Two recent decisions from two different states, Pennsylvania and West Virginia, suggest that courts are becoming increasingly skeptical of landowners seeking to capitalize on oil and gas companies utilizing horizontal directional drilling (HDD) to access resources under the property of the landowners. Read More »

Share | Email| Comments|  Topics: Damages, Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Natural Gas, Nuisance, Oil and Gas, Pennsylvania, Property Damage, Property Value, Real Estate, Royalties, West Virginia

On Tuesday, the Pennsylvania Supreme Court issued an order refusing to hear an appeal of the Commonwealth Court’s holding that municipalities lack the authority to regulate in the areas of environmental protection reserved to the Pennsylvania Department of Environmental Protection. Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677 (Pa. Cmwlth. 2018).  Read More »

Share | Email| Comments|  Topics: Case Update, Environmental Rights Amendment, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Zoning

Last week, Judge Chad F. Kenney, former Delaware County Court of Common Pleas Judge and recent appointee to the United States District Court for the Eastern District of Pennsylvania, granted Defendant Bethlehem Landfill Company’s motion to dismiss a putative class action alleging that landfill odors created a public and private nuisance for all households within a 2.5-mile radius of the facility. Baptiste v. Bethlehem Landfill Co. et al., No. 18-2691, 2019 WL 1219709 (E.D. Pa. Mar. 13, 2019). The lead plaintiffs, Robin and Dexter Baptiste, reside 1.6 miles from the facility and allege that odors from the facility impacted their property value and ability to enjoy their property. Id. at *5. They alleged that the conditions affected 8,400 households within a 2.5-mile radius. Id.  They styled their claims as claims for public nuisance, private nuisance, and negligence. Id. at *1. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Landfill, Negligence, Nuisance, Odors, Pennsylvania, Private Right of Action, Property Value

Last week, the Commonwealth Court decided that municipalities lack the authority to regulate in the areas of environmental protection reserved to the Pennsylvania Department of Environmental Protection. Frederick v. Allegheny Twp. Zoning Hearing Bd., No. 2295 C.D. 2015 (Oct. 26, 2018).  In this latest judicial decision addressing Article I, Section 27 of the Pennsylvania Constitution (the “Environmental Rights Amendment”), the Court upheld a zoning ordinance that makes oil and gas development a permitted use by right in all zoning districts, including residential and agricultural districts, subject to certain standards related to road safety; the clearing of brush and trees; emergency planning; dust, noise and lighting controls; and security measures. Read More »

Share | Email| Comments|  Topics: Environmental Rights Amendment, Pennsylvania, Pennsylvania Department of Environmental Protection, Zoning

Last week, the United States Court of Appeals for the Third Circuit resurrected two separate lawsuits filed by residents living near the Willow Grove Naval Air Reserve Station in Horsham Township, Pennsylvania and the Naval Air Development Center in Warminster Township, Pennsylvania, which both seek to have the Navy fund medical monitoring programs for exposure to drinking water impacted by two emerging contaminants – perfluorooctanoic acid (“PFOA”) and perfluorooctanesulfonic acid (“PFOS”) – attributable to operations at the two Naval facilities.  In two parallel cases that were joined for appeal – Giovanni et al. v. U.S. Dep’t of the Navy and Palmer et al. v. U.S. Dep’t of the Navy, 2018 WL 4702222 (3d Cir. Oct. 2, 2018) – the Third Circuit held that the residents’ claims for medical monitoring under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”) were not barred by the Navy’s ongoing investigation and remediation at the sites under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), because a request for medical monitoring “does not interfere with or alter the ongoing cleanup efforts.”  In contrast, the Third Circuit affirmed the dismissal of the residents’ separate claim that sought to have the Navy perform a government-led health assessment or health effects study, which was barred as a challenge to the Navy’s ongoing response actions at the sites. Read More »

Share | Email| Comments|  Topics: Cases to Watch, CERCLA, Drinking Water, Groundwater, HSCA, Medical Monitoring, Pennsylvania, RCRA, Remediation, Removal, Sovereign Immunity, Third Circuit, Toxic Torts

Last week the Third Circuit held that the owner of a remediated site could be liable under CERCLA § 107(a) for environmental response costs incurred before it acquired the property. Pa. Dep’t of Envtl. Prot. v. Trainer Custom Chem., LLC., __ F.3d __, No. 17-2607, 2018 WL 4844077 (3d Cir. 2018). In its opinion reversing the district court’s grant of partial summary judgment in advance of trial, the court concluded that “all costs” in § 107(a)(4)(A) means an owner is “indeed liable for all response costs, whether incurred before or after acquiring the property.” Id. at *5. Our blog post discussing the district court’s decision, 204 F. Supp. 3d 814 (E.D. Pa. 2016), can be found here.  Read More »

Share | Email| Comments|  Topics: Allocation, Bona Fide Prospective Purchaser, Case Update, CERCLA, Contamination, Contribution, Cost Recovery, HSCA, Pennsylvania, Pennsylvania Department of Environmental Protection, Real Estate, Remediation, Superfund, Third Circuit

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

In Rice v. First Energy Corporation, a putative class of plaintiffs living near a former landfill filed trespass, nuisance, negligence, and medical monitoring claims against First Energy Corporation and NRG Energy, Inc., alleging that each Defendant was liable for claims arising from their respective subsidiaries’ disposal of coal ash in the landfill. No. 2:17-cv-489-LPL, 2018 WL 4282850, at *1 (W.D. Pa. Sept. 7, 2018). Though it frequently noted Plaintiffs’ lackluster efforts to pursue discovery and their heavy reliance on conclusory, minimalistic arguments, U.S. Magistrate Judge Lisa Pupo Lenihan nevertheless dug deep into the parties' arguments to issue a thorough and strong opinion highlighting the difficulty of piercing a corporate veil in an environmental case and concluding that the Defendants were neither corporate successors nor alter egos of their respective subsidiaries. Id. at *13. Read More »

Share | Email| Comments|  Topics: Alter Ego, Class Actions, Coal Ash, Corporate Veil, Landfill, Medical Monitoring, Negligence, Nuisance, Pennsylvania, Toxic Torts, Trespass

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