CLEAN WATER ACT

Litigation Challenging State Regulatory Agencies 

Thompson Coburn represented The Home Builders Association of St. Louis and Eastern Missouri in a lawsuit against the Missouri Department of Natural Resources (DNR) challenging the process used by DNR to determine whether or not streams in Missouri should be included on the state list of “impaired waters.” Once the DNR includes a stream on the list of impaired waters, DNR can place stringent limitations on the types of discharges, such as sediment from a residential subdivision construction site, that can go into the stream. Our client asserted that the method used to determine whether a stream should be considered “impaired” was without a legitimate scientific basis. The lawsuit resulted in DNR’s agreement to conduct another study of one particular stream at issue, and to base all future decisions regarding impaired waters listings on evidence that is scientifically defensible. The settlement has statewide impact because it affects the process used by DNR in all such listing decisions.

Spill Cleanup and Related Penalty Negotiations 

We represent an industrial mining/quarry business in connection with a major rock fines release into one of its state’s most pristine waterways. The spill resulted in the complete shut down of a state park approximately ten miles down stream. A fish kill and damage to natural resources were alleged to have occurred. After counseling the client through the emergency response and cleanup stages, we negotiated a settlement that involved a penalty of less than $20,000 coupled with an innovative Supplemental Environmental Project (SEP). The state indicated it would have sought in excess of $700,000 had the matter not been settled. We also successfully assisted our client in obtaining favorable terms in connection with a modification to its NPDES permit, which the state required as a consequence of the incident.

Concentrated Animal Feeding Operation Permit Appeal 

We successfully represented a large concentrated animal feeding operation (CAFO) in administrative appeals brought by area residents to several water permits issued to the CAFO’s various farms. Citing the state law provision that only the permit applicant had the right to appeal water permits, the CAFO sought and obtained an extraordinary writ which held that because the residents had no right to appeal the CAFO’s water permits, they had no right to seek an administrative review of the permits. Subsequently, the case was upheld on appeal.

Defense of Suit Against a Sewer District 

We defended a federal court action brought by the United States under the Clean Water Act as well as claims brought by citizen group intervenors against the sewer district. The case settled with an agreement to construct secondary treatment facilities.

Wetlands Permit and Offsets for Loss of Wetlands 

Thompson Coburn assisted a riverboat casino complex in obtaining from the Army Corps of Engineers a Clean Water Act § 404 permit that was essential to its development and to its successful effort to become one of the first licensed riverboat casinos in the state of Missouri. The permit provided for the acquisition of mitigation property for the creation of new wetlands to offset the potential loss of wetlands from the development.

Oil Discharges from Vessels 

Our client was accused of discharging oil from the bilge of its vessel without a permit and in violation of the federal Clean Water Act. It was also charged with failure to report the release. We succeeded in negotiating a settlement with the Coast Guard which involved no admission of liability and the payment of a fine of less than $6,000.

Release and Recovery of Radioactive Materials 

We assisted a client in its reporting, investigation and cleanup of radiologically contaminated steel which had been released into a major waterway. At our client’s request, Thompson Coburn personnel were on site in a remote location at the dock where the incident occurred, within hours of the incident. We interviewed witnesses, assisted in the development of reporting strategies and assisted in the recovery of the material at issue from the bottom of the river. Our client was not required to pay any penalties or fines in connection with the incident.