Reminding all Superfund practitioners that while the application of allocation principles and factors may be flexible it is not without boundaries, on September 11, 2018, the Third Circuit filed an opinion vacating and remanding a District Court’s equitable allocation of cleanup costs because the lower court’s methodology resulted in an allocation that was too “speculative.” Trinity Indus., Inc. v. Greenlease Holding Co., No. 16-1994, 2018 WL 4324261, at *12 (3d Cir. Sept. 11, 2018).  The Court pointed to two "mathematical" errors in the District Court’s analysis, and noted that although courts do not have to be perfectly precise in their calculations, they must be able to demonstrate a solid mathematical foundation for arriving at their final number. The ruling also offered guidance for the lower court on an appropriate methodology and application of certain equitable factors. This guidance could prove helpful for other practitioners in this area of the law regarding what the Third Circuit would deem non-speculative, and therefore acceptable. Read More »

Share | Email| Comments|  Topics: Allocation, CERCLA, Cleanup, Contamination, Contribution, Indemnification, Pennsylvania, Pennsylvania Department of Environmental Protection, Property Value, Remediation, Superfund, Third Circuit

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

Since 2009, the Delaware River Basin Commission (“DRBC”) has effectively placed a moratorium on fracking activity within the Delaware River Basin (the “Basin”), premised on its assertion that any such activity is a “project” over which the DRBC has authority. But in Wayne Land & Mineral Group LLC v. Del. River Basin Comm’n, No. 17-1800, 2018 WL 3233784 (July 3, 2018), the Third Circuit, overturning a Pennsylvania District Court decision, has held that Delaware River Basin Compact’s (the “Compact”) definition of “project” is ambiguous, and that the DRBC may be without authority over fracking. The Third Circuit’s decision creates uncertainty regarding the scope of the DRBC’s authority and the future of fracking and other land use activities in the Basin. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Declaratory Relief, Delaware River Basin Commission, Drilling, Energy, Exploration, Groundwater, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Earlier this month, the Pennsylvania Supreme Court affirmed in part and reversed in part a preliminary injunction issued by the Pennsylvania Commonwealth Court with respect to newly promulgated regulations regarding unconventional well drilling. Marcellus Shale Coal. v. Dep't of Envtl. Prot. of Commonwealth, 115 MAP 2016, 2018 WL 2452607 (June 1, 2018). In the decision, the Court rejected the argument that courts should defer to a regulatory agency when deciding a preliminary injunction with respect to the agency’s authority to issue regulations, and also shed light on how it interprets allegations of vagueness and conflict in agency regulations. The majority opinion was authored by Chief Justice Saylor and was joined in full by all the associate justices except for Justice Donohue, who authored a concurring and dissenting opinion. Justice Donohue’s opinion, perhaps most notably, voices her disagreement with the Commonwealth Court’s interpretation of Article 1, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment. Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Energy, Environmental Rights Amendment, Groundwater, Injunction, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Pipelines, Water

On June 1, 2018, the Pennsylvania Supreme Court, in a 4-3 decision, held that a municipality was required to amend its zoning ordinance before it could allow natural gas operations in a residential-agricultural zoning district. Gorsline v. Bd. of Sup. of Fairfield Twp., et al., No. 67 MAP 2016, 2018 WL 2448803 (June 1, 2018).  Specifically, the Court ruled that the Fairfield Township Board of Supervisors improperly found that the drilling and operation of a natural gas well in a Residential-Agricultural (“R-A”) district was “similar to” other uses in the R-A district.  Although the Township’s zoning ordinance did not specifically allow drilling, the zoning ordinance provided that when a use is not specifically permitted by the zoning ordinance, the Supervisors may permit the use if, among other things, it is “similar to and compatible with the other uses permitted in the zone where the subject property is located.”  The Supervisors found that Inflection Energy, LLC’s proposed gas drilling was “similar to” other uses in the R-A district.  The Commonwealth Court upheld the Supervisors’ decision, finding that the gas drilling was similar to and compatible with a “public service facility,” which is a conditional use in the R-A district, and which is defined as the “erection, construction, alteration, operation or maintenance of buildings, power plants or substations, water treatment plants or pumping stations; sewage disposal or pumping plants and other similar public service structures by a utility, whether publicly or privately owned, or by a municipal or other governmental agency, including the furnishing of electrical, gas, communication, water supply and sewage disposal services.”   Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Environmental Rights Amendment, Marcellus Shale, Pennsylvania, Residential, Zoning

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

Last week, the Pennsylvania Supreme Court issued its highly anticipated opinion in EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 6 MAP 2017, 2018 WL 1516385, (Pa. Mar. 28, 2018), holding that the Clean Streams Law (“CSL”) does not authorize the Department of Environmental Protection (“DEP”) to impose daily penalties for the ongoing, continuing presence of pollutants in waters of the Commonwealth. In the 5-to-2 decision, which affirmed in part the Commonwealth Court’s preceding opinion, the Court ruled that to construe the language of the CSL as allowing penalties for the movement of pollutants from one water body to another (DEP’s “water-to-water” theory) was not only unsupported by the statutory language, but would also expose the regulated community to potentially massive civil penalties, and as such, DEP’s penalty calculations including penalties for the days the pollutants remained in the affected groundwater after the initial discharge were excessive. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Case Update, Cases to Watch, Civil Penalties, Clean Streams Law, Contamination, Decisions of Note, Declaratory Relief, Drilling, EHB, Enforcement Action, Groundwater, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Remediation, Water, Wetlands

Earlier this month, in B&R Resources, LLC v. DEP, No. 1234 C.D. 2017 (March 15, 2018), Pennsylvania’s Commonwealth Court held that the sole managing member of a limited liability company may be personally liable for his company’s failure to plug certain abandoned wells. In doing so, the Commonwealth Court clarified that the participation theory of liability, which essentially extends liability from a corporation to its officers who “participated” in corporate wrongdoing, may encompass not only intentional misconduct by an officer but also deliberate inaction. Read More »

Share | Email| Comments|  Topics: Energy, Exploration, Marcellus Shale, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Pipelines

On Monday, the Pennsylvania Environmental Hearing Board (the “Board”) issued an adjudication in Logan v. DEP, EHB Docket No. 2016-091-L (Adjudication issued Jan. 29, 2018), in which the Board dismissed an appeal challenging the Pennsylvania Department of Environmental Protection’s (“DEP”) issuance of an air quality plan approval to Purdue Agribusiness LLC (“Purdue”) for construction of a soybean solvent extraction plant. In upholding the plan approval, the Board rejected the appellants’ argument that DEP’s issuance of the plan approval violated Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Air, Environmental Rights Amendment, 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