January 6, 2010: National Priorities for Enforcement and Compliance Assurance (FY 2011-2013) & EPA Identifies Additional Classes of Industries for Financial Assurance Obligations Under CERCLA 108(b)
On Monday (1/4), EPA announced its proposed enforcement priorities for FY 2011-2013 (75 Fed. Reg. 140). These priorities play a key role in EPA's environmental enforcement activities. EPA is accepting comments until January 19, 2010.
September 25, 2009: Chlorine Gas Shipping Rates Are Trade Secrets Says Texas Supreme Court
The Texas Supreme Court has held that a railroad’s hazardous materials’ shipping rates are trade secrets. In re Union Pac. R.R. Co., No. 08-0740, 2009 Tex. LEXIS 725 (Sept. 25, 2009). Because the plaintiff had not shown \\\"why she needs the specific rate structures\\\" to make her argument, the high court vacated the trial court’s deposition order.
September 17, 2009: Another Victory for Vinyl Chloride Producers’ Sophisticated User Defense—West Virginia
The United States District Court for the Southern District of West Virginia held in a recent decision that a supplier of vinyl chloride to make polyvinyl chloride may argue under West Virginia law that it had no duty to warn of the chemical's toxicity because the worker's employers were sophisticated users.
July 24, 2009: Township Can’t Apply Post-Filing Zoning Law to an Application in Furtherance of Pending Subdivision Plan
Developer’s change in proposed sewage treatment for planned subdivision is subject to zoning law in effect at the time the plan for the subdivision was filed, Commonwealth Court says.
July 23, 2009: “More Stringent” Does Not Mean “Broader In Scope” for RCRA Enforcement, Rhode Island Court Says
The federal District Court denied the defendant’s motion for acquittal on charges that it illegally stored mercury without a permit, even though the amount stored was less than would have been actionable under federal regulations.
July 22, 2009: Pennsylvania Supreme Court Upholds Rail-Trail Easements
Pennsylvania’s Supreme Court upheld the validity of a railroad’s easement after it was conveyed to a land conservancy.
July 2, 2009: Commonwealth Court Limits Exceptions to Rollback Taxes Under “Clean and Green” Act
Pennsylvania’s Commonwealth Court limited exceptions to the imposition of rollback taxes for split-off land under the “Clean and Green” Act, ruling in favor of York County’s Board of Assessment Appeals.
June 29, 2009: Pennsylvania DEP Releases Climate Change Report
Pennsylvania’s Department of Environmental Protection released its “Pennsylvania Climate Impact Assessment” on June 29. The 350-page document assesses the likely effects of climate change on everything in Pennsylvania from weather to environmental effects to human health, insurance and even tourism.
June 26, 2009: House Passes Waxman-Markey 219-212
By a close vote of 219-212, the U.S. House of Representatives passes the American Clean Energy and Security Act (ACES), also known by the name of its main sponsors, the Waxman-Markey Bill. It now goes to the Senate. The ACES Act is Congress’s first major effort to address regulation of greenhouse gasses and global warming.
May 4, 2009: Supreme Court addresses arranger liability, apportionment under CERCLA
The Supreme Court limited arranger liability and expanded a district court’s ability to apportion damages under CERCLA in Burlington N. & Santa Fe Ry. v. United States, 129 S. Ct. 1870 (May 4, 2009).
April 13, 2009: EPA reaches largest settlement ever under audit policy
The EPA announced that it reached its largest settlement ever under its audit policy with Invista, a subsidiary of privately owned Koch Industries, Inc. Invista will pay a $1.7 million penalty and spend up to $500 million to correct 680 violations at 12 facilities it acquired from DuPont in 2004.
March 16, 2009: New Jersey General Assembly and Senate pass Site Remediation Reform Act, send to Governor for signature
Both houses of the New Jersey legislature passed the “Site Remediation Reform Act,” which would establish licensing requirements for “site remediation professionals” and require that most remedial actions be performed only under the direction of a licensed “site remediation professional.”
March 6, 2009: Obama’s 2010 Budget Plan Assumes Reinstatement Superfund Tax
The new Administration’s proposed budget for 2010 assumes the Superfund tax would be reinstated. The proposed 2010 budget outline anticipates $17.2 billion in revenues to be generated from 2011 through 2019 by reinstating taxes CERCLA imposed on oil and chemical companies.
February 16, 2009: Pennsylvania Law Weekly Reports on partner Larry Silver’s Pennsylvania Supreme Court case regarding the 2000 Immunity Act.
The Pennsylvania Supreme Court will hear arguments for the first time regarding the interpretation of the General Assembly's 2000 Immunity Act.
January 26, 2009: Second Regional Greenhouse Gas Initiative (RGGI) CO2 Auction Held; Found to be Fair
Auction results in competitive market prices, report says.
January 1, 2009: Pennsylvania’s Right-to-Know Law, 65 P.S. §67.101, et seq., In Full Effect.
Pennsylvania’s Right-to-Know Law now presumes that all records are public records—shifting burden to Agencies to show why document should not be produced.
December 29, 2008: EPA Revises Definition of Solid Waste With Hopes of Making Recycling Easier and More Cost-Efficient
EPA’s revised definition of solid waste, effective December 29, 2008, aims to streamline recycling and will affect approximately 5,600 facilities nationwide.
December 18, 2008: Federal Judge Orders New Trial for Failure to Disclose Payments to Fact Witness
Paid witness’s response of “No sir, I am currently retired” to question of “Are you currently employed?” on direct examination was a misrepresentation requiring a new trial, court holds.
November 20, 2008: Winds in Washington: WA Supreme Court Upholds Law Allowing Governor to Pre-empt Local Land-Use Decisions for Wind Farm
Washington’s Energy Facilities Site Locations Act allows Governor to approve site location of facilities that use wind power exclusively without authorization from the county in which the wind turbines will be placed.
September 19, 2008: FRE 502 Signed into law; E-Discovery will change
The new Rule is designed to make discovery, especially e-discovery, cheaper by limiting waiver of the attorney-client privilege and the work product doctrine in both federal and state courts.
July 28, 2008: Third Circuit affirms CERCLA judgment after trial won by Langsam Stevens attorneys
The United States Court of Appeals for the Third Circuit affirmed the judgment in a CERCLA (Superfund) contribution case in favor of a group of businesses represented by Langsam Stevens attorneys.
March 8, 2007: USEPA Proposes Clarifying The “Reasonable Possibility” Recordkeeping And Reporting Standard
The USEPA proposed revisions to the regulations that govern the major new source review (“NSR”) programs required by parts C and D of title I of the Clean Air Act (42 U.S.C §§ 7401 to 7671q). Entities in all industry groups as well as States and local permitting authorities are affected by this proposed revision.
February 20, 2007: PA Supreme Court Affirms Deference to DEP; Finds Used Tires Are Waste
In Tire Jockey Services, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Protection, the Pennsylvania Supreme Court ruled that DEP’s reasonable interpretation of its regulations must be given deference by the Courts. The Court further held that used tires being stored and processed at a Bucks County facility prior to reuse were waste, and that the facility required a processing permit.
February 8, 2007: NJ Proposes To Require Notification to Health Agencies of Pending Remedial Actions
The New Jersey State Assembly received and referred to the Assembly Environment and Solid Waste Committee Senate bill S-2199, that any person, including the NJDEP, provide to the county health department and certified local health agency a written notification of remedial actions and describe the activities that took place at the contaminated site.
January 20, 2007: Supreme Court Grants CERT to Determine Interplay between Endangered Species Act and the Clean Water Act
On January 5, 2007, the Supreme Court granted a writ of certiorari to the Ninth Circuit U.S. Court of Appeals to hear an important case regarding the interplay between the Endangered Species Act (ESA) and the Clean Water Act (CWA). In 2002, the EPA delegated its authority to administer the National Pollution Discharge Elimination System…
January 16, 2007: EPA Begins Test & Clean Program Near Trade Center Towers Collapse Area
Today marked the opening of the U.S. Environmental Protection Agency’s registration period for its Lower Manhattan Test and Clean Program. This program has been called the “final phase” in EPA’s response to the terrorist attacks of September 11, 2001. Though widely criticized for being under-funded…
December 13, 2006: Court (E.D. Pa.) Says No Knowledge of Ultimate Disposal Required for “Arranger” Liability under CERCLA §107(a)(3)
The U.S. District Court for the Eastern District of PA held that a waste disposal company that subcontracted hazardous substance disposal faces “arranger” liability under CERCLA §107(a)(3) even if it believed the subcontractor was disposing of the material elsewhere.
December 11, 2006: Voluntary Climate Change Emissions Banking Forms Available Soon
December 11, 2006, marked the close of the comment period on the U.S. Department of Energy’s proposed revised forms for voluntary reporting of greenhouse gas emissions. Use of the forms enables large and small companies to “bank” any subsequent reductions in the event…
December 2006 update: New Mexico Court of Appeals Affirms Convictions Resulting From Attorney’s Investigation and Indictments as a Prosecutor
On October 30, 2006, the New Mexico Court of Appeals affirmed the felony convictions of a defendant who Langsam Stevens & Silver attorney, Thomas Storrer investigated and indicted as his first case as an assistant district attorney with the 12th Judicial District Attorney’s Office in New Mexico.
November 30, 2006: Supreme Court Hears Argument on Global Warming
The U.S. Supreme Court heard oral arguments on a case brought by the attorneys general of several states against the Environmental Protection Agency seeking to compel regulation of carbon dioxide emissions…
November 17, 2006: New Jersey Department of Environmental Protection Amended the Oversight Rule.
New amendments to the Oversight Rule which give the NJDEP more power to assess penalties and bring enforcement actions, recently became effective. The new amendments are intended to implement the requirements of the Grace Period Law and to make NJDEP more effective in overseeing site remediations.
November 13, 2006: PA Supreme Court Rejects Non-Compliance with Certificate of Merit Requirements in Professional Negligence Actions
The Pennsylvania Supreme Court considered equitable exceptions to the certificate of merit rule governing professional liability actions in its first ruling on the procedural rule Pa.R.C.P. 1042.1 -1042.8. This decision affirms the Court’s commitment
November 1, 2006: EPA’s ‘All Appropriate Inquiry Rule’ Takes Effect
The new Environmental Protection Agency’s All Appropriate Inquiry (“AAI”) Rule was promulgated under the authority of the Brownfields Revitalization and Environmental Restoration Act of 2001. The Rule establishes new standards for conducting environmental due diligence when...
November 2006: Settlement Agreements Between Private Parties Can Provide Contribution Protection Under CERCLA §113(f)
The Eastern District Court of MO agreed with the Eastern District of PA that settlement agreements between private parties provide contribution protection under CERCLA. In U.S. v. Mallinckrodt, E.D. Mo., No. 4:02CV01488, 11/15/06, the district court referred to Lyncott Corp. v. Chemical Waste Management Inc., 690 F. Supp. 1409 (E.D. Pa. 1988) when holding that CERCLA contribution protection under 42 U.S.C. §9613(f)(2) applies to settlements agreements between private parties. The issue in Mallinckrodt arose when a defendant seeking contribution in a CERCLA cost recovery action brought filed a motion for court approval…
October 27, 2006: Publicly Owned Treatment Works Face New Permitting Requirements for Wet Weather Overflows
The USEPA announced recently that it will adopt a policy requiring that Publicly Owned Treatment Works (POTWs) which anticipate “peak wet weather” overflows must obtain prior approval at the time of permitting or re-permitting the facility.
October 12, 2006: Third Circuit to Consider Whether the Supreme Court Established a Jurisdictional Threshold for Superfund Contribution Actions.
The District Court for the Western District of Pennsylvania certified its July 13, 2006 ruling in Beazer East Inc. v. Mead Corp. for interlocutory appeal to the Third Circuit on the question of whether the Supreme Court established a jurisdictional threshold for superfund contribution actions in the Cooper v. Availl decision.
October 2006: NJDEP Update on NRD and Loss of Use
In August 2006, the court dismissed NJDEP’s NRD loss of use claim in the NJDEP, et al. v. ExxonMobil Corp., 2006 WL1477161 (Law Div. 2006).
September 28, 2006: Pennsylvania’s Landfill Tipping Fee Extension and Municipal Recycling Grant Requirements Approved by Senate Committee
The Pennsylvania Senate’s Environmental Resources and Energy Committee approved amendments to the Pennsylvania’s Municipal Waste Planning, Recycling and Waste Reduction Act of 1988.
September 8, 2006: Aviall’s CERCLA §107 cost recovery, implied contribution and federal common law
On remand from the United States Supreme Court, the District Court of the Northern District of Texas considered whether Aviall had waived its §107 claim and, if not waived, whether a potentially responsible party could seek cost recovery or contribution under §107 or common law.
September 8, 2006: Persons who conduct a voluntary Clean-up have no Implied right of Contribution under CERCLA §107, Third Ciruit Court of Appeals Rules
In DuPont v. U.S., No. 04-2096, slip op. (3rd. Cir. Aug. 29, 2006) the Third Circuit Court of Appeals held that CERCLA §107 has no implied right of contribution.
September 5, 2006: NJDEP Requiring Hazardous Waste Generators Must Use New Federal Manifest
The New Jersey Department of Environmental Protection will require Hazardous Waste Generators to use new Federal Manifest forms.
August 16, 2006: New Jersey DEP and BPU Announce Regional Effort to Combat Global Warming
New Jersey Department of Environmental Commissioner Lisa P. Jackson and New Jersey Board of Public Utilities President Jeanne M. Fox announced that New Jersey and six other states have released a set of model regulations aimed at reducing carbon dioxide (CO2) emissions from power plants.
August 14, 2006: Pennsylvania DEP Accepting Applications for Alternative Fuels Incentive Grants
The Department of Environmental Protection announced that it is now accepting project applications for the Alternative Fuels Incentive Grant (AFIG) Program, which finances the production and use of clean-burning fuels in Pennsylvania.
August 11, 2006: EPA issues guidelines on the federal underground storage tank program.
The PA Environmental Protection Agency has begun the process of issuing the first major changes to the federal underground storage tank program in years, based on the mandates contained in the Energy Policy Act of 2005.
August 9, 2006: Companies to Pay EPA $19 Million for Cleanup of New Jersey Sites
The Department of Justice and the U.S. Environmental Protection Agency (EPA) announced that they have reached separate agreements with NCH Corporation (NCH) and FMC Corporation (FMC) to resolve claims against them relating to the costs of cleanup at the Higgins Farm and Higgins Disposal Superfund sites in Somerset County, N.J.
July 31, 2006: Delaware law broadens DNREC’s ability to recover costs of cleanup
Legislation signed into law on July 6, 2006 by Delaware’s Governor Minner allows state regulators to sue for cost recovery in any court of competent jurisdiction, without holding an administrative hearing to decide issues challenging the Delaware Department of Natural Resources & Environmental Control’s (“DNREC’s”) billing.
July 31, 2006: Environmental Assessors Potentially Liable to Future Property Owners from Phase I Environmental Audit
The District Court for the District of New Jersey the Court refused to grant an environmental assessors summary judgment motion seeking to dismiss an action by fifteen homeowners who claimed they were damaged when they bought property that, unbeknownst to them contained lead, arsenic and DDT in the recent case of Bonnieview Homeowners Ass’n, LLC v. Woodmont Builders, LLC.
July 31, 2006: Third Circuit overrules determination that 2500-foot presumption for the source of contamination from underground storage tank leaks was rebutted by expert evidence.
The Court of Appeals for the Third Circuit reversed the Western District of Pennsylvania’s grant of summary judgment for Chico, in Cario Partnership v. Chico Enterprises Inc.
July 24, 2006 : New Jersey provides protection from Spill Act contribution suits for settling parties
Two new provisions of New Jersey’s Spill Compensation and Control Act (the “Spill Act”), effective April 2006, may foster earlier settlement of liability with the State.
July 7, 2006: Court allows CERCLA § 113(f) contribution claim despite lack of underlying enforcement action.
According to the U.S. District Court for the Western District of Pennsylvania, the Supreme Court’s holding in Cooper Industries v. Aviall Services, Inc., 543 U.S. 157 (2004) is not a jurisdictional requirement.