Another State Takes a Seat at the PFAS Table – Developments in the Commonwealth of Pennsylvania

As an emerging issue touching most corners of the country, our firm’s lawyers report on everything PFAS. Although New York and New Jersey — the latter being one of the leaders on PFAS action — are popular subjects, we come to you today with an update from their neighbor: the great Commonwealth of Pennsylvania. A state without its own PFAS regulations, it has been taking meaningful steps in the last few months to investigate these substances. On September 19, 2018,
Continue reading...

Fracking Wastewater Does Not Meet Definition of “Toxic” Under Pennsylvania Law, Appellate Court Says

Pennsylvania’s appellate courts continue to be active in shaping the state’s laws surrounding hydraulic fracturing. Recently, in Protect PT v. Penn Township Zoning Hearing Board and Apex Energy (PA) LLC, the Commonwealth Court affirmed a zoning board’s decision permitting a natural gas company to store large quantities of wastewater from fracking operations at and around multiple drilling sites because it did not meet the definition of “toxic” material, as set forth under local ordinance, among other reasons. In this decision involving multiple
Continue reading...

Pennsylvania Legislators in Favor of Fracking, Seek to Join Opposition Against Delaware River Basin Commission’s Moratorium

Earlier in 2017, we reported the Third Circuit Court of Appeals’ decision to reinstate a landowner’s challenge to the Delaware River Basin Commission’s (DRBC) moratorium on hydraulic fracturing in the 24 county region, spanning across parts of Pennsylvania, New York, Delaware, and New Jersey. In that decision (Wayne Land & Mineral Group LLC v. Del. River Basin Comm’n), the court held that the definition of the word “project,” as set forth in the DRBC’s governing document, the “Compact,” was ambiguous, and therefore remanded the case for the trial court to engage in fact-finding
Continue reading...

Hydraulic Fracturing Update: PA Appellate Court Permits Enforcement of $1 Million Dollar Penalty Upon Fracking Operator

Recently, a Pennsylvania Appellate Court decided to permit the enforcement of a monetary penalty levied upon a driller, totaling over $1.1 million, stemming from the delay of maintenance to leaks in a damaged liner of an impoundment used to contain wastewater from hydraulic fracturing operations.    ​In EQT Production Company v. Department of Environmental Protection, Docket # 844 CD 2017, a driller challenged the extent of a monetary assessment against it by Pennsylvania’s Department of Environmental Protection (DEP). The Commonwealth of Pennsylvania’s Environmental Hearing
Continue reading...

EPA’s Slow March Towards Federal Regulation of PFAS

In May, we reported on developments involving a case in the Eastern District of Pennsylvania involving water contamination and exposure to per- and polyfluoralkyl substances (PFAS). PFAS is a family of man-made chemicals that includes PFOA, PFOS, and PFNA (and many others). The chemicals are commonly found in many consumer products, including stick-proof food packaging, waterproof clothing, and non-stick cookware. The plaintiffs in the PA case alleged that aqueous film forming foams (AFFF) used for firefighting drills at the Naval
Continue reading...

Pennsylvania Supreme Court Sides With Gas Industry, But Allows For Potential Enforcement of Two New Rules

The Pennsylvania Supreme Court recently decided to preserve an injunction against the Department of Environmental Protection of Pennsylvania (DEP) that prevents the enforcement of various new rules pertaining to hydraulic fracturing operations. In the case of The Marcellus Shale Coalition v. Department of Environmental Protection, et. al., industry organization, the Marcellus Shale Coalition (MSC), had sought a preliminary injunction, challenging the validity of several regulations relating to unconventional gas well operations (which includes hydraulic fracturing, as opposed to traditional oil
Continue reading...

Bystanders Beware – No Strict Products Liability Claims for Bystanders in AFFF / PFAS Actions in Pennsylvania

Lawsuits involving water contamination have been trending over the past couple years throughout the United States. We’ve seen a shift in the plaintiff’s bar’s focus from pursuing point sources to utilizing traditional product liability theories to support allegations of contamination against manufacturer defendants when the opportunity presents itself. The blue print’s simple – pursue deep pocketed manufacturers where insurance is often available. The product liability lawsuits against manufacturers of aqueous film forming foam (AFFF) – a firefighting foam utilized at airports
Continue reading...

Landmark Ruling: Trespass Claims Against Fracking Companies Proceed as Pennsylvania Recognizes Property Rights to Natural Gas

Recently, the Pennsylvania Superior Court — PA’s appellate court — published its opinion in Briggs v. Southwestern Energy Production, potentially altering the landscape of hydraulic fracturing litigation in Pennsylvania. The intermediary appellate court’s decision centered on the interpretation of Pennsylvania’s rule of capture, which allows companies to drain a natural resource, including oil, gas, or water, from beneath property they do not own so long as they do not trespass on the surface level of the land. In its ruling, the Superior Court noted that the rule
Continue reading...

Power Struggle: A State’s Constitution Being Used to Oppose Hydraulic Fracturing

In June 2017, the Pennsylvania Supreme Court issued its decision in PA Environmental Defense Foundation v. Commonwealth of Pennsylvania, et. al, (PEDF) establishing a broad interpretation of PA’s Environmental Rights Amendment (ERA), which is found in the Commonwealth’s Constitution. Some folks in PA might not know this, but it’s one of only a few states in the nation to recognize having clean air and water as a basic civil right for its citizens. The case, brought by the Pennsylvania Environmental
Continue reading...