Gravel2Gavel Construction & Real Estate Law Blog

In United States v. Tonawanda Coke Corp., the U.S. Court of Appeals for the Second Circuit, in an unpublished opinion released on January 11, 2016, rejected Tonawanda’s appeal of the lower court’s judgment adjudicating it guilty of criminal offenses under the Clean Air Act (CAA) and Resource Conservation and Recovery Act (RCRA), and requiring Tonawanda to fund two studies, at a cost of $12.2 million to investigate the effects of its conduct. On appeal, the Court of Appeals considered Tonawanda’s two arguments. First, Tonawanda argued that its RCRA conviction should be set aside because it did not have fair notice that its conduct was illegal and, second, that the prosecution should be barred because the relevant five-year statute of limitations had expired. The Court of Appeals dismissed the first argument, holding that Tonawanda’s counsel had not preserved this issue at trial. Regarding the second issue, the crime for which Tonawanda was convicted was the illegal storage of hazardous waste. The Court of Appeals found it was a “continuing offense” for which the “limitations clock” did not begin until December 2009, when, presumably, the illegal storage ceased. As stated by the Court of Appeals, “Congress, in enacting RCRA, employed language indicating that it understood [illegal] storage to be a continuing offense.”

On December 29, 2105, the Pennsylvania Supreme Court issued a ruling that may be of considerable interest to oil and gas operators in Pennsylvania. In EQT Production Company v. Department of Environmental Protection of the Commonwealth of Pennsylvania, the Court considered the “whether a company threatened by an administrative agency with ongoing, multi-million-dollar penalties per such agency’s interpretation of a statutory regime has the right, immediately, to seek a judicial declaration that the agency’s interpretation is erroneous.” Answering the question in the affirmative, the Court held that “the impact of the Department’s threat of multi-million dollar assessments against EPC was sufficiently direct, immediate, and substantial to create a case or controversy justifying pre-enforcement judicial review via a declaratory judgment proceeding, and that exhaustion of administrative remedies relative to the issues of statutory interpretation that the company has presented was unnecessary.”  The Court also confirmed that very large civil penalty assessments may be subject to pre-enforcement judicial review in Pennsylvania state courts and that the Pennsylvania Environmental Hearing Board (PEHB) may not have exclusive jurisdiction to review these proposed penalties.

Continue Reading ›

The U.S. Court of Appeals for the Eighth Circuit has distinguished decisions from the Fifth and Tenth Circuit that appear, at first blush, to be in conflict with its ruling that the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10501(b) (ICCTA), preempts state law negligence claims. In the case of Tubbs, et al., v. Surface Transportation Board, et al., decided on December 28, 2015, the Court of Appeals denied a petition to review an administrative decision of the Surface Transportation Board (STB) in which the STB held that the ICCTA, preempts the plaintiffs’ state-tort law claims against the BNSF Railway Company for damage caused by the flooding resulting from the railroad’s maintenance of an earthen embankment that bisects the Tubbses’ their property on which BNSF operates a railroad track. There appears to be room for further development of the Court of Appeals’ thinking on this topic.

Continue Reading ›