OSHA Is Raising Its Maximum Penalty Amounts, Again!

Posted in Federal, GT Alert, OSHA

On Jan. 10, 2020, the U.S. Occupational Safety and Health Administration (OSHA) announced another increase in the maximum civil monetary penalties for violations of federal Occupational Safety and Health standards and regulations. The new monetary penalties will be nearly 2% higher than the current maximum penalty amounts.

Effective Jan. 15, 2020, the maximum penalty for “Willful” or “Repeated” violations is $134,937, a more than $2,000 increase from the 2019 maximum for the same kinds of violations. The maximum penalty for “Failure to Abate” violations is $13,494 per day after the abatement date. Finally, the maximum penalty allowed for “Serious,” “Other-Than-Serious,” and “Posting Requirements” violations is $13,494, an increase of over $200 from the 2019 maximum amounts. Importantly, states that operate their own Occupational Safety and Health plans are required to adopt maximum penalties levels that are at least as effective as federal OSHA’s.

Click here to read the full GT Alert.

Rule of Capture is Back for Pennsylvania Oil and Gas Wells . . . Sort Of

Posted in Court Cases, Oil & Gas, Pennsylvania

On Wednesday, the Pennsylvania Supreme Court overturned a lower court decision that appeared to make the “rule of capture” inapplicable to oil and gas wells subjected to hydraulic fracturing, or “fracking.” Briggs v. Sw. Energy Production Co., No. 63 MAP 2018 (Pa. Jan. 22, 2020) (see majority opinion; see concurring and dissenting opinion). However, the court has left open whether a well owner whose hydraulic fracturing fluids or proppants migrate under a property line, and perhaps even a well owner whose fracture traces extend across that line, has committed a trespass. Those issues are remanded, and their resolution remains uncertain.

Oil and gas (or, for that matter, any fluids) migrate into a well bore from the surrounding rock. If the well drains a conventional reservoir, the hydrocarbons may have originated at the other end of the reservoir under a different property. A well on one property can drain hydrocarbons originally located under another. Recall the “I drink your milkshake” scene from There Will Be Blood (Paramount 2007). Continue Reading

New York Governor Andrew Cuomo Proposes Radical Reshaping of Siting Process for Renewable Projects

Posted in Energy, Natural Resources, New York, Renewables, State & Local

In his annual budget address on Jan. 21, 2020, New York Governor Andrew M. Cuomo proposed a complete overhaul to New York’s siting of renewable energy projects. Noting that siting a project under the current Article 10 process takes 5-10 years to begin construction, the governor found that the current process simply does not work. In a reference to the renewable energy generation goals set forth in the Climate Leadership and Community Protection Act (CLCPA), the governor called setting goals without the means to achieve them “baloney” and went on to propose “flip[ping] the whole model” of renewable siting by having the state acquire potential sites for renewable energy generation, permitting the projects, and delivering shovel-ready sites to developers.

Article 10, signed by Governor Cuomo in 2011, was intended to streamline the siting of large-scale renewable and other major energy generating facilities of 25 megawatts or more. The original generation siting law had a higher threshold that omitted most renewable projects from its scope. Article 10 was meant to be a one-stop shop for environmental, health, and public safety reviews and permitting, allowing for an override of local laws that would unnecessarily impede siting and providing a strong mechanism to counterbalance knee-jerk NIMBYism, thereby allowing siting of needed electrical generation to help ensure safe and reliable service to ratepayers. It established a Board on Electric Generation Siting and the Environment, commonly referred to as the “siting board,” to accomplish that goal, and provided for the appointment of ad hoc members of the municipality where a project is proposed to be sited, giving a voice to residents.

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Environmental Cases in the Pennsylvania Appellate Courts During 2019

Posted in Articles, Court Cases, Pennsylvania

By my count, the three Pennsylvania appellate courts decided 27 environmental cases in 2019. Categorization is somewhat subjective, so I apologize for any omissions. For brevity, citations are truncated, and omitted years are 2019. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use regulation issues; municipal fees; judicial review of regulations; standing; permits and appeals from them; enforcement appeals; other judicial issues, and; limitation period.

Read my contribution to this month’s Legal Intelligencer supplement, Pa. Law Weekly titled “Environmental Cases in the Pennsylvania Appellate Courts During 2019,” 43 Pa. L. Weekly 3 (Jan. 21, 2020) by clicking here.

Trump Administration Proposes Significant Streamlining of National Environmental Policy Act

Posted in Federal Regulation, GT Alert, NEPA

On Jan. 9, 2020, the Trump administration’s Council on Environmental Quality (CEQ) proposed rules that would update comprehensively the regulations promulgated under the National Environmental Policy Act (NEPA) for the first time in 40 years. After 40 years there is little question that the regulations could use updating and that environmental reviews can be streamlined. However, these proposed revisions go beyond seeking efficiencies and better coordination. Rather, they seek to narrow federal agencies’ NEPA obligations with a goal of expediting projects and reducing the number of actions subject to NEPA review. Whether one considers NEPA an important tool for factoring environmental considerations into decision-making, or an unnecessary and bureaucratic roadblock for critical projects, the proposed changes, if adopted in their present form, raise significant questions that will likely lead to litigation, and could add uncertainty and delay to the federal environmental review process, the opposite of the stated goal of the measures.

Read the full GT Alert.

New York Governor Proposes $3 Billion Bond for Environmental Measures

Posted in New York, Wetlands

In his 2020 State of the State speech, New York Governor Andrew M. Cuomo led with a proposal to issue a $3 Billion ‘Restore Mother Nature Environmental’ Bond Act. The administration is calling it the nation’s most aggressive habitat restoration and flood reduction program. Additionally, the program appears to contemplate funding beyond the $3 billion, noting that the program will be funded “in part” by the bond issuance. In New York, such a bond, if authorized by the legislature, would have to be approved by the voters this November.

The proposed program appears focused on shoreline restoration and protection of water, wetland, and forest resources through state spending on natural shoreline treatments, wetland and floodplain restoration, and open space and forest conservation, presumably through state and local land acquisition. The proposed program will address reducing flood risk and revitalizing “critical fish and wildlife habitats by connecting streams and waterways, right-sizing culverts and dams, restoring both freshwater and tidal wetlands.” The proposal includes the creation of a “Conservation Corridors Program” focused on floodplain and wetland restoration, which areas often provide critical habitats for fish and wildlife. Other spending proposals for the bonded capital include upgrading dams and culverts to prevent flooding, moving residences out of dangerous flood plains, investing in fish hatcheries and fishing access sites, responding to harmful algal blooms, upgrading wastewater treatment plants near Lake George, expanding artificial reefs off the coast of Long Island by 2022, and doubling the size of the current Long Island Shellfish Restoration Initiative to plant an additional 200 million shellfish off the Long Island coast.

The proposed $3 billion investment focused on natural flood protection and habitat restoration appears to be the largest state investment of its kind. The governor’s policy proposal will need to be fleshed out in the coming weeks, as the executive branch proposes bill language for the bond act in its fiscal year 2021 budget, and engages with the New York legislature on the amount and parameters of the spending over the coming months, culminating in the state budget, expected to be passed by April 1, 2020. The details of the $3 Billion Restore Mother Nature Environmental Bond Act could have significant implications for resource protection, municipal planning and infrastructure improvement, and state-land preservation efforts. More details will follow as the budget process plays out over the next several months in Albany. If passed, the bond act would go to voters in November 2020.

The Dutch Supreme Court Obliges the Dutch Government to Reduce Greenhouse Gas Emissions

Posted in carbon emissions, Court Cases, Energy, Environment, Greenhouse Gas, Litigation, Netherlands

On 20 December 2019 the Dutch Supreme Court delivered its judgment in the case of Urgenda against the Dutch State. In 2013, the NGO Urgenda started a civil law procedure against the Dutch State for “knowingly exposing its own citizens to danger” by not taking sufficient measures to prevent climate change and therefore not preventing the foreseeable harm caused by climate change. The Dutch government acknowledged the potentially harmful consequences of climate change, but argued it could not be ordered to act via a court procedure. Continue Reading

Are You Ready? Revisions to Management of Fill Policy Take Effect Jan. 1

Posted in Articles, Pennsylvania, Regulatory, Solid waste

As the economy strengthens, development and infrastructure projects continue on an upward trend. Whether the project involves remediating a brownfield site or performing utility work in a public right-of-way, the management of fill material such as soil, rock or stone is often a primary consideration impacting the project’s budget. In the Commonwealth of Pennsylvania, the Pennsylvania Department of Environmental Protection (the DEP or department) generally regulates the management of fill material, however projects involving PCB-containing fill are under the oversight of the U.S. Environmental Protection Agency (EPA). On Nov. 2, the DEP issued a revised management of fill policy (the policy), which makes sweeping changes to the existing policy in effect since Aug. 7, 2010. The policy supplements existing requirements outlined in Pennsylvania’s Solid Waste Management Act municipal and residual waste regulations and provides guidance on the management of clean fill and regulated fill in the commonwealth. See 25 Pa. Code Section 271.1 and § 287.1. Many industries, ranging from developers to soil recycling facilities to soil brokers, must get up to speed by Jan. 1, 2020 when the policy takes effect.

I review the requirements of this policy in this month’s Legal Intelligencer/Pennsylvania Law Weekly column. Read Are You Ready? Revisions to Management of Fill Policy Take Effect Jan. 1, 42 Pa. L. Weekly 52 (December 26, 2019), by clicking here.

Congress Takes Initial Steps to Address PFAS in the National Defense Authorization Act Conference Report

Posted in CERCLA, Chemicals, Compliance, Contamination, Emerging Contaminants, Environment, EPA, Federal Regulation, GT Alert, PFAS, PFOA, PFOS, Safe Drinking Water Act, Superfund, TSCA

On Dec. 11, the House of Representatives passed S. 1790, the National Defense Authorization Act (NDAA) conference report. The Senate followed suit on Dec. 17, bringing an end to protracted negotiations on this annual must-pass legislation. In one of their final acts, conferees agreed to provisions addressing per- and polyfluoroalkyl substances (PFAS). Two major provisions – designation of PFAS as Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) hazardous substances and requirements to promulgate PFAS drinking water standards – were left out of the bill.1 Their absence, and the controversy they engendered, have diverted attention from the many significant PFAS provisions that did make it into the final NDAA package. The NDAA represents Congress’ first major response to public concern about these “forever” chemicals, and the NDAA provisions signal that much more is to come from Congress on the subject of PFAS.

The NDAA PFAS provisions are focused for the most part on the Department of Defense (DOD). They require DOD to stop using PFAS in firefighting foam and other applications, and to cooperate with affected communities and begin cleaning up resources contaminated by military PFAS uses. However, two provisions have much broader application.

Read the full GT Alert.

Update: Latin America Renewable Energy – Calls for Public Bids

Posted in Energy, GT Alert, Latin America, Mexico, Renewables

This Mexico City GT Alert provides an update to our August 2019 alert, Latin America Renewable Energy: Calls for Public Bids.

Click here for the full GT Alert, which provides updates on Latin America renewable energy public bids in Colombia, Mexico, Argentina, Ecuador, Chile, and the Dominican Republic.

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