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

The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Due Process, EHB, Energy, Federal Procedure, Hearing Board, Natural Gas Act, NPDES, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

In a case of first impression in the Third Circuit, the Honorable Eduardo C. Robreno has held that the Pennsylvania Department of Environmental Protection (“PADEP”) may not, under CERCLA, recover costs from current landowners if the costs were incurred prior to the owner's purchase of contaminated property.  In PADEP v. Trainer Custom Chemical LLC, No. 15-1232 (E.D. Pa. Aug. 30, 2016), PADEP sought to recover, among other things, over $800,000 in electricity bills which it had paid prior to October, 2012 to keep certain remediation equipment operating at the Stoney Creek Technologies Superfund Site (the “Site”), which Site was subsequently purchased by the defendant, Trainer Custom Chemical, LLC.  PADEP's claim for such costs was rejected by Judge Robreno, who held that “a new owner is not liable for recovery costs incurred before he took ownership of the facility.”  Id. at *21. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Cost Recovery, Pennsylvania, Pennsylvania Department of Environmental Protection, Real Estate, Remediation, Removal, Superfund, Third Circuit

Last week, the United States Court of Appeals for the Third Circuit struck down challenges by environmental organizations to the Federal Energy Regulatory Commission’s (FERC) approval of an expansion of the Transcontinental pipeline, a 10,000-mile pipeline that extends from South Texas to New York City and is operated by Transcontinental Gas Pipe Line Company, LLC (“Transco”).  In doing so, however, the Court held that the environmental organizations had properly invoked a provision of the federal Natural Gas Act to challenge water quality-related permits issued by the states of Pennsylvania and New Jersey.  Thus, the decision, Delaware Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot, No. 15-2122 (3d Cir. August 8, 2016), provides that the Court of Appeals has exclusive jurisdiction over challenges to permits issued to an interstate natural gas facility to certify compliance with State water quality standards promulgated under federal supervision, as well as with federally-established Clean Water Act requirements.   Read More »

Share | Email| Comments|  Topics: Clean Water Act, Energy, Federal Energy Regulatory Commission, Federal Procedure, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pennsylvania, Permits, Procedure, Subject Matter Jurisdiction, Third Circuit, Water, Wetlands

Last summer we reported on Bell v. Cheswick Generating Station, 903 F. Supp. 2d 314 (3rd Cir. 2013), a Third Circuit decision which held that the Clean Air Act does not preempt state law claims for personal and property damage caused by air pollutants.  And in March, we noted, not unsurprisingly, that defendant GenOn Power had filed a Petition for Cert to the U.S. Supreme Court.  On June 2, that Petition was denied, which may have been the impetus for the Supreme Court of Iowa to release its decison in Freeman v. Grain Processing Corp., No. 13-0723 (June 13, 2014), holding that neither the Clean Air Act nor Iowa's analogous state act pre-empted similar state law claims.  The decision is a hefty one, providing a historical overview of the Clean Air Act and preemption law and an in-depth discussion leading to the Court's final determination.  Put this one aside for one evening when you're sitting in the recliner with a glass of wine at your side.   

Share | Email| Comments|  Topics: Air, Case Update, Clean Air Act, Iowa, Nuisance, Preemption, Third Circuit, Toxic Torts, Trespass

This summer, we reported on the Third Circuit’s decision in the Bell v. Cheswick Generating Station case, which held that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims in a putative class action filed by over 1,500 residents complaining that the operations of GenOn Power Midwest, L.P.’s (“GenOn’s) coal-fired electric generation station constituted a nuisance under Pennsylvania common law.  Read More »

Share | Email| Comments|  Topics: Air, Case Update, Cases to Watch, Class Actions, Clean Air Act, Emissions, Nuisance, Pennsylvania, Preemption, Supreme Court, Third Circuit

As footnoted in yesterday’s post, the decision in Trinity Industries, Inc. v. Chicago Bridge & Iron Co., No. 12-2059 (3^rd Cir. Aug. 20, 2013), was a twofer.  Yesterday, we wrote about that part of the decision which held that a party who has resolved its liability under state statutes may seek contribution under Section 113(f) of CERCLA.  Today, we look at the second part of the decision, which concerns the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901, et seq.  Read More »

Share | Email| Comments|  Topics: Cleanup, Consent Decree, Contamination, Pennsylvania, Private Right of Action, RCRA, Remediation, Removal, Third Circuit, Waste

The Third Circuit keeps rolling out environmental decisions this month, and while Bell v. Cheswick Generating Station, No. 12-4216 (3d Cir. Aug. 20, 2013), received the lion’s share of press this week (including here), another decision issued the same day, Trinity Industries, Inc. v. Chicago Bridge & Iron Co., No. 12-2059 (3^rd Cir. Aug. 20, 2013), is also worth reading.  In it, the Third Circuit holds that a party who has resolved its liability to the state for remediation under state law may pursue contribution under CERCLA, which puts the Third Circuit in conflict with the Second Circuit on this issue. Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Pennsylvania, Remediation, Superfund, Third Circuit