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.
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.
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.
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…
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.
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 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.
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.
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.
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).
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
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.
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.
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…
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.
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.
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.
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 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.
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.