Here is a selected sample of the kind of environmental coverage subscribers receive twice monthly. Every major development -- and many minor ones -- are reported here in one place. (This list is for sample purposes; it is not the most recent cases.) Table of Contents from Sept. 20, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) (To search, use FIND.) (Subscribers received unbiased summaries of these cases and full texts of many of the rulings, including not-for-publication decisions, within days of being filed. Since most of these filings occurred within two weeks of the date of publication, subscribers found conveniently in one place the latest important, state-related environmental law developments.) HOME Keystone Landfill Judge approves consent decree with eight generator defendants Agree to pay up to $7.4 million for landfill cleanup; three settlement with 586 parties Final approval for consent decree with 376 third and four parties They will provide $4.25 million, settling with EPA and DEP Judge approves de micromis settlements with 195 parties Based on volume of substances sent to Keystone Sanitation Landfill Contempt/FOIA 3rd Cir. affirms dismissal of case alleging failure to respond Citizens contend DEP failed to respond to neighboring contamination Seeking rehearing in banc, petitioners claim reversible error Argue constitutional claim was dismissed for lack of subject matter jurisdiction CERCLA/Settlement U.S. and PA file consent decree with 35 parties in Malvern TCE EPA expects total cleanup cost will be over $18 million Clean Air 3rd Cir. orders EPA and Texaco to address Clean Air Act rules EPA's response describes how agency implements New Source Performance Standards Bonds Board says estoppel and finality bar appellant's issues in bond appeal But allows appellant to present experts and exhibits relevant to other issues Water Replacement EHB bars water replacement issue for failure to list in notice Finds water loss issue in Stoystown Borough was first raised in pre-hearing memorandum Table of Contents from September 7, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) Pollution Exclusion Harleysville insists pollution exclusion is not restricted to CERCLA Tells Supreme Court that exclusion does not relate only to releases into natural environment Underground Tanks Automatic $1,500 per day Storage Tank penalty is arbitrary, EHB rules Says DEP must consider facts surrounding a violation, not just underlying order Intervenor Intervenor is not limited to original parties' arguments, board says Declines to follow ruling that intervening citizen group is limited as matter of law Of Interest in Circuit Judge approves $7.1-million accord with 20 defendants in NJ site Part of $27.1-million settlement; separate accord allows funding subject to future allocation Intervene EHB bars intervention by authority; sees circumvention of time limit Petition was filed more than a year after order was issued to township and authority Show Cause Board dismisses appeal for failure to respond Finds Recreation Realty has 'no serious intention' of prosecuting its appeal Landfill Borough's objections to Grand Central expansion require hearing EHB denies summary judgment for claims of noise, odors, traffic Fourth Party Judge orders payment of fourth party fees as condition of approval Consent decree for certain fourth-party defendants depends on payment Table of Contents from August 23,1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) Pollution Exclusion Madison seeks reargument of pollution exclusion ruling Tells PA Supreme Court that exclusion applies only to environmental claims CERCLA/Settlement EPA and DEP file CERCLA consent decree with 40 parties 81 other parties agreed to provide $3 million for cleanup of Jack's Creek/Sitkin site Solid Waste Board grants Atlantic Coast supersedeas with conditions Supersedeas will automatically terminate if facility exceeds 5,000-ton permit limit Post-Mining Land use issue is moot but effect of watercourse remains, EHB says Question of material fact as to whether watercourse exists on neighboring property Attorneys NY attorney is allowed to represent well operator, ALJ says Efficiency, economic hardship and lack of prejudice allow representation before EHB Mining ALJ denies supersedeas because mining cannot begin any time soon DEP inspector says operation will require preparation such as upgrading haul roads Water Replacement In remanded case, EHB orders details of Act 54 water replacement Cmwlth Ct said DEP is required to seek how contaminated water will be replaced Waste Flow 3rd Cir. dismisses appeal of validity of NJ waste contracts Stipulated dismissal of two counties' dispute over result of Atlantic Coast II Waste Flow NJ Supreme Court will decide consequence of Atlantic Coast II Appeal says ruling left NJ county waste facilities without recourse to funding Table of Contents from August 9, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) Known Loss Superior Court denies Rohm & Haas rehearing on 'known loss' Sought reargument of first impression decision that vacated $21-million coverage award Storage Tank/Presumption Superior Court says present owner may sue prior owner under STSPA But finds statutory presumption of liability as in Centrolanza v. Lehigh does not apply Non-Building Waiver Cmwlth Ct says township must accept DEP sewage planning waiver DEP's Form B Non-Building Waiver for subdivision comes with stipulation not to develop Costs Judge finds plaintiffs' good faith is insufficient to avoid costs Approves $154,129 in court and defense costs in 13-year Paoli Railroad Yard PCB case Navigable Waterway Superior Court says public has right to fish on portion of river Fishing club argued that portion of river through its property is not navigable Solid Waste EHB declines to stay permit proceedings based on its prior ruling Earlier decision found that DEP appropriately suspended landfill's solid waste permit Asbestos and PCBs Defendants oppose PA's battle to restore certain exhibits PA seeks cost of asbestos and PCB contamination following fire in state office building Odors EHB finds orders reasonable given malodor and litter problems Dismisses waste composting facility's appeal of orders requiring corrective action Pollution Exclusion Supreme Court declares pollution exclusion bars coverage claim Injury claim arising out of release of irritating fumes is not covered, court holds Table of Contents from July 20, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) Known Loss Insurers say amici offer no basis for reargument of ruling Amici support Rohm and Haas Co.'s argument that knowledge of liability is standard CERCLA/State Claims 3rd Cir. says state court must decide if CERCLA preempts state claim Finds state court must make determination after district court lost subject matter jurisdiction HSCA Fact issue bars dismissal of HSCA claim over landfill, judge says Plaintiff seek recovery from township for cleanup of former municipal landfill Storage Tanks EHB excuses couple from $163,000 bond for financial hardship Excused from bond or prepaying Storage Tank and Spill Act and Clean Streams penalty Subsidence Bond EHB says DEP abuses discretion by requiring same bond for all Orders department to analyze situation before determining amount of bond NPDES Board grants motion to compel DEP to answer interrogatories Interrogatories deal with authority for determination in issuing permit Waste Flow NJ panel transfers case challenging fee imposed on haulers Fee is a consequence of Third Circuit opinion in Atlantic Coast Demolition &Recycling DAM EHB orders hearing on need for downstream landowner's consent They contend Dam Safety Act requires consent for access to their property Table of Contents from July 7, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) (To search, use FIND.) Known Loss Insurers say knowledge of contamination is 'known loss' standard Opposes Rohm and Haas appeal of rejection of 'certain liability' standard Known Loss 13 major companies say panel misplaced 'known loss' focus Opinion focused on awareness of contamination instead of liability Known Loss Council says decision allows denial of coverage claims Pennsylvania Environmental Council sees harmful impact on environment Known Loss Lloyd's asks court to strike amici curiae reargument petitions Alleges prejudice because petitions address more than reargument issue CERCLA/Non-Settlors In reply, EPA insists CERCLA authorizes orders for nonsettlors Wants to require non-settling parties to undertake joint responsibility for cleanup Attorney's Fees PA Supreme Court will hear DEP's appeal of ruling on fees Commonwealth Court held mine operator may recover part of $572,500 in legal fees Mine Subsidence EHB finds Act does not authorize railroad's reimbursement Mine Subsidence Act does not impose duty on mining companies to utilities Additional Relief Board denies additional relief, cites lack of irreparable harm Also says relief would have no meaningful effect because permittee finished work Counsel EHB dismisses appeal for failure to obtain counsel Board granted 30-day extension to obtain counsel in bond forfeiture appeal Table of Contents from June 21, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) (To search, use FIND.) Known Loss Rohm & Haas says panel sets new rules for fraud and known loss Seeks reargument en banc in decision that vacated $21-million award in coverage case Action Against DEP Judge says 11th Amendment bars claims against DEP Plaintiffs contend imposition of $26,000 in civil penalties violated their civil rights CERCLA/Non-Settlors 3rd Cir. will hear argument July 26 on holding nonsettlors liable Lower court barred recovery by U.S. where EPA obtained relief in settlement Sewage EHB says failure to appeal sewage plan bars citizens challenge Says DEP does not intend to take any additional action on 1993 plan Of Interest in Circuit Industrial group opposes NJ ecology-based remediation Insists NJDEP lacks authority to impose natural resource damage provisions Storage Tanks EHB affirms DEP invalidation of tank handling certification Finds two certifications were issued to same entity with different names Correction Summary failed to mention waste permit issues remanded to DEP Alternative Liability In reply, NJ Turnpike Authority cites connection with generators Tells 3rd Cir. that lower court overlooks compelling direct and circumstantial evidence Bond/Credibility EHB says credibility on water contamination requires hearing DEP found bond release requirements were met; property owner challenged release Table of Contents from June 7, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) CECLA/Alternative Liability PPG Industries says alternative liability does not apply to claim Responds to NJ Turnpike Authority's appeal in 3rd Circuit in CERCLA case CECLA/Alternative Liability Occidental Chemical says lack of damages bars theory Alternative liability is not needed to remediate any alleged harm, appellee argues CECLA/Alternative Liability AlliedSignal says turnpike authority is not victim contamination at seven sites, it asserts RI/FS 3rd Cir. orders RI/FS costs allocated for defense and indemnity Government-mandated costs should be allocated between defense and indemnity costs Chapter 11 3rd Cir. says environmental fine is not entitled to priority Fine on debtor for post-petition SWMA conduct is not administrative expense Existing Pollution EHB allows transfer station on part of contaminated site Finds Waste Management's use will not adversely impact existing pollution Effluent Limits Board affirms DEP finding of failure to meet effluent limits Says mining water bypassed treatment plant; failure to use neutralizing agent cited Counsel/Bond EHB dismisses bond appeal for failure to obtain counsel Says mining company ignored rule to show cause to secure legal representation Construction /Demolition Waste Cmwlth Ct says construction/demolition waste is regulated Definition of minicipal waste is substantially same as term in SWMA Table of Contents from May 24, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) CERCLA /Settlements EPA tells 3rd Cir. nonsettling parties may be held liable for remedy Lower court barred recovery where EPA obtained complete relief in settlement CERCLA /Settlements Occidental Chemical says §113 bars actions against nonsettors Criticizes EPA practice of issuing orders to nonsettlors despite complete relief Failure to Disclose Superior Court vacates $21-million award to Rohm & Haas Restores jury's verdict for insurers for failure to disclose; JNOV is reversed CERCLA/Alternative Liability 3rd Cir. is asked to consider alternative liability for claims NJ Turnpike Authority says fairness demands theory be applied to generator defendants
CERCLA/Statute of Limitations
Judge allows Chevron's counterclaims in terminal case
Cites evidence that cleanup activity was not complete until
1996
Administrative Finality Cmwlth Ct insists administrative finality allows no exceptions Bars arguments that should have been raised for prior surface mining permits CERCLA Third-parties in Keystone Landfill case ask for simultaneous decrees Eight original generator defendants contend their rights will be compromised Waste Flow NJ Supreme Court applies retroactivity to waste flow cases in pipeline Penalties for out-of-state shipment of waste must be rescinded under Atlantic Coast CERCLA/Jurisdiction EPA tells 3rd Cir. that appeal is moot because of incineration But citizens' group says further EPA remedies may also pose a nuisance Penalties EHB affirms $334,500 penalty for landfill, reduced from $352,000 Says DEP failed to prove that penalties for leachate system, gas levels were reasonable Table of Contents from May 10, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) Water Supply Cmwlth Ct holds permit must describe replacement of water supply Act 54 requires more than general statement on replacing contaminated water, panel says Air Pollution Cmwlth Ct affirms Stage II vapor recovery penalty assessment But reduces amount to $71,444 because DEP based 10 percent on size of three stations Burden of Proof EHB says DEP cannot shift burden if site ownership is not clear DEP argued that Conrail's ownership was established to some degree Attorney Client Privilege Board rules audit is privileged because counsel was assisted Environmental audit was by agent who provided technical assistance to counsel Joint Defense Privilege EHB rebuffs Conrail's joint defense privilege, cites timing of sharing Agreement was not signed prior to sharing of information, board finds Storm Water Management Act Supreme Court says Act does not allow attorneys' fees as expense Even though Act provides for award of 'expense of such proceedings' against violator On-Site Sewage Supreme Court says broker is not liable for on-site sewage facts Agent's statement about condition of septic system was innocently made, court finds Administrative Finality EHB dismisses citzens' mining permit appeal for failure to respond Administrative finality also results in dismissal of some issues Table of Contents from April 19, 1999 issue of Pennsylvania Journal of Environmental Litigation (Table of Contents of earlier issues follow.) Landfill/FAA Judge finds FAA law prohibiting landfills near airport unconstitutional Statute applies only to two landfills near small Pennsylvania airport; he overturns law Settlement Judge finds $1.45-million settlement, 16 percent of costs, is fair Rejects objection of Penn Central successor to settlement of Paoli Superfund site case Stage II Vapor Control EHB cites failure to prepay $325,265 air pollution penalty for appeal Denies supersedeas because of failure to produce financial statements Statute of Limitations Judge finds employees exposure claims are time-barred Plaintiffs sought class action for alleged exposure to hazardous substances in Phila. Spill Act EHB bars supersedeas for failure to plead facts in alleged tank releases Petitioners objections to civil penalty are not proper subject of supersedeas, it says Waste Flow NJDEP argues case for penalties for out-of-state shipment Tells NJ Supreme Court that issue is not moot despite Atlantic Coast Demolition ruling Waste Flow Appeals court rules NJ is not liable for waste flow results Rejects liability for damages from breach of contract after Atlantic Coast Demolition Table of contents from April 5, 1999 issue of Pennsylvania Journal of Environmental Litigation Clean Streams Law EHB assesses $3.2-million penalty against Westinghouse Cmwlth Ct found clock starts with DEP's discovery of soil contamination at plant Pollution Exclusion Lloyd's says adoption of 'regulatory estoppel' violates due process Amicus insists 'pollution exclusion' ruling using such estoppel would be flawed Penalty/Evidence Cmwlth Ct faults exclusion of evidence of DEP's assurances Says Section 605 sets permittee's mental state as factor in any penalty assessment EPA Permits EPA tells 3rd Cir. that injection conditions prevent migration Fluid injected into ground will not be forced into drinking water, agency says Supersedeas/Waste EHB denies temporary supersedeas for Atlantic Coast permit Denial came on March 18, days before March 23 hearing on supersedeas petition Attorney's Fees EHB says fees for non-profit group are not warranted in moot appeal Mining permit appeal was found moot while challenge to standing was pending Necessary Implication Cmwlth Ct says doctrine does not apply to settlement agreement Finds no evidencec mining will produce disturbing noise at various sites Air Pollution Board dismisses air pollution appeal for failure to post bond Says appellant failed to demonstrate it is unable to prepay penalty Solid Waste EHB says inability to perform landfill work is no defense Physical and financial inability do not block bond forfeiture, board declares Following is Table of Contents from March 15,1999 issue Pennsylvania Journal of Environmental Litigation CERCLA/Innocent Owner Judge rejects common sense meaning of § 107 innocent owner Says Third Circuit requires strict test for maintaining CERCLA defense Underground Tanks Previous settlement bars liability claims over tanks, judge says Finds it is too late to revisit liability for contamination at gasoline station Interrogatories EHB says appellants waived right to object to interrogatories They failed to respond within 30 days at time settlement discussions were taking place RCRA/Transfer Judge grants EPA motion to transfer case to West Virginia Wheeling-Pittsburgh challenged EPA in E.D. PA for closure order in WVa CERCLA Judge allows environmental cross-claim that was filed as counterclaim Finds Beazer East cross-claim is transactionally related to claims in original complaint Spill Act Defendant has not yet overcome presumption of liability, judge rules Sees evidence suggesting tenant dumped diesel fuel on adjacent property CERCLA U.S. appeals ruling that nonsettlor need not pay because of settlement Court found EPA received complete relief for Centre County Superfund site in prior settlement Deceased EHB dismisses appeal that has deceased person as appellant PA law does not allow dead person to be a party to such a claim (Subscribers received unbiased summaries of these cases and full texts of many of the rulings, including not-for-publication decisions, within days of being filed. Since most of these filings occurred within the previous two weeks of publication, subscribers found in one place all the most important, current environmental law developments in the state.)