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

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

A bit over two years ago, we reported here on the district court decision in TDY Holdings v. United States, 122 F. Supp. 3d 998  (S.D. Cal. 2015), in which the court allocated 0% liability to the United States, despite the fact that it was an undisputed PRP at the site.  The decision was surprising at the time and, as with many surprising decisions, it did not survive on appeal as earlier this month the Ninth Circuit held in TDY Holdings v. United States, No. 15-56483, 2017 U.S. App. Lexis 19371 (9th Cir. Oct. 4, 2017), that TDY, a military contractor, was not solely responsible for remediation costs incurred at a former aeronautical manufacturing plant and thus remanded the matter back to the lower court to take another pass at allocating liability among the two parties.  The Ninth Circuit’s opinion thus allows military contractors seeking contribution from the government for remediation costs incurred at former defense sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to breathe a long sigh of relief. Read More »

Share | Email| Comments|  Topics: California, Case Update, CERCLA, Contribution, Cost Recovery, Ninth Circuit, Remediation, Superfund

The federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), better known as Superfund, provides private parties with two types of claims to recover costs associated with investigating and remediating contaminated sites – a cost recovery claim under CERCLA Section 107(a), 42 U.S.C. § 9607(a), and a contribution claim under Section 113(f), 42 U.S.C. § 9613(f).  A party has a claim for contribution under CERCLA Section 113(f)(3)(B) if that party has “resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.”  A party can therefore settle its liability for a contaminated site with the EPA or a state government, and then seek to recover a portion of the costs of that settlement from other potentially responsible parties who contributed to the contamination at the site.  But, CERCLA imposes a 3-year statute of limitations on Section 113 contribution actions, which begins to run from the date of entry of the administrative or judicially approved settlement.  While at first, this may appear to be a cut-and-dry statute of limitations, there is ample case law exploring the nuances of what it means for a party to have “resolved” its liability with the government such that the 3-year statute of limitations begins to run.  Last month, the United States Courts of Appeals for the Ninth Circuit added to that growing body of case law, in Asarco, LLC v. Atlantic Richfield Co., 866 F.3d 1108 (9th Cir. 2017). Read More »

Share | Email| Comments|  Topics: Case Update, Cases to Watch, CERCLA, Consent Decree, Contamination, Contribution, Decisions of Note, Ninth Circuit, Statute of Limitations, Superfund

Earlier this week, the New Jersey Supreme Court ruled that Spill Act contribution claims against the State of New Jersey for events prior to April 1, 1977 – the date the statute was enacted – are barred by the doctrine of sovereign immunity.  This ruling places the State on an unequal footing with private parties for historic environmental liability under the Spill Act, and in effect, creates an automatic orphan share for pre-1977 sites where the State would otherwise have liability.  Read More »

Share | Email| Comments|  Topics: Army Corps, Case Update, Cases to Watch, Cleanup, Contamination, Contribution, Decisions of Note, New Jersey, Remediation, Retroactive, Sovereign Immunity, Spill Act, Superfund, Supreme Court

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

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

In 2014, we covered the United States Supreme Court’s decision in CTS Corp. v. Waldburger et al., 134 S. Ct. 2175 (June 9, 2014).  In Waldburger, the Court overturned a decision by the Fourth Circuit, and held that while CERCLA preempts state statutes of limitations in toxic tort personal injury and property damage actions, it does not preempt state statutes of repose, like the North Carolina statute of repose at issue, from barring similar actions.    Last week, in Stahle v. CTS Corp., No. 15-1001 (March 2, 2016), the Fourth Circuit addressed an even more basic question, whether the statute of repose at issue in Waldburger is even applicable in such cases.  Read More »

Share | Email| Comments|  Topics: Cancer, Case Update, Contamination, Eleventh Circuit, Fourth Circuit, North Carolina, Preemption, Statute of Limitations, Statute of Repose, Toxic Torts

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

We’ve been following the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218, since May, 2012, when a Colorado trial court dismissed the action following plaintiffs’ failure to establish, pursuant to a Lone Pine order, a prima facie case showing that the defendant, a natural gas drilling company, was responsible for plaintiffs’ personal injuries.  The Lone Pine order required the Strudleys to submit to the Court, before it would allow any discovery, sufficient expert opinions, scientific testing results, and personal medical information to support their claims.  In July, 2013, a Colorado Court of Appeals reversed, finding that Lone Pine orders were not permitted under Colorado law and thus the plaintiffs could not be shut out of the courthouse at such an early stage. Read More »

Share | Email| Comments|  Topics: Case Update, Causation, Contamination, Discovery, Drilling, Due Process, Marcellus Shale, Natural Gas, Oil and Gas, Procedure, Real Estate, Toxic Torts