This Blog Post was authored by Timothy Johnson, a summer associate.

Earlier this month, the Commonwealth Court of Pennsylvania concluded that the Pennsylvania Environmental Hearing Board (EHB) erred in its dismissal of the petitioners’ appeal of the approval of a compressor station plan by the Pennsylvania Department of Environmental Protection (PADEP) for lack of subject matter jurisdiction. Cole v. Pennsylvania Dep't of Env't Prot., No. 1577 C.D. 2019, 2021 WL 2420667 (Pa. Cmwlth. 2021). In doing so, the Court held that Section 717r(d)(1) of the federal Natural Gas Act, which provides that federal courts have exclusive jurisdiction over “civil actions” for review of an approval or denial of a permit or approval required by federal law, does not preclude state administrative agency review of state permitting decisions. Accordingly, the EHB’s review of the matter was not preempted. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Air, Citizen Suit, Clean Air Act, EHB, Federal Energy Regulatory Commission, FERC, Hearing Board, Natural Gas Act, Oil and Gas, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Preemption, Subject Matter Jurisdiction

This Post was authored by Andrew LeDonne, a MGKF summer associate. 

On June 11, 2019 the Commonwealth Court of Pennsylvania upheld a decision by the Pennsylvania Environmental Hearing Board (“EHB”) denying the Sierra Club’s application for fees and costs under section 307(b) of the Clean Streams Law. Sierra Club v. Dep't of Envtl. Prot., 2019 WL 2426771 (Pa. Commw. Ct. 2019).

On September 1, 2016, the EHB consolidated two third-party appeals filed by the Sierra Club to challenge an National Pollution Discharge Elimination System (“NPDES) permit and a Water Quality Management (“WQM”) permit issued by the Pennsylvania Department of Environmental Protection (“DEP”) to Lackawanna Energy Center, LLC (“LEC”). In April 2017, LEC redesigned its powerplant to reduce the amount of industrial wastewater generated by the facility such that the waste could be transported by truck off-site for treatment.  DEP issued a permit modification to LEC because, as a result of the changes to its planned facility, LEC no longer required either the WQM permit or the industrial wastewater discharge portion of its NPDES permit. In light of these changes, all parties moved to dismiss Sierra Club’s appeal. After the EHB dismissed the appeal, Sierra Club petitioned for attorneys’ fees and litigation costs from DEP under section 307(b) of the Clean Steams Law, which the EHB denied after holding an evidentiary hearing on the fee petition. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Streams Law, Commonwealth Court, Fees, Hearing Board, NPDES

In the latest development in parallel cases captioned EQT Prod. Co. v. Department of Environmental Protection which have been moving through Pennsylvania state courts and the Environmental Hearing Board ("EHB") since early 2014, the Commonwealth Court of Pennsylvania affirmed the EHB’s assessment of penalties totaling $1,137,295.76 against the hydraulic fracturing company, EQT Production Company (“EQT”), for contamination to groundwater arising from a leaking wastewater impoundment. EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 844 C.D. 2017, 2018 WL 4289310 (Pa. Commw. Ct. Sept. 10, 2018). Specifically, on September 10, 2018, the Commonwealth Court held that the EHB did not commit an error of law when it held that, under Clean Streams Law (“CSL”), penalties could be assessed for every day that contamination entered the groundwater from soils “through fundamental hydrologic principles,” even if the initial spill event had ceased and there was no direct evidence of daily transmission of contamination from soil to groundwater. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Case Update, Civil Penalties, Clean Streams Law, Contamination, Declaratory Relief, EHB, Groundwater, Hearing Board, Marcellus Shale, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Water

On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Condemnation, EHB, Eminent Domain, Energy, Environmental Rights Amendment, Federal Energy Regulatory Commission, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

On April 24, 2018, the Pennsylvania Environmental Hearing Board issued a decision denying a Petition for Supersedeas filed by Center for Coalfield Justice and Sierra Club which had sought to enjoin Consol Pennsylvania Coal Company, LLC (“Consol”) from mining under a stream called Polen Run located in Ryerson Station State Park See Center for Coalfield Justice v. DEP, EHB Docket No. 2018-028-R (Opinion issued Apr. 24, 2018) (“CCJ III”). The Board’s opinion reinforces the Board’s prior decisions applying Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) in the context of a permitting decision in light of the Pennsylvania Supreme Court’s decision in Pa. Environmental Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017) (“PEDF”).  Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Citizen Suit, Clean Streams Law, Environmental Rights Amendment, Mining, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits

On November 8, 2017, the Pennsylvania Environmental Hearing Board (the “Board”) issued an adjudication in Friends of Lackawanna v. DEP, EHB Docket No. 2015-063-L (Adjudication issued Nov. 8, 2017), in which the Board upheld the Pennsylvania Department of Environmental Protection’s (“DEP”) issuance of a renewal of Keystone Sanitary Landfill, Inc’s (“Keystone”) solid waste management permit for the Keystone Landfill. At the same time, the Board added a condition to the permit requiring Keystone to prepare a groundwater assessment plan based on groundwater degradation observed in one of its monitoring wells. Interspersed throughout this decision was language that shed additional light on the Board’s view of how Article I, Section 27 of the Pennsylvania Constitution, often referred to as the Environmental Rights Amendment, applies to DEP permitting decisions. Read More »

Share | Email| Comments|  Topics: Administrative Hearing, EHB, Environmental Rights Amendment, Groundwater, Landfill, Odors, Pennsylvania, Permits, Waste

Yesterday, the Pennsylvania Environmental Hearing Board issued an important decision that provides guidance on how to apply Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) in the context of a permitting decision in light of the Pa. Supreme Court’s recent decision in Pa. Environmental Defense Found. v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017) (“PEDF”).  See Center for Coalfield Justice v. DEP, EHB Docket No. 2014-072-B (Adjudication issued Aug. 15, 2017).   Read More »

Share | Email| Comments|  Topics: Act 13, Administrative Appeals, Administrative Hearing, Clean Streams Law, EHB, Environmental Rights Amendment, Hearing Board, Mineral Rights, Pennsylvania Department of Environmental Protection, Permits, Water

The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Due Process, EHB, Energy, Federal Procedure, Hearing Board, Natural Gas Act, NPDES, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Last month I blogged about Sackett v. Environmental Protection Agency (10-1062), the case involving pre-enforcement judicial review of compliance orders under the Clean Water Act that will be argued before the United States Supreme Court this term. Read More »

Share | Email| Comments|  Topics: Administrative Hearing, Decisions of Note, Due Process, Enforcement Action, Informal Agency Action, ISRA, Leases, New Jersey, Real Estate