Environmental Law Posts
Environmental Law Posts, from members of Post & Schell’s Environmental Group, are intended to provide current updates and analysis of judicial opinions, emerging regulatory issues, and potential risks and liabilities in environmental law.
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Deadline Approaching for CA Property Owners to Submit HazMat Business Plans and Comply with Aboveground Storage Tank Requirements
Pursuant to Chapter 6.95 of California's Health and Safety Code and the associated regulations in Title 19, every commercial property in California that stores a hazardous material or mixture of hazardous materials in quantities equal or greater to 55 gallons, 500 pounds, or 200 cubic feet of gas must file electronically through either the state CERS portal or local Uniform Procedures Act (UPA) portal the property's Hazardous Materials Business Plan.
An Independent Environmental Quality Board for Pennsylvania
My colleague Michael Canavan and I recently examined this problem in an article for The Legal Intelligencer's Energy & Environmental Law Supplement ("Environmental Quality Board: Is It Time to Make it Truly Independent?"). There are a variety of issues that keep the EQB from delivering on its assigned power and duties, including the fact that the board has had little or no staff throughout its 50-year history placing many of its presumed duties back on the DEP.
PA Supreme Court Rules Against PADEP Mere Presence and Water-to-Water Discharge Theories
In a 5-2 decision, the Pennsylvania Supreme Court decided last week that the Pennsylvania Department of Environmental Protection cannot assess daily penalties under the Clean Streams Law on the basis that contaminants released to groundwater, or other Waters of the Commonwealth, remain in those waters or have migrated from one water to another. The Court struck down the so-called mere presence and water-to-water discharge theories, put forth by PADEP in opposition to a declaratory judgment action filed by EQT Production Company. PADEP had used these theories of liability to support, in part, an over $4.5 million civil penalty lodged against EQT for a release of hydraulic fracturing flow-back water from a lined impoundment.
Commonwealth Court Affirms PUC's Exclusive Jurisdiction over the Siting of Intrastate Pipeline Facilities
On February 20, 2018, the Commonwealth Court affirmed the dismissal of the Delaware Riverkeeper Network and others' challenge to Sunoco Pipeline, L.P's construction of the Mariner East 2 pipeline in West Goshen Township. In so doing, the Court reiterated the Pennsylvania Public Utility Commission's exclusive jurisdiction over public utility facilities, including the ME2 pipeline, and rejected the attempt of West Goshen Township to regulate the construction of the ME2 pipeline through its zoning powers.
The Commonwealth Court's Stripper Well Decision - Does it Warrant the Angst?
On March 29, 2017, the Commonwealth Court issued its decision in Snyder Brothers, Inc. v. Pennsylvania Public Utility Commission (1043 C.D. 2015). The decision appears to be a simple legal interpretation of the statutory definition of "stripper well" in a manner beneficial to Snyder Brothers and potentially generally beneficial to the unconventional natural gas industry. However, media attention and political reactions have far outstripped the Court's basic legal analysis. The decision has been cited as a harbinger of diminished impact fee revenue; as a reason to amend Act 13; and, not unexpectedly, as a justification for a new severance tax. The reactions, while not unexpected, are perhaps overstated.
PA DEP Evaluates Itself
Recently, the Pennsylvania Department of Environmental Protection (DEP) issued a press release announcing its internal review of the expedited review process for the Erosion and Sediment Control General Permit (ESCGP-2). At the same time, DEP made available an Internal Review document discussing its audit of the expedited review process.
Volkswagen Emissions Scandal Provides First Test of DOJ's Yates Memo Policy
Post & Schell's Environmental and White Collar Groups examine how the recent VW emissions scandal comes at a time when the DOJ's intention to prosecute high-level executives for corporate wrongdoing, as outlined in the Yates Memo, may face its first true test.