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Environmental Law Posts

Deadline Approaching for CA Property Owners to Submit HazMat Business Plans and Comply with Aboveground Storage Tank Requirements >
February 5, 2020
By: Paul R. McIntyre and Mica T. Iddings
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.
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Post & Schell Successfully Defends Petition to Recover Attorney and Expert Witness Fees >
February 3, 2020
The Pennsylvania Environmental Hearing Board recently ruled that a Post & Schell client, Sunoco Pipeline, L.P., was not liable for attorney and expert witness fees incurred by landowners in connection with an appeal of two environmental permits issued by the Pennsylvania Department of Environmental Protection.
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Use Caution When Giving Legal Advice in the Presence of Consultants - Part 2 >
July 31, 2019
By: Terry R. Bossert
Last year, we reported on a Pennsylvania Superior Court decision that addressed the possible waiver of the attorney/client and attorney/work product privileges when the work product is shared with an outside consultant. In Bousamra v. Excela Health, the Superior Court held that when an email from outside counsel was forwarded to a third-party public relations consultant, both the attorney/client privilege and the attorney/work product privilege were waived. That decision was appealed to the Pennsylvania Supreme Court and, in a recently announced decision, the Court has addressed both of those issues.
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Recent Legionella Outbreaks Illustrate Risks for Health Care, Hospitality, and Commercial Industries (Even at New Facilities) >
June 25, 2019
By: Paul M. Schmidt
Despite increasingly onerous regulatory obligations placed on health care, hospitality, and commercial facilities, reported incidents of Legionnaires' disease remain on the rise. These include recent reported outbreaks in Ohio, New Jersey, New York, California, Texas, and Nevada - the majority of which have been attributed to cooling towers, potable water systems, or swimming pools/hot tubs in hospitals, hotels, or other large facilities.
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Recent Case Offers Five Lessons for Corporate Managers on Avoiding Personal Liability for Environmental Violations >
February 25, 2019
By: Paul M. Schmidt
Few topics cause as much discomfort for corporate managers as the question of whether they can be held personally liable for environmental violations committed by the companies they manage. When a manager commits an affirmative, unlawful act, the case is fairly clear. But what about when the violation results from a manager's failure to act? Recently, in Schlafke v. DEP, the Pennsylvania Environmental Hearing Board addressed just that question, providing five lessons for managers.
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An Independent Environmental Quality Board for Pennsylvania >
August 3, 2018
By: Terry R. Bossert
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.
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Ensuring That Your Voluntary Cleanup Gets You What You Need - Overcoming Bars to Contemplated Uses >
July 12, 2018
By: Paul M. Schmidt
As the desirability of mixed use development continues to increase, so too will the need to ensure that remediation will allow all intended uses. On that point, one of our manufacturing clients recently found itself in a surprising dilemma when it decided to modify the planned use of the property. The client decided to not only acquire a bigger facility to accommodate increased operations, but also to engage in side-activities that it hoped would be lucrative, fun, and beneficial to the community.
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Post & Schell Advises National Real Estate Client on Cleanup, Redevelopment, and Sale of Historic Former Industrial Complex in Northern New Jersey >
June 26, 2018
Environmental Practice Group Principal Paul M. Schmidt recently assisted a client with the cleanup, redevelopment, and sale of a historic, 10-acre former industrial complex in northern New Jersey that began operations in the 19th Century.  Mr. Schmidt counseled the client on the remediation of two dozen areas of contamination, and on the demolition, reuse, and disposal of several large contaminated buildings.
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Use Caution When Giving Legal Advice in the Presence of Consultants >
April 10, 2018
By: Terry R. Bossert
The Pennsylvania Supreme Court is about to address the question of whether sharing legal advice with outside consultants engaged by the client results in a waiver of the attorney-client privilege or attorney work product privilege. The Superior Court has already partially addressed this question. Last summer in Bousamra v. Excela Health, 167 A.3rd 728 (Pa. Super. 2017), the Superior Court ruled that both the attorney-client privilege and the attorney work-product privilege were waived when an email from outside counsel was shared with an outside consultant. The Supreme Court has granted allocator (Bousamra v. Excela Health, 5 WAP 2018) and the initial briefs in the Supreme Court are due this week.
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PA Supreme Court Rules Against PADEP “Mere Presence” and “Water-to-Water” Discharge Theories >
April 2, 2018
By: Terry R. Bossert and Aaron S. Mapes
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.
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EPA's Latest Attempt to Supercharge Superfund Cleanups >
March 15, 2018
By: Michael P. Canavan
Scott Pruitt, the fourteenth Administrator of the United States Environmental Protection Agency (EPA), recently appeared on The New York Times' The Daily podcast, where he outlined his vision for the EPA, discussed his view of its societal role, and answered questions about specific goals he sought to accomplish during his time at the helm of the EPA.
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Testing Uncertainty: Beware the False Positive >
March 15, 2018
By: Paul R. McIntyre
We were reminded recently of the inherent limitations on the accuracy of asbestos sampling. The lessons learned (again) were: (1) that the appropriate scope of pre-acquisition environmental diligence should be carefully considered, and (2) that laboratory analysis should not automatically be accepted as accurate.
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