Articles Posted in Environmental Law

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In 2007, the Site, in Trainer Borough, was owned by SCT, and used for making corrosion inhibitors, fuel additives, and oil additives. SCT kept flammable, corrosive, and combustible chemicals. Pennsylvania’s Department of Environmental Protection (PADEP) determined that “there is a release or threat of release of hazardous substances or contaminants, which presents a substantial danger to human health or the environment. The federal EPA initiated removal actions. SCT could not afford the cleanup expenses, including electricity to power pollution control and security equipment, The power company was going to shut off the Site's electricity, so PADEP assumed responsibility for the bills. Delaware County forced a tax sale. Buyers purchased the Site for $20,000; the purchase agreement stated that the Site had ongoing environmental issues and remediation. Trainer Custom Chemical took title in October 2012. The EPA and PADEP completed their removal actions in December 2012. PADEP had incurred more than $818,000 in costs. The buyers had demolished many of the Site’s structures; reclaimed salvageable materials were sold for $875,000. In 2014, PADEP received reports indicating that hazards still existed at the Site; its buildings had asbestos-containing materials. PADEP sued under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601-28, and Pennsylvania’s Hazardous Sites Cleanup Act (HSCA), to recover cleanup costs. The Third Circuit held that the Buyer is liable for environmental cleanup costs incurred at the Site both before and after the Buyer acquired it. View "Pennsylvania Department of Environmental Protection v. Trainer Custom Chemical LLC" on Justia Law

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From 1910 until 1986, Greenlease Holding Co. (“Greenlease”), a subsidiary of the Ampco-Pittsburgh Corporation (“Ampco”), owned a contaminated manufacturing site in Greenville, Pennsylvania. Trinity Industries, Inc. and its wholly-owned subsidiary, Trinity Industries Railcar Co. (collectively, “Trinity”), acquired the site from Greenlease in 1986 and continued to manufacture railcars there until 2000. An investigation by Pennsylvania into Trinity’s waste disposal activities resulted in a criminal prosecution and eventual plea-bargained consent decree which required, in relevant part, that Trinity remediate the contaminated land. That effort cost Trinity nearly $9 million. This appeal arose out of the district court’s determination that, under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), Trinity was entitled to contribution from Greenlease for remediation costs. The parties filed cross-appeals challenging a number of the district court’s rulings, including its ultimate allocation of cleanup costs. The Third Circuit ultimately affirmed the district court on several pre-trial rulings on dispositive motions, vacated the cost allocation determination and remanded for further proceedings. View "Trinity Industries Inc v. Greenlease Holding Co." on Justia Law

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The families live close to the Willow Grove Naval Air and Air Reserve Station in Horsham Township and the Naval Air Development Center in Warminster Township, which are contaminated with perfluorinated compounds (PFCs), including perfluorooctanoic acid. The families filed suits under the Pennsylvania Hazardous Sites Cleanup Act, 35 Pa. Cons. Stat. 6020.101-.1305, seeking orders requiring the Navy to pay for medical monitoring and to conduct a health assessment or health effects study that would include blood testing for themselves and others exposed to the hazardous substances released at the contaminated facilities. The district court concluded that the claims fell within the ambit of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9601- 9675, and were challenges under that Act to ongoing cleanup efforts at the facilities. The court decided that it lacked subject matter jurisdiction and dismissed the cases. The Third Circuit affirmed in part; the claim for a health assessment or health effects study is barred because it challenges ongoing cleanup efforts. The court vacated in part, finding that the medical monitoring claim is not a challenge under CERCLA and is not barred by sovereign immunity. View "Giovanni v. United States Department of Navy" on Justia Law

Posted in: Environmental Law

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From 1910-1986, Greenlease owned the Greenville Pennsylvania site and operated railcar manufacturing facilities there. Trinity acquired the site from Greenlease in 1986 and continued to manufacture railcars there until 2000. A state investigation of Trinity’s waste-disposal activities resulted in criminal prosecution and, eventually, a plea-bargained consent decree, requiring that Trinity remediate the contaminated land. That effort cost Trinity nearly $9 million. The district court held that, under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 (CERCLA), and Pennsylvania’s Hazardous Sites Cleanup Act, Trinity is entitled to contribution from Greenlease for remediation costs. After eight years of litigation, and having sorted through a century of historical records, the court allocated 62% of the total cleanup costs to Greenlease and the remainder to Trinity. The Third Circuit affirmed pre-trial rulings on dispositive motions but vacated the cost allocation determination. The agreement between Trinity and Greenlease did not shift liability away from Greenlease after a three-year contractual indemnification period expired. Trinity’s response costs were necessary and reasonable. The court’s methodology, however, failed to differentiate between different remediation activities and their varied costs, and, as applied, treated data measured in square feet as equivalent to data measured in cubic yards. View "Trinity Industries Inc v. Greenlease Holding Co" on Justia Law

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Petitioners sought to prevent the expansion of Transco’s interstate natural gas pipeline facilities, arguing that the Federal Energy Regulatory Commission (FERC) violated the Natural Gas Act (NGA), 15 U.S.C. 717–717z and environmental protection statutes, by arbitrarily approving Transco’s proposed project. Petitioners also argued that the New Jersey Department of Environmental Protection (NJDEP) violated state law by improperly issuing permits required under federal law before commencement of construction activities and by denying the petitioners’ request for an adjudicatory hearing to challenge the permits, based only on the NJDEP’s allegedly incorrect belief that the New Jersey regulations establishing the availability of such hearings were preempted by federal law. The Third Circuit concluded that the challenges to FERC’s orders lacked merit because no discharge-creating activity can commence without New Jersey independently awarding Transco with a Section 401 permit; no activities that may result in a discharge can follow as a logical result of just FERC’s issuance of the certificate. FERC adequately addressed the need for the project and its cumulative impacts, as required by the National Environmental Policy Act. The court remanded to NJDEP. NJDEP misunderstood the scope of the NGA’s assignment of jurisdiction to the federal Courts of Appeals, rendering unreasonable the sole basis for its denial of the petitioners’ request for a hearing--preemption. View "Township of Bordentown v. Federal Energy Regulatory Commission" on Justia Law

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The Natural Gas Act (NGA) requires a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission, 15 U.S.C. 717f(c)(1)(A), for construction or operation of a natural gas pipeline, which requires compliance with other legal mandates. Transco sought a Certificate for expansion of its natural-gas distribution network, then received Water Quality Certification under the Clean Water Act, (CWA) 33 U.S.C. 1341(a)(1) from the Pennsylvania Department of Environmental Protection (PADEP), subject to conditions requiring a permit under the National Pollutant Discharge Elimination System, for discharges of water during hydrostatic pipeline testing, and state permits, covering erosion and sediment disturbance and obstructions and encroachments on Pennsylvania waters. Transco challenged the conditions in the Third Circuit under the NGA and before the Pennsylvania Environmental Hearing Board. The Third Circuit concluded that it has jurisdiction; NGA provides “original and exclusive jurisdiction" to review a state agency’s “action” taken “pursuant to Federal law to issue . . . any . . . concurrence” that federal law requires for the construction of a natural-gas transportation facility. PADEP issues Water Quality Certifications “pursuant to federal law," which requires PADEP concurrence before construction can proceed. The court then rejected claims that PADEP failed to provide public notice the CWA requires and acted arbitrarily by issuing a Certification that was immediately effective despite being conditioned on obtaining additional permits; that PADEP’s decision violated the Due Process and Takings Clauses, given that the approval was necessary for Transco to begin eminent domain proceedings; and that the approval violated PADEP’s obligation to safeguard the Commonwealth’s natural resources. View "Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection" on Justia Law

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Wayne Land and Mineral Group, wanting to obtain natural gas by fracking reserves, sought a declaratory judgment that an interstate compact does not give the Delaware River Basin Commission authority to review Wayne’s proposal. The district court dismissed the case after determining that Wayne’s proposed activities constituted a “project” subject to the Commission’s oversight, according to the Compact's unambiguous terms. The Third Circuit vacated, concluding that the meaning of the word “project” is ambiguous. The court remanded the case for fact-finding on the intent of the Compact's drafters. The Compact defines “project” as “any work, service or activity which is separately planned, financed, or identified by the [C]ommission, or any separate facility undertaken or to be undertaken within a specified area, for the conservation, utilization, control, development or management of water resources which can be established and utilized independently or as an addition to an existing facility, and can be considered as a separate entity for purposes of evaluation” and requires approval for any project having a substantial effect on the water resources of the Basin. In 2009 the Commission imposed a moratorium on fracking. View "Wayne Land and Mineral Group LLC v. Delaware River Basin Commission" on Justia Law

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In 2004, after traveling from Venezuela to Paulsboro, New Jersey, Frescati’s single-hulled oil tanker, Athos, came within 900 feet of its intended berth and struck an abandoned anchor in the Delaware River, causing 264,000 gallons of crude oil to spill. The shipment was intended for CARCO. Frescati paid $143 million for the cleanup and was reimbursed $88 million by the government, under the Oil Pollution Act (OPA), 33 U.S.C. 2701. The Third Circuit held that Frescati was a third-party beneficiary of CARCO’s warranty that CARCO’s berth would be safe if the ship had a draft of 37 feet or less and that CARCO had an unspecified tort duty of care. On remand, the district court held that CARCO was liable to Frescati and the government as Frescati’s subrogee, for breach of contract because the Athos had a draft of 36′7″ and exercised good seamanship; CARCO had a duty to use sonar to locate unknown obstructions in the berth approach and to remove obstructions or warn invited ships. CARCO argued that the conduct of the Coast Guard, NOAA, and the Army Corps of Engineers misled CARCO into believing that the government was maintaining the anchorage. The court awarded Frescati $55,497,375.958 for breach of contract and negligence, plus prejudgment interest. The government, after the court’s 50% reduction, was awarded $43,994,578.66 on its subrogated breach of contract claim. The Third Circuit affirmed in favor of Frescati on the breach of contract claim but vacated as to negligence. The court affirmed the government’s judgment with respect to its subrogated breach of contract claim but, because CARCO’s equitable recoupment defense failed, remanded for recalculation of damages and prejudgment interest. View "Frescati Shipping Co., Ltd. v. Citgo Asphalt Refining Co." on Justia Law

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In 2004, after traveling from Venezuela to Paulsboro, New Jersey, Frescati’s single-hulled oil tanker, Athos, came within 900 feet of its intended berth and struck an abandoned anchor in the Delaware River, causing 264,000 gallons of crude oil to spill. The shipment was intended for CARCO. Frescati paid $143 million for the cleanup and was reimbursed $88 million by the government, under the Oil Pollution Act (OPA), 33 U.S.C. 2701. The Third Circuit held that Frescati was a third-party beneficiary of CARCO’s warranty that CARCO’s berth would be safe if the ship had a draft of 37 feet or less and that CARCO had an unspecified tort duty of care. On remand, the district court held that CARCO was liable to Frescati and the government as Frescati’s subrogee, for breach of contract because the Athos had a draft of 36′7″ and exercised good seamanship; CARCO had a duty to use sonar to locate unknown obstructions in the berth approach and to remove obstructions or warn invited ships. CARCO argued that the conduct of the Coast Guard, NOAA, and the Army Corps of Engineers misled CARCO into believing that the government was maintaining the anchorage. The court awarded Frescati $55,497,375.958 for breach of contract and negligence, plus prejudgment interest. The government, after the court’s 50% reduction, was awarded $43,994,578.66 on its subrogated breach of contract claim. The Third Circuit affirmed in favor of Frescati on the breach of contract claim but vacated as to negligence. The court affirmed the government’s judgment with respect to its subrogated breach of contract claim but, because CARCO’s equitable recoupment defense failed, remanded for recalculation of damages and prejudgment interest. View "Frescati Shipping Co., Ltd. v. Citgo Asphalt Refining Co." on Justia Law

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Tennessee Gas applied to several federal and state agencies seeking approval to build the Orion interstate pipeline project, comprising 12.9 miles of pipeline looping that would transport 135,000 dekatherms of natural gas per day via Pennsylvania. Approximately 99.5% of the new pipeline would run alongside existing pipeline. The Pennsylvania Department of Environmental Protection issued a permit approving the project. Riverkeeper argued that the court lacked jurisdiction to rule on its challenge because PADEP’s order was not final and that PADEP made an erroneous “water dependency” finding and improperly rejected a “compression” alternative to the pipeline project. The Third Circuit concluded that PADEP’s decision was final and upheld the decision on the merits because the agency’s unique interpretation of water dependency was reasonable and worthy of deference. PADEP considered and rejected the compression alternative for reasons that are supported by the record. Where an interstate pipeline project is proposed to be constructed,15 U.S.C. 717f provides “original and exclusive jurisdiction over any civil action for the review of an order or action of a . . . State administrative agency acting pursuant to Federal law to issue . . . any permit, license, concurrence, or approval . . . required under Federal law,” View "Delaware Riverkeeper Network v. Secretary, Pennsylvania Department Environmental Protection" on Justia Law