David Mandelbaum

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When many parties are jointly and severally liable for the same contamination problem, not every one of those parties can pay more than its fair share of that joint liability in a settlement. Section 113(f)(2) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”) assures that the non-settling parties get the benefit of any over-payment, and at least one of them may therefore end up paying less than its share. But what…
On April 26, 2019, the Pennsylvania Environmental Hearing Board (EHB) voided two amendments to a prospective purchaser agreement (PPA) for the Bishop Tube Site entered into in 2007 and 2010. Del. Riverkeeper Network v. Dep’t of Envt’l Prot’n, EHB Dkt. No. 2018-020-L (Constitution Drive Partners). The underlying PPA was dated 2005. The Department of Environmental Protection (DEP) failed to issue public notices of the amendments until 2017, and did not respond to comments received until…
Section 400(h) of the National Contingency Plan (NCP) contains an unremarked, yet problematic, last sentence. The NCP, of course, governs response actions under the federal Comprehensive Environmental, Response, Compensation and Liability Act (CERCLA or Superfund); the government cannot recover costs incurred inconsistently with that regulation. 42 U.S.C. § 9607(a)(1-4)(A). Section 400(h) provides: (h) Oversight. The lead agency may provide oversight for actions taken by potentially responsible parties to ensure that a response is conducted…
On Feb. 21, 2019, the Delaware Superior Court decided that the state’s Department of Natural Resources and Environmental Control (DNREC) cannot order an environmental violator to remedy its violation under the department’s general enforcement statute. That is, under that statute, DNREC can order a person illegally disposing of solid waste to stop adding to the waste pile, but it may not be able to order that person to remove what is already there.  Delaware Dept.
On the morning of Dec. 25, the News Analysis on page A1 of the New York Times led off with this cheery holiday thought: “Sometime in the last couple of months, predictions of a major economic downturn or recession in 2019 went from being a crank view to the conventional wisdom.” At the front end of the Great Recession, we offered some ways in which businesses and others could protect themselves against environmental liabilities flowing from bad…
Soil or groundwater cleanups can take a long time. When one person conducts the cleanup and another has an interest in its completion, the two can disagree over the pace of the project. That is typically a three-party issue involving the regulator—for example, the Environmental Protection Agency or the Department of Environmental Protection. Resolving the dispute by litigation poses challenges. Last month, the Commonwealth Court offered some guidance on some of these challenges in Delaware…
Section 5(a)(iii) of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act (“Chapter 21E”) makes persons liable to clean up releases of oil or hazardous material also liable to any other person for property damage caused by the release. The Supreme Judicial Court decided a case on January 19 restating clearly that private liability for property damage is residual to the claim for a cleanup or cleanup costs. Grand Manor Condominium…
The Pennsylvania appellate courts decided about two dozen cases that one could call “environmental” last year. A brief review follows that necessarily gives short shrift to some of these opinions. This review may also omit some cases, for which I apologize. Read Environmental Cases in the Pennsylvania Appellate Courts During 2017 by clicking here.…
Earlier this month, the Pennsylvania Commonwealth Court decided Becker v. Department of Environmental Protection, No. 560 C.D. 2017 (Pa. Commw. Ct. Dec. 1, 2017), a case focused primarily on what constitutes a “watercourse” or “stream” under the Pennsylvania Dam Safety and Encroachments Act. However, the court also considered whether the Department of Environmental Protection (DEP) and the Environmental Hearing Board (EHB) properly ordered a former owner to restore damage to the stream even though…
On Oct. 16, the Environmental Protection Agency published its proposal to repeal the carbon pollution emission guidelines for existing electric power plants, the centerpiece of the Clean Power Plan, 82 Fed. Reg. 48,035. That action serves as a reminder that the current national administration takes seriously its promise to deregulate business under the environmental laws. Indeed, the president claimed publication of the proposal as a significant accomplishment in a tweet on Oct. 15. In Pennsylvania,…