On March 2, 2020, the Pennsylvania Commonwealth Court ruled that a municipality was allowed to proceed with challenging the validity of certain environmental state statutes under Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment (ERA). Pa. Dept. of Envtl. Prot. v. Grant Twp., No. 126 M.D. 2017 (Pa. Cmwlth. Mar. 2, 2020). The question addressed, whether and if so the extent to which the validity of Pennsylvania’s environmental statutes can be challenged under the ERA, was one left open by the Pennsylvania Supreme Court in Pa. Envtl. Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017). Read More »

Share | Email| Comments|  Topics: Drilling, Energy, Environmental Rights Amendment, Exploration, Hydraulic Fracturing, Marcellus Shale, Oil and Gas, Pennsylvania, Pipelines, Preemption, Procedure, Solid Waste Management Act, Waste, Zoning

Last month, the D.C. Circuit, reversing a lower court decision, held that Guam was time-barred from pursuing its claims under CERCLA against the US Navy for the cleanup of the Ordot Dump on the island. Government of Guam v. United States of America, No. 1:17-cv-02487 (D.C. Cir. 2020). Of particular interest was the D.C. Circuit's determination that a 2004 Consent Decree entered into between EPA and Guam to resolve claims under a statutory scheme other than CERCLA, the Clean Water Act, nevertheless sufficiently “resolved” Guam’s liability for at least some remediation costs, giving rise to a contribution claim under Section 113 of CERCLA, bringing the D.C. Circuit in line with a majority of other federal appellate courts that have examined the issue. Read More »

Share | Email| Comments|  Topics: CERCLA, Clean Water Act, Cleanup, Contamination, Contribution, Cost Recovery, D.C. Circuit, Landfill, Remediation, Removal, Statute of Limitations, Superfund, Waste

Relying on Texas caselaw, the Fifth Circuit, in Gao v. Blue Ridge Landfill TX, L.P., No. 19-40062 (5^th Cir. Oct. 30, 2019), affirmed a district court decision which held that homeowners who moved near a preexisting landfill were subject to a two-year statute of limitations to bring suit based on odors emanating from the landfill. The case, while reliant on state law, nonetheless suggests that such claims that sound in nuisance need to be brought quickly, and that even a change in operations or uptick in odor complaints may be insufficient to reset the clock on the viability of claims. Read More »

Share | Email| Comments|  Topics: Air, Fifth Circuit, Landfill, Nuisance, Odors, Statute of Limitations, Texas, Waste

In a matter of first impression in Delaware, the Delaware Superior Court recently held that the Department of Natural Resources and Environmental Control (“DNREC”) does not have authority under its cease and desist powers to mandate that an alleged violator take affirmative corrective action. See Del. v. McGinnis Auto & Mobile Home Salvage, LLC, K17A-09-001 JJC (Del. Super. Feb. 21, 2019). The court decided that when DNREC seeks to require a violator to take affirmative action, DNREC must obtain appropriate injunctive relief in Delaware’s Court of Chancery. Read More »

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In an unpublished opinion, the United States District Court for the District of New Jersey held that the Government was not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or Resource Conservation and Recovery Act (“RCRA”) for remediation costs incurred at a former defense site. PPG Indus., Inc. v. United States, No. 12-3526, 2018 WL 6168623 (D.N.J. Nov. 26, 2018). Last year we reported on TDY Holdings v. United States, in which the Ninth Circuit rejected a zero percent liability allocation to the government for remediation costs incurred at a former aeronautical manufacturing plant. In PPG Industries, the District of New Jersey found that the Government’s general wartime control over a New Jersey chromite facility was insufficient by itself to impose liability absent a direct connection between the Government and waste disposal activities. The District Court’s decision highlights a hurdle for private parties hoping to hold the government responsible for cleanup costs incurred at former defense sites. Read More »

Share | Email| Comments|  Topics: Allocation, Arranger Liability, CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, New Jersey, RCRA, Second Circuit, Superfund, Waste

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 »

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Last week, a divided Eighth Circuit in United States v. Dico, Inc., No. 14-2762 (8th Cir. Dec. 10, 2015), reversed in part a district court’s grant of summary judgment against Dico, Inc., in which the lower court found that Dico arranged for disposal of hazardous substances by selling buildings contaminated with PCBs.  In reversing the district court’s determination that Dico intended to dispose of PCBs contained in the insulation of the buildings by selling the entire buildings, the Eighth Circuit also vacated a punitive damages award but allowed civil penalties to stand.  Read More »

Share | Email| Comments|  Topics: Arranger Liability, CERCLA, Cleanup, Contamination, Eighth Circuit, Enforcement, EPA, Iowa, Remediation, Superfund, Waste

In an unpublished opinion issued last week, the Appellate Division of the New Jersey Superior Court found that a local ordinance that declares as a nuisance “the escape into the open air . . . of smoke, fly ash, dust, fumes, vapors, mists, or gases as to cause injury, detriment or annoyance . . .” is neither preempted by the New Jersey Solid Waste Management Act (“SWMA”) nor unconstitutionally broad or vague.  The case, New Jersey v. Strategic Environmental Partners, LLC, No. A-4968-13T4, was decided on November 19, 2015 by Judges Messano and Simonelli. Read More »

Share | Email| Comments|  Topics: Consent Decree, Enforcement, Enforcement Action, Landfill, New Jersey, Nuisance, Odors, Preemption, Waste

Under Section 9607(a)(3) of CERCLA, a party who has arranged for the disposal of hazardous substances at a facility may, like other categories of Potentially Responsible Parties, be strictly liable for response costs.  Where the PRP has engaged in the sale of a “useful product,” even one known to be hazardous, is not liable as an arranger unless the PRP has taken “intentional steps to dispose of a hazardous substance.”   Burlington Northern and Santa Fe Ry. Co. v. U.S., 556 U.S. 599, 609-10 (2009)(“BNSF”).  Mere knowledge that there might be a discharge of hazardous substances in connection with the transport or use of the product is not sufficient to impose arranger liability.  Id. at 611.  As a result, “whether an entity is an arranger requires a fact-intensive inquiry that looks beyond the parties’ characterization of the transaction . . . and seeks to discern whether the arrangement was on Congress intended to fall within the scope of CERCLA’s strict-liability provisions.  Id. at 610.  Just such a “fact-intensive inquiry” was undertaken by the United States District Court for the Western District of Michigan last week in Georgia-Pacific Consumer Products LP v. NCR Corp., Case No. 1:11-CV-483 (W.D.MI. Sept. 26, 2013), one of a number of cases dealing with the recycling of “broke,” or scraps of carbonless copy paper coated with a PCB-containing emulsion produced by NCR from the mid-1950’s until 1971.  Read More »

Share | Email| Comments|  Topics: CERCLA, Cleanup, Contamination, Contribution, Cost Recovery, Waste, Water

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