Category Archives: State & Local

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Is Biomass-Derived Electricity Coming Soon to a Town Near You?

Fifteen years ago, Pennsylvania adopted its alternative energy portfolio standard (AEPS), setting modest goals for investor-owned utilities and retail suppliers to include renewable power sources in their power supply mix. The goals are so modest—just 18% renewables by 2020 to 2021 (compared, for example, to neighboring Maryland’s goal of 25% by 2020 and New Jersey’s goal … 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

Enforcing the CERCLA Permit Bar . . . in State Court

From David G. Mandelbaum, a member of the Massachusetts Bar: As is familiar, section 121(e)(1) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9621(e)(1), exempts Superfund cleanups from all federal, state, and local permits. In addition, section 113(b) grants the federal district courts exclusive jurisdiction “over all controversies arising under” CERCLA. … 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

New Risk Based Corrective Action Guidance for Miami-Dade Sites

Securing risk-based closure of a contaminated site in Miami-Dade County, known as a “No Further Action with Conditions (NFAC),” typically requires the imposition of institutional controls in the form of a covenant running with the land, accompanied by an opinion of title (See Section 24-44 (2)(k)(ii) of Chapter 24, Code of Miami-Dade County, Fla.). Recently, … Continue Reading

A Busy Time for the New Jersey Department of Environmental Protection – More PFAS Action and NRD Lawsuits

On April 1, 2019, the New Jersey Department of Environmental Protection (NJDEP) proposed drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) that are significantly more stringent than the federal health advisory of 70 ppt. DEP proposed a maximum contaminant level (MCL) of 14 ppt for PFOA and 13 ppt for PFOS. PFOA and … Continue Reading

Significant Environmental Cases in Pa. Courts During 2018 (Part 2)

Part 2 of this series on the large number of environmental cases decided by the Pennsylvania appellate courts in 2018 discusses enforcement, the Oil and Gas Act, valuation, and a few other cases of note. Read David G. Mandelbaum’s article from The Legal Intelligencer supplement Pa. Law Weekly, “Significant Environmental Cases in Pa. Courts During 2018 … Continue Reading

Martinez v. Colorado Oil and Gas Conservation Commission Update

On Jan. 14, 2019, the Colorado Supreme Court held in Martinez v. Colo. Oil & Gas Conservation Comm’n, that the Colorado Oil and Gas Conservation Commission (Commission) properly denied a petition requesting that it adopt a rule that would halt the drilling of oil and gas wells for the foreseeable future. The Supreme Court’s decision reinforces … Continue Reading

Significant Environmental Cases in Pa. Courts During 2018 (Part 1)

The Pennsylvania appellate courts decided a relatively large number of environmental cases during 2018. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use regulation issues; Sewage Facilities Act (Act 537); and stormwater, earth disturbance, and stream encroachment. Read David G. Mandelbaum’s 42 Pa. … Continue Reading

Staying in Lane Under the Environmental Rights Amendment

The Commonwealth Court recently provided new guidance on the extent to which the Environmental Rights Amendment to the Pennsylvania Constitution gives municipalities or agencies additional powers or imposes on them additional obligations. Frederick v. Allegheny Township Zoning Hearing Board, No. 2295 C.D. 2015 (Pa. Commw. Ct. Oct. 26, 2018), holds that the amendment does not alter … Continue Reading

New York to Propose Stringent Drinking Water Standards

On Dec. 18, 2018, the New York State Drinking Water Quality Council, in consultation with the Departments of Health and Environmental Conservation, recommended drinking water standards for three so-called “emerging contaminants” – 1,4-Dioxane, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). The recommended “maximum contaminant levels” or “MCLs” are one part per billion (ppb) for 1,4-Dioxane, … Continue Reading

Florida Appellate Court Reverses Class Certification in Commercial Fishing Action Arising From a 65-Million-Gallon Process Water Release Into Tampa Bay

In the summer of 2004, during Hurricane Frances, an industrial facility released approximately 65 million gallons of process water into Tampa Bay. A group of commercial fishermen promptly filed a putative class action. The class representatives alleged that the release damaged the natural habitat and adversely affected commercial fishing in and around Tampa Bay. At … Continue Reading

Green Roof Initiative: Compare the Green Roof Initiative with the new proposal

Brady R. McShane authored an article in the Colorado Real Estate Journal titled “Green Roof Initiative: Compare the Green Roof Initiative with the new proposal.” The article discusses Denver’s Green Roof Review Task Force and its proposed changes to the Initiative. Passed by voters in the November 2017 election, the Green Roof Initiative aimed to decrease building energy … 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

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

Lessons of Hurricane Irma — State of Florida Focus on Hurricane Preparedness and Infrastructure

In response to the widespread impacts of Hurricane Irma in Florida (all coastlines and virtually every community), Speaker Corcoran of the Florida House of Representatives has created a new Committee on Hurricane Response and Preparedness. Speaker Pro Tempore Jeanette Nunez of Miami will chair the 16-member bipartisan Select Committee whose focus will be to gather … Continue Reading

Hurricanes Harvey & Irma: Controlling Water, Mold, Bacterial Fallout

Six Tips on Managing Water Damage, Mold Growth, and Bacterial Threats As Florida, Georgia, South Carolina, Texas, and other impacted areas begin the journey to recovery after Hurricanes Harvey and Irma, property owners are faced with the challenge of addressing water damage, preventing or remediating mold growth, and heading off bacterial threats from potentially contaminated … Continue Reading

Safe Drinking Water Act Does Not Preempt Flint Plaintiffs’ Section 1983 Claims

On July 28, 2017 the Sixth Circuit Court of Appeals reversed two lower court rulings and remanded two cases pertaining to the lead-contaminated water crisis in Flint, Michigan, concluding that plaintiffs’ claims under 42 U.S.C. § 1983 for deprivation of their federal rights were not preempted by the Safe Drinking Water Act (SDWA) (Beatrice Boler, … Continue Reading

The Margate Dune Project, Cooperative Federalism, and Problems of Litigation Procedure

The current federal administration has expressed a desire to defer largely to states through principles of cooperative federalism.  A recent case involving the dune construction in Margate, New Jersey, offers some insight into the procedural complexities this approach presents for those affected.  Where a state oversees a federally funded project, it is unlikely that one … Continue Reading
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