David Mandelbaum

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The Superfund Contribution Mind Pretzel…or One of Them

From the first days of Superfund litigation, lawyers and courts have complained that Congress did not distinguish itself when drafting the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sections 9601-75. As the law has developed, court decisions have created additional problems. The interplay among the private cost recovery provision of Section 107(a)(1-4)(B) … Continue Reading

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

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 … Continue Reading

Environmental Cases in the Pennsylvania Appellate Courts During 2019

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 … Continue Reading

Maryland Court of Appeals Limits Bases for Challenging CWA Permits under the Chesapeake Bay TMDL

A recent state appellate court decision sharply limited the bases on which Clean Water Act permittees may challenge permitting requirements imposed to comply with a federal Chesapeake Bay “Total Maximum Daily Load” (“TMDL”), often described as a watershed-wide “pollution diet.” The decision directly impacts municipalities with separate stormwater sewer (“MS4”) permits, as well as certain … Continue Reading

Court Revisits PEDF on Remand: Limits on Environmental Rights Amendment

On July 29, the Pennsylvania Commonwealth Court returned to Pennsylvania Environmental Defense Foundation v. Commonwealth, a leading case on the Environmental Rights Amendment to the Pennsylvania Constitution. The court appears to have decided that the commonwealth is free to allow use of Pennsylvania’s pubic natural resources and to apply the income however it chooses. Only … Continue Reading

Environmental Compliance and Land Use “Special Permits” in Massachusetts

Does compliance with environmental regulations suffice to prove that an operation is safe? Maybe not, for purposes of land use approvals in Massachusetts. Last week, the Massachusetts Appeals Court decided Fish v. Accidental Autobody, Inc., No. 18-P-345 (Mass. App. Ct. May 24, 2019), an appeal from the grant of a “special permit” for an autobody … Continue Reading

Credits for Superfund Settlement Payments and What That Means for Settlement Strategy

When many parties are jointly and severally liable for the same contamination problem, not every one of those parties can pay more than its fair share of that joint liability in a settlement. Section 113(f)(2) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) assures that the non-settling parties get the benefit … Continue Reading

Pennsylvania Prospective Purchasers of Contaminated Property and Their Administrative Records

On April 26, 2019, the Pennsylvania Environmental Hearing Board (EHB) voided two amendments to a prospective purchaser agreement (PPA) for the Bishop Tube Site entered into in 2007 and 2010. Del. Riverkeeper Network v. Dep’t of Envt’l Prot’n, EHB Dkt. No. 2018-020-L (Constitution Drive Partners). The underlying PPA was dated 2005. The Department of Environmental … Continue Reading

Can a State Provide Oversight Under a Federal CERCLA Order or Decree?

Section 400(h) of the National Contingency Plan (NCP) contains an unremarked, yet problematic, last sentence. The NCP, of course, governs response actions under the federal Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA or Superfund); the government cannot recover costs incurred inconsistently with that regulation. 42 U.S.C. § 9607(a)(1-4)(A). Section 400(h) provides: (h) Oversight. The … Continue Reading

Limits on Administrative Orders to Clean Up in Delaware

On Feb. 21, 2019, the Delaware Superior Court decided that the state’s Department of Natural Resources and Environmental Control (DNREC) cannot order an environmental violator to remedy its violation under the department’s general enforcement statute. That is, under that statute, DNREC can order a person illegally disposing of solid waste to stop adding to the … Continue Reading

Anticipating Environmental Issues in an Economic Downturn: 2019 Edition

On the morning of Dec. 25, the News Analysis on page A1 of the New York Times led off with this cheery holiday thought: “Sometime in the last couple of months, predictions of a major economic downturn or recession in 2019 went from being a crank view to the conventional wisdom.” At the front end of the … Continue Reading

Potential New Tools to Sue for a Faster Cleanup

Soil or groundwater cleanups can take a long time. When one person conducts the cleanup and another has an interest in its completion, the two can disagree over the pace of the project. That is typically a three-party issue involving the regulator—for example, the Environmental Protection Agency or the Department of Environmental Protection. Resolving the … Continue Reading

Mass SJC Reiterates that Property Damage Liability under Mass. G.L. Chap 21E is Residual to Cleanup Liability

Section 5(a)(iii) of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (“Chapter 21E”) makes persons liable to clean up releases of oil or hazardous material also liable to any other person for property damage caused by the release. The Supreme Judicial Court decided a case on January 19 restating clearly that private … Continue Reading

Environmental Cases in the Pennsylvania Appellate Courts During 2017

The Pennsylvania appellate courts decided about two dozen cases that one could call “environmental” last year. A brief review follows that necessarily gives short shrift to some of these opinions. This review may also omit some cases, for which I apologize. Read Environmental Cases in the Pennsylvania Appellate Courts During 2017 by clicking here.… Continue Reading

Successive Owners and an Obligation to Restore a Stream

Earlier this month, the Pennsylvania Commonwealth Court decided Becker v. Department of Environmental Protection, No. 560 C.D. 2017 (Pa. Commw. Ct. Dec. 1, 2017), a case focused primarily on what constitutes a “watercourse” or “stream” under the Pennsylvania Dam Safety and Encroachments Act. However, the court also considered whether the Department of Environmental Protection (DEP) … Continue Reading

Federal Environmental Deregulation and Pennsylvania Operations

On Oct. 16, the Environmental Protection Agency published its proposal to repeal the carbon pollution emission guidelines for existing electric power plants, the centerpiece of the Clean Power Plan, 82 Fed. Reg. 48,035. That action serves as a reminder that the current national administration takes seriously its promise to deregulate business under the environmental laws. … Continue Reading

How Will Pa. Implement the Environmental Rights Amendment?

The Pennsylvania Supreme Court’s June decision in Pennsylvania Environmental Defense Foundation v. Wolf, 161 A.3d 911 (Pa. 2017) (PEDF), has sparked many conversations about how the newly interpreted Environmental Rights Amendment to the Pennsylvania Constitution will be implemented. In my column this month for the Pennsylvania Law Weekly I hope to catalogue at least some … Continue Reading

Levitas v. Christian: Standards for Expert Opinions on Exposure Pathways in Maryland

Last week, the Maryland Court of Appeals (the highest state court) decided a lead paint toxic tort case of potential interest to environmental lawyers. Levitas v. Christian, No. 58 Sept. Term 2016 (Md. July 11, 2017), holds that a pediatrician may testify not only that the plaintiff’s injuries are the result of lead exposure, but … Continue Reading

Air Source Aggregation: Compression Station and Natural Gas Wells are Not A Single Source in Pennsylvania Merely Because they are Owned by Corporate Affiliates

On Friday, June 2, a Pennsylvania intermediate appellate court held that air emissions from a natural gas gathering system compression station and a natural gas well pad served by that gathering system could not be aggregated for purposes of air emissions permitting because they were owned by different corporations, albeit corporate affiliates.  National Fuel Gas … Continue Reading

Environmental Cases in the Pa. Appellate Courts During 2016

This month, my column in the Pennsylvania Law Weekly surveys the decisions in the Pennsylvania appellate courts during 2016 addressing environmental issues.  The cases cover the Environmental Rights Amendment, impacts of oil and gas drilling, stormwater, land contamination, air pollution, the Alternative Energy Portfolio Standards Act, solid waste management, and enforcement procedure.  Read Environmental Cases … Continue Reading

EPA’s Amendments to the Standards for Hazardous Waste Generators

Last month, the U.S. Environmental Protection Agency published its amendments to, and reorganization of, the regulations governing generators of hazardous waste, 81 Fed. Reg. 85,732 (Nov. 28). These rules govern the hundreds of thousands of enterprises nationally that produce wastes characterized or listed as hazardous under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. … Continue Reading

Annual Review of Environmental Cases from the Pennsylvania Courts

In January, my monthly column in the Pennsylvania Law Weekly reviewed the treatment of environmental issues by the Pennsylvania appellate courts in the previous year.  Read the very-cleverly-titled Environmental Cases in the Pennsylvania Courts During 2015, 39 Pa. L. Weekly 56 (Jan. 19, 2016), by clicking here. The cases addressed follow: Berner v. Montour Twp., 120 A.3d 433 (Pa. … Continue Reading

When Will the Paris Agreement Affect Day-to-Day US Environmental Practice?

On December 12, most nations of the world entered into an agreement on mitigation of and adaption to climate change.  When, one may ask, will that agreement affect what regulated entities in the United States and their lawyers do? We have posted a description of the Paris meeting, describing our colleague Jim Bacchus‘ role.  My … Continue Reading
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