In the latest development in the ongoing dispute between EQT Production Company (“EQT”) and the Pennsylvania Department of Environmental Protection (“DEP”) over DEP’s calculation of continuing violations of the Clean Streams Law (“CSL”), the Pennsylvania Commonwealth Court held that Section 301 of the CSL prohibits acts or omissions resulting in the initial active discharge or entry of industrial waste into waters of the Commonwealth, and does not authorize ongoing penalties for the continuing presence of that industrial waste in waters of the Commonwealth after its initial entry.  The Commonwealth Court’s decision in this case, EQT Production Co. v. Dept. of Envt’l Prot., No. 485 M.D. 2014 (Jan. 11, 2017), comes over one year after the Pennsylvania Supreme Court decided EQT Production Co. v. Dept. of Envt’l Prot., 130 A.3d 752 (Pa. 2015), which we reported on, holding that EQT may be permitted to challenge DEP’s continuing-violation interpretation in the Commonwealth Court before the Pennsylvania Environmental Hearing Board decides and imposes the ultimate penalty, given the threat of ballooning penalties under DEP’s ongoing-violation interpretation.  Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, Civil Penalties, Clean Streams Law, Decisions of Note, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection

Last week, the United States Court of Appeals for the Tenth Circuit ruled that a PRP’s bankruptcy settlement of its CERCLA liability did not bar that PRP from later seeking contribution for a share of the settlement – despite the bankruptcy court’s determination that the settlement represented the PRP’s “fair share” of CERCLA liability.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, Superfund, Tenth Circuit

In December of 2013, in Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901 (Pa. 2013) (“Robinson II”), the Pennsylvania Supreme Court, among other things, struck down as unconstitutional provisions of the 2012 amendments to Pennsylvania’s Oil and Gas Act, also referred to as Act 13 regarding statewide zoning laws and municipalities’ abilities to enact ordinances affecting the oil and gas industry.  On Wednesday September 28^th, in Robinson's second round before the Pennsylvania Supreme Court (Robinson IV), the Court invalidated additional provisions of Act.

The remand of Robinson II to the Commonwealth Court required the lower court to determine whether or not certain provisions of the Act regarding the review of municipal ordinances affecting oil and gas operations were severable from the Act 13 provisions that were found unconstitutional.  The remand also required the Commonwealth Court to determine; (a) whether two other Act 13 sections, one related to the disclosure of hydraulic fracturing chemical trade secrets to health professionals and the other related to the scope of PADEP notification requirements after spills, violated Article III, Section 32 (no “special laws”) or Article III, Section 3 (the “single subject rule”) of the Pennsylvania Constitution; and (b) whether another Act 13 section regarding the use of eminent domain for gas storage violated the 5^th amendment of the U.S. Constitution and Article 1, Section 10 of the Pennsylvania Constitution. The case before the Supreme Court was an appeal to the Commonwealth Court’s ruling on these issues. Read More »

Share | Email| Comments|  Topics: Act 13, Case Update, Decisions of Note, Legislation, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Real Estate

Earlier this month, for the first time a New Jersey trial court applied the often pled, but seldom effective, laches defense to bar a private-party claim for contribution under the New Jersey Spill Compensation and Control Act (the “Spill Act”).  Laches is an equitable principle that can be used to defend a claim that has become too “stale” by the plaintiff’s unreasonable delay in pursuing the claim, and where the defendant has suffered some harm from the delay.  Laches can bar a claim even if the plaintiff initiates the lawsuit within the applicable statute of limitations, or where no statute of limitations exists – such is the case for private party contribution claims under the Spill Act, which last year the New Jersey Supreme Court affirmed in Morristown Assoc. v. Grant Oil Co., 220 N.J. 360 (2015) are not subject to any statute of limitations.  In light of the Morristown decision, private claims for contribution under the Spill Act could therefore be brought decades after the discovery of contamination at a site.   Read More »

Share | Email| Comments|  Topics: Cases to Watch, Contamination, Contribution, Cost Recovery, Decisions of Note, Laches, New Jersey, Remediation, Spill Act, Statute of Limitations

Several years ago we reported on Community Action & Environmental Justice v. Union Pacific Corporation, in which a California District Court held the dispersion into the air of particulate matter that reaches the ground or water did not constitute a “disposal” subject to RCRA but, instead, was subject to regulation under the Clean Air Act.  That District Court opinion was affirmed in 2014, in Community Action & Environmental Justice v. Union Pacific Corporation, 764 F.3d 1019 (9^th Cir. 2014).  Yesterday, in the case of Pakootas v. Teck Cominco Metals, No. 15-35228 (9^th Cir. July 27, 2016), the Ninth Circuit expanded this analysis of the relative roles of our environmental laws by holding that a party who disperses air pollutants that eventually settle into the ground or water are not arrangers liable under CERCLA as they have not “disposed of” hazardous substances under the Act. Read More »

Share | Email| Comments|  Topics: Air, Arranger Liability, Bona Fide Prospective Purchaser, California, CERCLA, Clean Air Act, Contamination, Decisions of Note, Emissions, Hazardous Air Pollutants, Ninth Circuit, RCRA, Superfund

As part of EPA’s investigation of a Superfund site, EPA typically issues a 104(e) information request to any person or entity that EPA believes to have information regarding release of hazardous substances at the site, including those that may be considered to be PRPs charged with the ultimate cleanup of the site.  Responding to a 104(e) request often requires the recipient to provide detailed responses regarding historical and current industrial operations, and can often set the stage for settlement negotiations with EPA and other PRPs regarding funding the investigation and remediation of the Superfund site. In an unpublished non-precedential opinion filed yesterday, the United States Court of Appeals for the Ninth Circuit ruled that receipt of a 104(e) information request for a Superfund site triggers an insurer’s duty to defend a policyholder for attorneys’ fees and related costs associated with responding to the request.   Read More »

Share | Email| Comments|  Topics: CERCLA, Decisions of Note, Defense Costs, Duty to Defend, Insurance, Insurance Coverage, Ninth Circuit

To close out 2015, the Pennsylvania Supreme Court issued several opinions last week, including one that may potentially impact how parties challenge penalties assessed by the Pennsylvania Department of Environmental Protection (“DEP”) for violation of state environmental laws.  The case, EQT Production Co. v. Dept. of Envt’l Prot., No. J-67-2015 (Dec. 29, 2015), involves a challenge by EQT, a natural gas fracking operator, to civil penalties levied by DEP for contamination caused by a leaking fracking water impoundment.  EQT had already commenced a formal cleanup under Pennsylvania’s “Act 2” voluntary remediation program when DEP issued a civil penalty settlement demand under Pennsylvania’s Clean Streams Law for over $1.27 million, $900,000 of which was tied to ongoing violations.  DEP took the position that each day the contamination remained in the soil and/or entered groundwater or surface water constituted a continuing violation subject to additional penalties.  EQT disagreed and argued that under the Clean Streams Law, penalties could not exceed those that accrued during the time that contamination was actually being discharged into the environment.  The operator also argued that the Act 2 program governed their remediation efforts to address the contamination that remained at the site.   Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Cases to Watch, Civil Penalties, Clean Streams Law, Cleanup, Contamination, Decisions of Note, Hearing Board, Natural Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Remediation

Another opinion was issued yesterday in the Morristown Associates v. Grant Oil Co. case, Dkt. No. A-0313-11T3 (N.J. App. Div., Nov. 17, 2015), a case which became famous earlier this year when the New Jersey Supreme Court held that there is no statute of limitations for private-party contribution claims under the New Jersey Spill Act. After the case was remanded following the New Jersey Supreme Court’s decision, the Appellate Division had to address several issues that the parties had appealed, but were deemed moot when the Appellate Division previously dismissed the case on statute of limitations grounds.  Read More »

Share | Email| Comments|  Topics: Cases to Watch, Cleanup, Contamination, Cost Recovery, Decisions of Note, Negligence, New Jersey, Remediation, Spill Act, Statute of Limitations, Storage Tank

Yesterday in two parallel class action interlocutory appeals, the Sixth Circuit joined the Third Circuit in holding that the Clean Air Act does not preempt state common law tort claims related to air pollution.  The first case, Merrick v. Diageo Americas Supply, Inc., involved excess ethanol emissions from Johnny Walker and J&B brand whiskey distilleries located in Louisville, Kentucky that allegedly caused the growth of a specific type of mold on neighboring properties.  The proposed class of local property owners asserted claims for negligence, nuisance, trespass, and injunctive relief, relying on violations of a local ordinance that prohibited air pollution which caused “injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public.”  The second case, Little v. Louisville Gas & Electric Co., involved dust and coal ash emissions from a coal-fired power plant which effected local residents, and which were the subject of multiple notices of violation issued to the power company.  The class action claims in Little included claims for violations of the federal Clean Air Act and the Resource Conservation and Recovery Act, as well as state common law claims for nuisance, trespass, negligence, negligence per se, and gross negligence.  In both cases, United States District Court for the Western District of Kentucky allowed the common law claims to survive defendants’ motions to dismiss, ruling that the common law claims were not preempted by the federal Clean Air Act.   Read More »

Share | Email| Comments|  Topics: Case Update, Citizen Suit, Class Actions, Clean Air Act, Decisions of Note, Emissions, Negligence, Nuisance, Preemption, Sixth Circuit

The New Jersey Superior Court Appellate Division recently confirmed that the New Jersey Spill Act applies retroactively and abrogates the State of New Jersey’s sovereign immunity for contribution to contamination.  The case, NL Industries, Inc. v. State, Dkt. No. L-1296-14 (Law Div., Middlesex Cnty., August 27, 2014), affd. Dkt. No. A-0869-1413, (App. Div., Aug. 26, 2015), deals with the remediation of contamination related to the historic construction of a sea wall and jetty in the Laurence Harbor section of Old Bridge Township.  The sea wall and jetty are part of the Raritan Bay Superfund site, which was placed on the National Priorities List in November 2009 after EPA detected elevated levels of lead and heavy metals in the soil, beach, sand, and sediments surrounding the Bay.  In January 2014, the EPA issued a unilateral administrative order to NL Industries, the manufacturer of lead and other heavy metal slags that were used to construct the sea wall, to clean up the contamination, which is anticipated to cost in excess of $75 million.   Read More »

Share | Email| Comments|  Topics: Cases to Watch, Cleanup, Contamination, Contribution, Cost Recovery, Decisions of Note, EPA, New Jersey, Remediation, Retroactive, Sovereign Immunity, Spill Act, Superfund