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

Last month, in U.S. v. CITGO Petro. Corp., 711 Fed. Appx. 237 (5th Cir. 2017), the United States Court of Appeals for the Fifth Circuit affirmed an $81 million civil penalty assessment under the federal Clean Water Act (“CWA”) against CITGO Petroleum Corp. (“CITGO”), for unpermitted wastewater discharges from its plant in Lake Charles, Louisiana when a severe rainstorm caused two storage tanks to fail and over 2 million gallons of oil to be discharged into local waterways.  In the underlying case before the United States District Court for the Western District of Louisiana, CITGO conceded liability, and therefore, the only issue for trial was the total penalty to be assessed.  After a two-week bench trial, the District Court determined that CITGO had failed to properly maintain its wastewater storage tanks and allowed sludge and waste oil to accumulate in the tanks, which lessened their total storage capacity and ability to withstand a storm surge.  The District Court ultimately assessed a $6 million civil penalty against CITGO, which EPA appealed.  Read More »

Share | Email| Comments|  Topics: Civil Penalties, Clean Water Act, Cleanup, Contamination, EPA, Fifth Circuit, Louisiana, Storage Tank, Stormwater, Water

On February 12, 2018, the Appellate Division of the Superior Court of New Jersey held that environmental groups had standing to challenge on appeal the trial court’s ruling accepting DEP’s $225 million settlement with Exxon Mobil for Natural Resource Damages (“NRD”), which include compensation for the injury and destruction of natural resources and the public’s loss of the use and enjoyment of those resources under New Jersey’s Spill Compensation and Control Act (“Spill Act”). See New Jersey Dep’t of Envtl. Prot. v. Exxon Mobil Corp., No. A-0668-15T1, 2018 WL 823001 (N.J. Super. Ct. App. Div. Feb. 12, 2018). The appellate court ultimately upheld the settlement, notably the largest NRD settlement in New Jersey’s history, finding that it was a reasonable compromise and was in the public interest.  Two weeks later, however, the environmental groups whom the Court found had standing to appeal, including the New Jersey Sierra Club and the Delaware Riverkeeper filed a Petition for Certification, requesting that the New Jersey Supreme Court review the decision.  Read More »

Share | Email| Comments|  Topics: Intervention, Natural Resource Damages, New Jersey, Spill Act