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.
For the first time in eight years, the ASTM E1527-13 Standard Practice on Phase I Environmental Site Assessments (“Standard”) is being updated. Although it has been eight years, the updated Standard is not expected to significantly change the Phase I Environmental Site Assessment (“ESA”) process. For example, consultants will remain focused on evaluating whether environmental conditions on properties should be characterized as recognized environmental conditions (“RECs”), and the scope of the Phase I ESA process generally will remain the same. Nonetheless, the new Standard will include several important changes, including some that will affect what is, and what is not, a REC.
Environmental Due Diligence and COVID-19: Ensuring the Safety of Occupants and the Success of Real Estate Transactions
It’s no exaggeration to say that the COVID-19 pandemic has left no aspect of the economy untouched. This includes the transactional world of buying and selling properties and the related environmental due diligence process, where we see two emerging trends.
Among utility companies nationwide, there is justifiable alarm over the Montana United States District Court’s April 15, 2020, ruling vacating Nationwide Permit 12 (NWP12). NWP12 provides an expedited process for obtaining federal approval to conduct certain linear utility projects that impact wetlands. These projects include oil and gas pipelines, electrical lines, and phone, internet, and TV cable lines.
As the COVID-19 crisis continues, the ways in which businesses engage in everyday activities is evolving at a pace more rapid than most of us have ever seen in our lives, and hopefully will ever see again. Among these changes is the way businesses address environmental compliance obligations. Two of the more important questions regarding environmental compliance are: (1) Can a business continue environmental investigation and remediation field work?; (2) Can a business cease or reduce its performance of operational compliance obligations?
In these trying times, offering our clients the support they need is of the utmost importance to the Environmental Group at Post & Schell. The past few weeks have left us all navigating uncharted waters, taking each day as it comes, and facing and addressing new and previously unheard of challenges.
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.
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.
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.
Recent Legionella Outbreaks Illustrate Risks for Health Care, Hospitality, and Commercial Industries (Even at New Facilities)
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.
Recent Case Offers Five Lessons for Corporate Managers on Avoiding Personal Liability for Environmental Violations
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.
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.
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.