and listened to argument regarding this question. A written opinion shall hopefully be issued in the coming months.

This matter is being handled by CBF Vice President for Litigation Jon Mueller.

Circuit Court for Queen Anne's County
Carol Woodson Bilek et al. v. County Commissioners of Queen Anne's County et al.

In 2010, the Queen Anne's County Board of County Commissioners approved a new comprehensive land use plan including new zoning maps. During this process and into 2011, a list of applications made by landowners to the County requesting re-zoning, or map amendments, were also considered – this was done following standard procedure involving the Planning Commission and public hearings. After a full review, the Planning Commission concluded that four of the proposed map amendments were inconsistent with the new 2010 Comprehensive Plan. Despite the Planning Commission's findings, as well as public comments which further emphasized the inconsistencies with newly adopted Comprehensive Plan, the County Commissioners adopted the map amendments on November 8, 2011. (County Ordinance No. 11-03, An Omnibus Act Concerning various Comprehensive Rezonings in Queen Anne's County.) In total, this amounted to a rezoning of approximately 600 acres from agricultural to commercial, light industrial, residential, or yet to be determined zoning classifications.

CBF, along with local property owners and several local citizen organizations, saw that this decision violated Article 66B of the Maryland Code and the Smart and Sustainable Growth Act of 2009 that requires consistency between county land use decisions and the county's comprehensive plan. As a result, CBF and the other parties filed a lawsuit in the Queen Anne's County Circuit Court asking the court to declare the rezoning process illegal and invalidate County Ordinance No. 11-03. On August 7, 2012, the Circuit Court found that the largest of the four parcels – a 216-acre property that lies at the headwaters of the Wye River – was not rezoned legally and declared Ordinance No. 11-3 invalid with respect to this one property. Regarding the remaining three properties in question, the Court found that the County Commission did not articulate enough facts to meet “consistency requirements” and essentially moved the case to the next step - a trial at which the Commission must present evidence concerning the factors they considered in rezoning the other properties for further examination.

Circuit Court for Frederick County
Friends of Frederick County et al v. Board of County Commissioners

In 2010, the Frederick Board of County Commissioners adopted a new Comprehensive
Plan and Zoning map after two years of studies, reviews and public input regarding thousands of properties within the county. Shortly thereafter the adoption of the 2010 Comprehensive Plan, a new Board took office. They immediately began to review the recently adopted plan and announced their intent to amend it. CBF and several groups appealed the decision of the new Board to review and amend the 2010 plan because it did not follow proper procedure. More importantly, and as with the Queen Anne's County case, the proposed changes violated Maryland law and threatened to undermine newly enacted land use policy that is protective of the Bay.

Unfortunately, because a final vote had not yet occurred, the Circuit Court found that the matter was not ripe for a decision and dismissed the case. CBF continues to follow and monitor the map amendment process in Frederick County –written comments were submitted to the County on August 31, 2012 in opposition to the proposed changes to the 2010 Comprehensive Plan.

Maryland Court of Special Appeals
Chesapeake Bay Foundation et al v. David Clickner

In 2005, David Clickner sought variances to construct a large home on Dobbins Island in the Magothy River and was denied by Anne Arundel County. Late in 2006, he sought variances for a pier, driveway, stormwater controls, and a septic field. CBF objected to the second request on several grounds, including the fact that the pier and stormwater discharge would pass through thriving, but fragile, beds of underwater grasses. Further, the stormwater controls and septic field would be constructed in the Critical Area buffer. The County Administrative Hearing Officer granted the variances for the pier and other additions with some limitations.

In 2007, CBF appealed the decision of the Hearing Officer to the County Board of Appeals. Prior to a hearing on the merits of the case, both the County and the property owners asked for CBF's appeal to be dismissed for lack of standing. After two nights of hearings were held to address the issue of standing, and despite the fact that CBF presented extensive evidence regarding its special interests in the Magothy River and the island, the Board dismissed our appeal and upheld the decision to grant the variances.

CBF then appealed the Board's decision to the Circuit Court for Anne Arundel County where the Board's decision was simply affirmed. CBF's battle continued with an appeal to the Court of Special Appeals and on April 30, 2010 the lower court's decision was reversed. The appeals court found that the Board had used "faulty logic" in determining whether or not CBF had administrative standing and sent the matter back to the County Board of Appeals for further proceedings.

After several nights of hearings during the summer of 2011 the Board of Appeals decided to grant all of the variances requested. An appeal is again underway before the Circuit Court.

This matter is being handled by CBF Vice President for Litigation Jon Mueller.

Court of Appeals of Virginia
Chesapeake Bay Foundation v. Commonwealth of Virginia

In December 2003, CBF and others challenged the issuance of a state issued Water Protection Permit to Tri-City Properties through an appeal to the Circuit Court of the City of Richmond. The permit allowed for the destruction of 181 acres of protected, nontidal wetlands in Chesapeake, Virginia near the Stumpy Lake Nature Preserve.

Unfortunately, before the case was heard on its merits it was dismissed by the Circuit Court for lack of standing. The court held that neither CBF nor its members had suffered an injury and that CBF could not represent its members. CBF appealed this decision to the Virginia Court of Appeals and received a mostly favorable decision.

The appeals court agreed that CBF had the right to sue on behalf of its members, a principle otherwise known as representational standing. However, the appeals court did not believe CBF had stated sufficient facts to support the claim that it had been directly harmed by the permit. Therefore, CBF could not maintain an action in its own right. The appellate court sent the case back to the Circuit Court to consider the claims of our members and other involved citizen groups.

Upon remand in 2009, the Commonwealth again moved to dismiss CBF for lack of standing. Despite the fact that CBF participated in the earlier public comment process, the Commonwealth argued that we lacked representational standing because our members had not participated individually. The Circuit Court simply adopted this argument and granted the motion to dismiss CBF.

CBF then appealed the Circuit Court decision to the Court of Appeals for the second time. On July 20, 2010, the Court issued an opinion reversing the Circuit Court's decision. Oral argument on the merits of the case was heard by the Circuit Court on September 19, 2011.

This matter is being handled by outside counsel on a pro bono basis with assistance from CBF's Virginia office and the Litigation Department.