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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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Conducting Environmental Compliance Activities During the COVID-19 Crisis

Environmental Law Posts

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?

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Deadline Approaching for CA Property Owners to Submit HazMat Business Plans and Comply with Aboveground Storage Tank Requirements

Environmental Law Posts

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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Recent Case Offers Five Lessons for Corporate Managers on Avoiding Personal Liability for Environmental Violations

Environmental Law Posts

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

Environmental Law Posts

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

Environmental Law Posts

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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PA Supreme Court Rules Against PADEP Mere Presence and Water-to-Water Discharge Theories

Environmental Law Posts

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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The Commonwealth Court's Stripper Well Decision - Does it Warrant the Angst?

Environmental Law Posts

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.

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Pennsylvania Supreme Court to Determine the Scope of Monetary Penalties Allowed Under the Clean Streams Law

Environmental Law Posts

The Pennsylvania Department of Environmental Protection (PADEP) has appealed to the Pennsylvania Supreme Court an order of the Commonwealth Court which significantly limits the amount of monetary penalties PADEP can assess under the Pennsylvania Clean Streams Law (CSL). Although it is still early in the proceedings, it appears likely that the Supreme Court's decision could provide important precedent regarding the extent to which PADEP can assess civil penalties under the CSL, especially if the Court accepts and addresses all of the issues PADEP has asserted are implicated by the Commonwealth Court's decision.

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PA DEP Evaluates Itself

Environmental Law Posts

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.

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