As most of our readers know, the Resource Conservation and Recovery Act (RCRA)gives the EPA control over  the generation, transportation, treatment, storage, and disposal of hazardous waste, often described as “cradle-to-grave” coverage of hazardous wastes.  One of its provisions, 42 U.S.C. § 6972(a)(1)(B), allows any person to bring suit against another “who has contributed . . . to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” Read More »

Share | Email| Comments|  Topics: Citizen Suit, Contamination, Cost Recovery, RCRA, Waste

Last week, the United States District Court for the Western District of Washington, in Trident Seafoods Corp. v. Bryson, No. C12-134 MJP (Nov. 30, 2012), sent litigants a reminder about the necessity of proper standing in rulemaking challenges.  Indeed, standing is often one of the most difficult aspects of these cases, and often result in early case dismissal, as it did in Trident. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Federal Procedure, Procedure, Rulemaking, Standing

Although they’ve been around forever, oil and gas leases continue to provide fodder for the courts, as we’ve discussed before, especially in light of the boom (or temporary bust, as some might argue) of shale gas drilling.  And it is exactly that boom (or bust) that brings us the decision in Beardslee v. Inflection Energy, LLC, No. 3:12-CV-00252 (N.D.N.Y. Nov. 15, 2012). Read More »

Share | Email| Comments|  Topics: Drilling, Leases, Marcellus Shale, Mineral Rights, Oil and Gas, Real Estate, Royalties

Last Friday, the U.S. Court of Appeals for the District of Columbia Circuit published two decisions in cases involving environmental groups’ challenges to EPA’s efforts to regulate certain classes of hazardous air pollutants (“HAPs”).  Both cases concerned Section 112(c)(6) of the Clean Air Act, a provision enacted by Congress in 1990 that requires EPA to (1) complete a list of sources of seven specified HAPs that accounts for at least ninety percent of the total emissions of each of the seven HAPs and (2) subject these listed sources to emissions standards.  42 U.S.C. § 7412(c)(6).  Section 112(c)(6) gives EPA a choice among two emission standards:  (1) a stringent standard known as “maximum achievable control technology” (“MACT”) or (2) a standard based on health thresholds.  See § 112(c)(6), (d)(2) and (d)(4).  The cases decided last Friday highlight both procedural and substantive aspects of regulating air pollution. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Air, Clean Air Act, D.C. Circuit, Decisions of Note, HAPs, Hazardous Air Pollutants, Mercury, Rulemaking

MGKF’s Bridget Dorfman has written a short article, posted on our website, that identifies environmental issues businsses should be aware of as they clean up, resume operations, and repair/rebuild.  You can find it here and you can find Bridget at bdorfman@mgkflaw.com. 

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In July, 2001, the New Jersey Superior Court decided the case of White Oak Funding, Inc. v. Winning, 341 N.J. Super. 294 (App.Div.), cert. denied. 170 N.J. 209 (2001), holding that an owner of contaminated property purchased before September 14, 1993, was not liable for historic contamination that the owner did not contribute to.  Only a week later, amendments to New Jersey’s Industrial Site Recovery Act (“ISRA”) became effective.  Among other things, those amendments provided that owners who acquired property prior to September 14, 1993 would not be liable for clean-up costs if “at the time of acquisition, [the purchaser undertook] all appropriate inquiry on the previous ownership and uses of the property based upon generally accepted good and customary standards.”  N.J.S.A. 58:10-23.11g(d)(5).  So, did this amendment abrogate the holding in White Oak?   A decade later, on October 29, 2012, the New Jersey Superior Court has said that it did. Read More »

Share | Email| Comments|  Topics: Cleanup, Condemnation, Contamination, Cost Recovery, Eminent Domain, ISRA, New Jersey, Real Estate, Spill Act, Takings

Some may be surprised to learn that the storage and production of natural gas do not always complement one another.  A conflict can occur when one gas company stores its gas by injecting it back into the ground, typically into a depleted gas field.  So long as gas pressure can be maintained underground, the depleted field provides a natural reservoir for storing gas.  If areas of low pressure are created near the storage area, the stored gas tends to migrate toward these areas. The drilling for and extraction of natural gas can create such low pressure zones.  Effectively, production activities near an underground storage area suck the gas away from where it is being stored. Read More »

Share | Email| Comments|  Topics: Drilling, Exploration, Marcellus Shale, Natural Gas, Nuisance, Oil and Gas, Storage

A few months ago, we reported on an interesting Seventh Circuit opinion on CERCLA §107 claims issued in the Fox River clean-up litigation in Wisconsin.  The Fox River clean-up, and the ensuing private party litigation, represents one of a number cases that have arisen from EPA’s efforts to remediate water bodies throughout the country that have been declared to be Superfund sites—including the Lower Passaic River and Newark Bay in northern New Jersey, the Hudson River in upstate New York, and the Gowanus Canal in Brooklyn.  Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, CERCLA, Cleanup, Contamination, Cost Recovery, Decisions of Note, Remediation, Superfund

October Term 2012 gets underway at the U.S. Supreme Court this week, and the Fifth Amendment’s Takings Clause will be front and center in one of the arguments heard by the Court today.  In Arkansas Game & Fish Commission v. United States, No. 11-597, the Justices consider whether government actions that cause recurring flooding on a parcel of land must continue permanently in order to constitute a taking for which the government is obligated to provide just compensation.  The Court’s decision in this case could affect whether a variety of government actions that cause recurring physical invasions of land demand compensation under the U.S. Constitution. Read More »

Share | Email| Comments|  Topics: Arkansas, Cases to Watch, Fifth Amendment, Flooding, Supreme Court, Takings Clause

On Tuesday, in Citizens for Pennsylvania’s Future v. Ultra Resources, Inc., No. 4:11-CV-1360 (M.D.PA. Sept. 24, 2012) — a case watched closely by natural gas stakeholders in Pennsylvania — Judge Mariani of the U.S. District Court for the Middle District of Pennsylvania refused to dismiss a citizen suit brought by an environmental group challenging the validity of state air permits issued to the operator of a series of natural gas compressor stations, potentially opening the door for similar Federal court challenges to air permits previously issued by state regulators in Pennsylvania and elsewhere.  Approximately three years ago, the Pennsylvania Department of Environmental Protection (“PADEP”) issued separate authorizations for Ultra Resources, Inc. (“Ultra”) to construct seven compressor stations pursuant to a state general permit generally known as “GP-5.”  In issuing these authorizations, PADEP considered each of the compressor stations as a separate “facility.” If PADEP had considered the compressor stations to be a single “major” facility, then Ultra would have been required to obtain a more stringent non-attainment new source review (“NNSR”) permit before commencing construction. Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, Clean Air Act, Drilling, Emissions, Federal Procedure, Marcellus Shale, Oil and Gas, Pennsylvania, Permits