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
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
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
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
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
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
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
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
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
