Water, water, everywhere. Stormwater floods my property!

Stormwater is inundating my yard and getting into my basement.  Can I hold anyone responsible?

With the assistance of other professionals, lawyers experienced in handling stormwater management and other environmental matters can generally ascertain what the problem is, what causes it, and how it can be solved. While the immutable forces of gravity and weather are of course to "blame," typically some human activity is materially contributing to the problem. If so, those responsible may be held legally liable.

Judicial opinions often say that "water must flow as it is wont to flow," because it is "descendible by its very nature." The owner of higher ground has an easement in lower land for the discharge of all waters that naturally rise in or flow or fall upon the higher ground. Not only is an owner of higher land under no liability for damages to an owner of lower land caused by water which flows naturally from one level to another, but he can improve his land by regrading it or erecting buildings thereon, without legal responsibility for any consequent diversion of surface waters from his property to that of adjoining owners. This is the general rule.

But all general rules have exceptions. In determining whether some person can be held legally accountable, a careful factual investigation and legal analysis are usually required. For example, a property owner may be diverting stormwater from its natural channel onto another's land, unnecessarily increasing the volume and/or velocity of stormwater, or creating an artificial channel which collects and discharges stormwater in greatly increased quantities. These activities can give rise to liability. In such instances, it is necessary to evaluate whether a "legal injury" has occurred. Soil erosion or property damage resulting from flooding or increased stormwater constitutes a legal injury, as does interference with the right of a property owner "to reasonably use and enjoy his property" caused by stormwater.

How long the problem has existed, the frequency of the problem, and the amount of rainfall necessary to trigger it, are important factors. Also important is whether any new development on higher land has materially increased impervious coverage (e.g., parking lots, roof tops, new streets).  It is possible that stormwater management systems have been constructed on higher land, which are exacerbating rather than alleviating the problem.

The question may also arise whether a local government is responsible. This raises additional questions and may depend on legislative "immunity" from liability. If a municipality is making street improvements or engaging in some other public works project after which a stormwater problem appears, there may very well be a basis for liability. On the other hand, if all a municipality has done is approve new land developments with stormwater management systems which prove inadequate, typically there is no liability on the part of the municipality. Under these circumstances, the municipality may be holding funds of the developer which can be used to correct or improve these systems.

Property owners experiencing stormwater problems are well-advised to contact counsel experienced in environmental matters. 

U.S. Chamber of Commerce, Coal & Gas Industries Attack EPA's Greenhouse Gas Endangerment Finding

In a predictable legal free-for-all, industry groups joined the state of Texas and the U.S. Chamber of Commerce late last week in filing challenges to EPA's "endangerment" finding for greenhouse gas emissions under the Clean AIr Act, while sixteen states and several environmental groups joined the fray by seeking to intervene in the industry challenges. The U.S. Court of Appeals for the District of Columbia Circuit will hear the cases.  All of the various petitions for review will almost certainly be consolidated. Background:  On December 7, 2009, the EPA Administrator signed two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act:

• Endangerment Finding: The Administrator found that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations.
• Cause or Contribute Finding: The Administrator found that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.

These findings do not themselves impose any requirements on industry or other entities  See EPA's background materials supporting its greenhouse gas endangerment findings under section 202 of the Clean Air Act.

The industry challengers include Ohio Coal Association, the Utility Air Regulatory Group, the Portland Cement Association, and the Competitive Enterprise Institute, along with a coalition that includes the National Association of Manufacturers (NAM), the American Petroleum Institute, the Corn Refiners Association, the National Association of Home Builders, the National Petrochemical and Refiners Association, and the Western States Petroleum Association. Ten other petitions were filed by the American Iron and Steel Institute, the American Farm Bureau Federation, the National Mining Association, Peabody Energy, the Southeastern Legal Foundation on behalf of 13 House Republicans and business associations, and the so-called "Coalition for Responsible Regulation".

The state and environmental groups seeking to intervene to support EPA's endangerment finding include a coalition of 16 states and New York City, and groups including the Natural Resources Defense Council, Environmental Defense Fund, Sierra Club and the National Wildlife Federation.

In a statement reported by the New York Times, Environmental Defense Fund Texas regional director Jim Marston said: "The lawsuit filed by Governor Perry is asking the Environmental Protection Agency to ignore the Supreme Court's decision in U.S. vs. Massachusetts. Their action invokes memories of a sad time in Texas history from the '50s, when Texas politicians sought to nullify decisions of the U.S. Supreme Court. Not only is it legally unsound, it puts Texas on the side of the 1950s economy, against the clean energy economy of the future."

LANTA and City of Easton Begin Environmental Review for Intermodal Transit Center

LANTA (Lehigh and Northampton Transportation Authority) has commenced the environmental review process for its proposed Intermodal Transit Center to be located on South Third Street in the City of Easton.  At a public meeting on February 18, 2010, project representatives made a public presentation of the project and began to receive public comments. The project's purpose is "to provide a protected, off-street transfer center and terminal for transit and intercity bus passengers with access to parking, expand public parking and support the economic revitalization of center city Easton".  The project is expected to include commercial buildings along South Third Street built with minimal setback from the sidewalk, in conformance with current urban design standards in the downtown, a transit center for LANTA and inter-city bus transportation, a parking garage intended to replace the existing Easton parking garage and a 20-vehicle surface parking lot. An environmental assessment will be conducted under the National Environmental Policy Act (NEPA), which will include a traffic study, noise analysis, environmental site assessment, review of impact on historic resources, and floodplain analysis.  LANTA has placed on Google Docs a downloadable copy of the LANTA Powerpoint presentation for the project. The Environmental Assessment is expected to be completed in May 2010, followed by the required public notice, comment period and public hearing.

PADEP/EQB Propose Overhaul of State NPDES Program Requirements

The Pennsylvania Department of Environmental Protection (PADEP) and the Environmental Quality Board (EQB) have proposed a complete reorganization and overhaul of the current Pennsylvania program regulations for National Pollutant Discharge Elimination System (NPDES) permits, monitoring and compliance.  As the public notice says, "The primary goal of the proposed rulemaking was to rebuild the regulation from scratch." The new proposed requirements are set forth ina proposed rulemaking published in the February 13, 2010 Pennsylvania Bulletin. The proposed rules can be found online at http://www.pabulletin.com/secure/data/vol40/40-7/276.html.  Public comments on this proposal may be submitted to the Environmental Quality Board at any one of the following addresses: U.S. Mail: EQB, P.O. Box 8477, Harrisburg, PA 17105-8477; Electronically: RegComments@state.pa.us; Street Address: 16th Floor, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA 17101-2301.  Comments must be received by the Environmental Quality Board by March 15, 2010.

PADEP Proposes More Stringent Air Pollution Standards/NSR Rules for Fine Particulates

On February 6, 2010 The Pennsylvania Environmental Quality Board (EQB) published a formal notice of proposed rulemaking to amend Pennsylvania's New Source Review (NSR) rules to incorporate current federal requirements for fine particulate matter, so-called "PM 2.5".  Recent federal revisions to the National Ambient Air Quality Standard (NAAQS) for PM2.5 have made the standard much more stringent, reducing the primary and secondary 24-hour NAAQS for PM2.5 from 65 micrograms/cubic meter to 35 micrograms per cubic meter. As a result of this change, Bucks County, Lehigh County and Northampton County (among others) have been designated as non-attainment for the 24-hour NAAQS for PM2.5.These changes will affect new major stationary sources and major modifications to such sources which emit fine particulate matter.

The proposed rulemaking was published for public comment in the Pennsylvania Bulletin of February 6, 2010. Comments on this proposal may be submitted to the Environmental Quality Board at any one of the following addresses: U.S. Mail: EQB, P.O. Box 8477, Harrisburg, PA 17105-8477; Electronically: RegComments@state.pa.us; Street Address: 16th Floor, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA 17101-2301.  Comments must be received by the Environmental Quality Board by April 12, 2010.

National Park Service to Evaluate 500kV Transmission Line to Cross Appalachian Trail and Delaware Water Gap National Recreation Area

SECOND UPDATE: The National Park Service has now published the Final Environmental Statement on the project. See our September 1, 2012 post for updated information.

UPDATE:  The National Park Service has published its Draft Environmental Impact Statement on the proposed action. It concludes that the preferred environmental alternative is the "no action" alternative. The public comment period on the DEIS is open until January 31, 2012.

 The National Park Service is deciding whether to allow the construction of a new 500 kV electric transmission line to cross the Appalachian National Scenic Trail and the Delaware Water Gap National Recreation Area.  Today (January 21, 2010) it issued its Notice of Intent to Prepare an Environmental Impact Statement (EIS) for a construction and right-of-way permit requested from the Delaware Water Gap National Recreation Area, Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail, in connection with the Susquehanna to Roseland 500kV Transmission Line. 

You can view the Federal Register notice here. The public participation and public scoping process under the National Environmental Policy Act commences with the Federal Register publication today. The public can comment on the project's purpose, need, objectives, preliminary alternatives, mitigation and other issues by submitting comments through the NPS project website at http://parkplanning.nps.gov/dewa/.

The project proposes to expand upon an existing right-of-way which contains a single 230,000 volt (230kV) electric transmission line by replacing the existing towers with new, taller tower structures and adding an additional 500,000 volt (500kV) transmission line. The request would necessitate widening the existing ROW and constructing new access roads. The expanded line and new towers will impact three units of the National Park Service: the Delaware Water Gap National Recreation Area; the Middle Delaware National Scenic and Recreational River and National Recreation Water Trail; and the Appalachian National Scenic Trail (AT). The NPS is preparing an Environmental Impact Statement (EIS) to evaluate the permit request.

Additional information, including the NPS internal scoping meeting report, is available from the National Park Service Planning, Environment and Public Comment page for the project.

Green Maps® Go Mobile: "What's Green Near You?"

GreenMap®,the global award-winning community & environmental mapmaking system, is launching its new mobile platform for smartphones, PDAs and other hand-held devices, making its Open Green Map system available to mobile phone users on-the-go.

The Lehigh Valley's first Green Map - the Environmental Features of the City of Easton, Pennsylvania is now available for mobile users. The Green Map was created through a partnership between Easton's Environmental Advisory Council and Lafayette College's Mapping Urban Ecology course.  Mobile smartphone users can now access the Open Green Map system and by entering their location will see a list of "green" and community sites nearby. Each site references more detailed information and is linked to Google Maps. 

Now in its 15th year, Green Map System has engaged communities worldwide in mapping green living, nature and cultural resources with a unique system of mapping icons and adaptable tools.  The system promotes inclusive participation in sustainable community development with perspective-changing Green Maps that chart local natural, cultural and social resources.

From Green Map: "Open Green Map creates an interactive space for everyone to share their insights, images and impacts about local green sites of all kinds. Open Green Map connects the booming 'go local,' green development and ecotourism movements, empowering widespread participation in critical local environment, climate and equity issues worldwide. Based on open source and familiar mapping technologies like Google Map, Open Green Maps are always available, easily updated, expanded and explored in online, mobile and custom formats, to celebrate sustainability and social resources without barriers."

Among its honors, Green Map System is a recipient of the US National Sustainability Award in New Communications Tools, listed among the 100 United Nations Best Practices, a Technology Benefiting Humanity Laureate, and a Stockholm Challenge finalist.         

EPA Announces New Proposed NAAQS (Air Quality) Standards for Ozone

The United States Environmental Protection Agency today announced a set of new proposed National Ambient Air Quality Standards (NAAQS) for ground-level ozone, also known as "smog". Ground-level ozone is linked to various serious health problems, ranging from aggravation of asthma to increased risk of premature death in people with heart or lung disease. EPA is proposing to replace the standards set in 2008 by the Bush administration. Those standards were roundly criticized as inadequate to protect human health as required by the Clean Air Act. EPA's press statement states: "EPA is stepping up to protect Americans from one of the most persistent and widespread pollutants we face. Smog in the air we breathe poses a very serious health threat, especially to children and individuals suffering from asthma and lung disease. It dirties our air, clouds our cities, and drives up health care costs across the country." The new primary standard, developed to protect public health, is proposed to be a level between 0.060 and 0.070 parts per million (ppm) measured over eight hours. The current eight-hour primary standard is 0.075 parts per million (ppm). EPA is also proposing to set a separate “secondary” standard to protect the environment, especially plants and trees. This seasonal standard is designed to protect plants and trees from damage due to ozone exposure,

EPA will receive public comments on the proposed rule for a period of sixty days from the date the proposed rule is published in the Federal Register.  We'll update this post with a link to the Federal Register notice when it is published.

FIRST UPDATE:  EPA has announced public hearings on this ozone NAAQS rulemaking. See the public notice for details of the EPA hearings scheduled for Arlington, Virginia and Houston,Texas on February 2, 2010 and in Sacramento, California on Feburary 4, 2010.

SECOND UPDATE: January 19, 2009: EPA today published the Federal Register notice on the proposed rule to revise the NAAQS for ozone. A copy of the proposed rulemaking is available online at http://edocket.access.gpo.gov/2010/2010-340.htm. Written comments to EPA are due by March 22, 2010. Comments may be submitted electronically to http://www.regulations.gov (follow the on-line instructions) and via e-mail to: a-and-r-Docket@epa.gov

NRDC Offers Updated Pennsylvania Renewable Energy Projects Mapping & Profile

The Natural Resources Defense Council (NRDC) has posted (December 5) new and updated information on Pennsylvania renewable energy projects. See NRDC Switchboard.  In its web-page "Renewable Energy for America - Harvesting the Benefits of Homegrown, Renewable Energy", NRDC provides an interactive mapping tool showing the location, developer and energy production of existing and proposed renewable energy projects throughout the United States.NRDC sums up Pennsylvania's renewable energy status: "Though Pennsylvania has one of the nation's largest coal-mining industries and second-largest nuclear industry, parts of the state are in the national vanguard of clean, green energy use." In its Pennsylvania Renewable Energy Profile, NRDC offers details about Pennsylvania's existing renewal energy facilities and potential future expansion, including wind energy, solar power, biomass fuels and cellulosic ethanol, and biogas (methane) production.  

Funding and economic incentives for Pennsylvania renewable energy projects. Perhaps most importantly, the Pennsylvania profile also includes information about project funding sources and economic incentives for renewable energy projects in the state. For example, businesses, non-profits, universities, and municipalities can apply to the Pennsylvania Energy Development Authority (PEDA) for assistance with capital costs on a variety of advanced energy projects, including solar energy, wind, biogas and biomass. Awards are made once a year. 

The Database of State Incentives for Renewables and Efficiency lists federal, state and local government incentives for renewable energy projects in Pennsylvania. The database includes project grant and loan application details, including eligibility criteria, loan and grant terms, application guidelines and other information useful to applicants.  Many of these Pennsylvania programs are administered through the Department of Community and Economic Development. You can download the Pennsylvania DCED Alternative and Clean Energy Program Guidelines by clicking the link below: 

Download Alternative And Clean Energy Guidelines (Nov. 2009)

PADEP Grants Chrin Landfill 10-Year Permit Renewal; Imposes Fine and New Conditions

 The Pennsylvania Department of Environmental Protection (PADEP) granted Chrin Brothers landfill in Williams Township, Pennsylvania a 10-year renewal of its municipal waste landfill permit, according to an Express-Times (Easton, PA) newspaper article linked here.  While granting the landfill a renewal of its operating permit, DEP also imposed a $187,500 fine for prior violations for off-site odors, nuisance minimization problems and insufficient landfill gas management. PADEP also imposed additional permit conditions, including the requirement to install temporary capping measures that will cover about 60 percent of the landfill within two years. The PADEP facility eFACTS file on the landfill can be viewed by clicking here. The file includes permit information, history of inspections and violations, and other pertinent data.  

The PADEP's decision renewing the permit and imposing the fine and additional conditions can be appealed to the Pa. Environmental Hearing Board.

UPDATE:  Chrin Brothers, Inc. has appealed the PADEP fine to the Pa. Environmental Hearing Board.   For more information, see our post of January 31, 2010.

Pa. Supreme Court Gives Victory to Mercury-Emitting Coal Power Plants; Invalidates State DEP Mercury Emission Limits

The Pennsylvania Supreme Court handed a victory this week to coal-fired electric generating facilities when it invalidated Pennsylvania's regulations limiting their emission of mercury.  In its December 23, 2009 decision, the Court found that the Pa. regulations could not stand after the legal basis for the rule - a federal EPA decision which provided for state regulation of mercury emissions from oil and coal-fired electric generating units - was invalidated by the U.S. Court of Appeals for the D.C. Circuit.Background. In 2005, the U.S. Environmental Protection Agency (“EPA”) issued a final "Delisting Rule" which removed oil- and coal-fired electric generating units (EGUs) from the list of mercury pollution sources regulated under the hazardous air pollutants provisions of section 112 of the Clean Air Act. (70 Fed. Reg. 15994-01 (03/29/2005)). However, the EPA did not abolish regulation of mercury emissions from oil- and coal-fired EGUs. Rather, it shifted the responsibility for the mechanics of the regulation to the states. To accomplish this shifting to the states, the EPA promulgated the Clean Air Mercury Rule (“CAMR”). 70 Fed. Reg. 28606 (5/18/2005). CAMR was predicated on the Delisting Rule and it established a mercury emission budget for each state and required each state to develop a program to regulate the mercury emissions from oil- and coal-fired EGUs.  Pennsylvania opted to develop a mercury regulation program that would keep emissions within the mercury budget set by the EPA and developed the PA Mercury Rule as the Pa. state response to CAMR. The PA Mercury Rule required, among other things, coal fired power plants to reduce their mercury emissions by 80% by January 2010.

EPA's decision to delist coal-fired electric generating stations from section 112's list of mercury sources was challenged in federal court. The D.C. Circuit Court of Appeals ultimately invalidated that delisting decision because EPA failed to follow the required delisting procedures. New Jersey v. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008). The effect of that D.C. Circuit Court of Appeals decision was that EGUs remained listed as mercury sources under federal law, Section 112. The court also found that once the Delisting Rule was declared invalid, CAMR no longer had a legal basis and it vacated CAMR as well.

Because under the Pa. Air Pollution Control Act, DEP generally cannot regulate hazardous air pollutants which are federally regulated under Section 112 of the Clean Air Act, and the very basis for the Pa. Mercury Rule was EPA's delisting decision, the Pa. Supreme Court held that once the EPA delisting decision was invalidated by the D.C. Circuit Court of Appeals, the Pennsylvania state rule could not stand. 

Case: PPL Generation, LLC, et al., v. Commonwealth of Pennsylvania, No, 7 MAP 2009 (Pa. Supreme Court, December 23, 2009

PA DEP Proposes Major Revisions to Act 2 Requirements for Remediation of Contaminated Properties

The Pa. Department of Environmental Protection has proposed new major revisions to Pennsylvania's Act 2, Land Recycling Program requirements for the cleanup of contaminated real estate.  In a December 15, 2009 presentation to the Environmental Quality Board, DEP proposed to modify statewide cleanup standards for contaminated sites. Under the proposal, Pennsylvania would adopt the cleanup standards under the current EPA Risk Assessment Guidance for Superfund (January 2009) and would revise the tables of numeric values for Statewide health standards.  The proposal would also ensure a regular review of the requirements every three years for possible revisions to the tables of numeric cleanup values for substances regulated under Act 2. Under the new proposal, cleanup standards for 215 pollutants would be made higher; the standards for 170 other pollutants would be made lower. In addition, 26 new substances would be added to the regulations. The DEP Powerpoint presentation to the EQB has additional details. For further information, the entire proposal, including an Executive Summary, preamble to the proposed regulation, and the revised Land Recycling Program Annex A and tables are available here: Proposed Rulemaking: Administration of the Land Recycling Program