Gibbons Law Alert

Gibbons Law Alert

Category: Environmental and Green Issues

Sovereign Impunity?: State Cannot Be Sued Under New Jersey Spill Act for Pre-Enactment Discharges

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Posted in Environmental and Green Issues

On May 1, 2017

Since its original enactment in 1976, New Jersey’s Spill Compensation and Control Act (commonly known as the Spill Act) has been amended no fewer than ten times. The New Jersey Supreme Court had to grapple with that complicated history in its recent decision in NL Industries, Inc. v. State of New Jersey, No. A-44-15. Reversing the 2015 opinion of the Appellate Division, on which we have already written, the Court held that while the original statute made New Jersey subject to Spill Act liability by including the State in the definition of a “person,” subsequent amendments that (among other changes) expanded some portions of the statute to cover pre-enactment discharges did not “clearly and unambiguously” abrogate the State’s sovereign immunity for pre-enactment activities. As a result, the State can never face Spill Act liability associated with its discharges that occurred before the statute’s effective date of April 1, 1977. The case concerned the remediation of a contaminated site on the shoreline of Raritan Bay with an estimated cleanup cost of $79 million. Development plans for the area in the 1960s led to a proposal to construct a seawall. At least some of the material used in the seawall, which was completed in the early 1970s, allegedly consisted of furnace slag from a lead smelting facility operated...

Turning Back the Clock: NJ Appellate Division Holds That ISRA De Minimis Quantity Exemption Still Available Following Withdrawal of NFA

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Posted in Development/Redevelopment / Environmental and Green Issues

On April 26, 2017

The New Jersey Appellate Division recently announced several interesting holdings regarding the New Jersey Industrial Site Recovery Act (“ISRA”), N.J.S.A. 13:1K-6, et seq. In R&K Associates, LLC v. New Jersey Department of Environmental Protection, Docket No. A-4177-14T1, the Court held that a former owner of an industrial site may apply for an exemption from the ISRA process even when the former owner has not owned the site for many years and elected to not pursue the exemption in the past. The case concerned the final decision of the Department of Environmental Protection (“DEP”) denying a De Minimis Quantity Exemption (“DQE”) under ISRA to the former owner of the subject industrial site. ISRA is the New Jersey law which generally requires owners of industrial sites to remediate on-site environmental contamination or expressly assume responsibility for remediation prior to transferring an ownership of the site. A DQE under ISRA allows an owner of an industrial site to avoid the requirements of ISRA where only trivial amounts of hazardous substances were used on-site. The case has an extensive procedural history with three appeals and numerous DEP actions, beginning with DEP’s withdrawal of a 1997 No Further Action (“NFA”) letter to the former owner. When the former owner sold the site in 1997, it submitted a Preliminary Assessment Report (“PAR”)...

Sentence First – Verdict Afterwards?: N.J. Appellate Division Holds That Spill Act Allows Private Parties to Compel Participation in Investigation Based on Potential Responsibility

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Posted in Environmental and Green Issues

On March 16, 2017

The New Jersey Spill Compensation and Control Act (Spill Act) has long included a contribution provision that permits private parties to recover cleanup costs incurred to the extent that they exceed their equitable share of those costs. In its recent opinion in Matejek v. Howard, the New Jersey Appellate Division interpreted the statute to give private parties another powerful remedy: the ability to compel other private parties who may be responsible for the contamination to participate in the investigation of the contamination, even before any findings about their respective responsibility. The case arose in Hillsborough, where the Department of Environmental Protection (DEP) removed underground tanks from five units in a condominium project after oil was discovered in a nearby stream. After confirming the absence of oil in the stream a few months later, DEP took no further steps. Seven years later, with DEP’s file on the matter still open, the owners of one of the units sued the owners of the other four units, seeking to compel them to participate in and equally share in an investigation and, if necessary, cleanup of their property. Even though there was no evidence about the precise source(s) of the contamination, the trial court found the fact that DEP had removed all five tanks to be sufficient grounds to...

A Final Word on EPA’s New Recommendations on Sediment Cleanups

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Posted in Environmental and Green Issues

On March 9, 2017

We recently wrote about a new memorandum from EPA’s Office of Land and Emergency Management that sets forth eleven recommendations for the agency’s regional offices on how to clean up contaminated sediments, and later covered some of the recommendations in greater detail. Here we discuss the rest of EPA’s recommendations. EPA’s recommendations are shown below in bold text, followed by our comments and analysis. Recommendation 6: Develop risk reduction expectations that are achievable by the remedial action. The National Contingency Plan requires EPA’s remediation goals at a given site to be protective of human health and the environment, but sometimes natural or anthropogenic background concentrations unrelated to the CERCLA release being remediated (especially for persistent contaminants associated with cancer risks, such as PCBs and dioxins) can make it impossible to achieve that goal via the cleanup. In such cases, expectations need to match reality, and the remedy should include additional risk reduction strategies (e.g., fish consumption advisories) to ensure protectiveness. Recommendation 7: Consider the limitations of models in predicting future conditions for purposes of decision making. Environmental professionals, no less than anyone else, can forget that computers are tools that help to inform decisions, but cannot replace human judgment. Even the most sophisticated model is a simplification of the real-world processes, and its results will necessarily incorporate some...

EPA Agrees to Push Back Comment Deadline for Proposed Financial Assurance Regs

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Posted in Environmental and Green Issues

On March 7, 2017

The United States Environmental Protection Agency (“EPA”) recently extended the public comment period for a proposed rule which would impose financial assurances requirements for cleanups conducted by companies in the hardrock mining industry, as required by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). In publishing the proposed rule on January 11, 2017, the EPA established a 60-day comment period for impacted parties to present their views on the rule to EPA. An overview of the financial assurance requirements imposed by CERCLA and the details of the proposed rule can be found in our prior posts on June 13, 2016 and January 4, 2017. On February 17, 2017, Congressmen Greg Walden (R-OR), Rob Bishop (R-UT), and Bill Shuster (R- PA) asked then-acting EPA Administrator Catherine McCabe to extend the comment period into the summer of 2017, citing the intricacies of the rule and complicated statistics on which EPA relied in drafting the rule. A week later, on February 24, 2017, recently confirmed EPA Administrator Scott Pruitt granted the request and extended the comment period by four months, claiming that the extension was in response to dozens of requests from stakeholders, in addition to the letter from the congressmen. Comments on the proposed rule are now due by July 11, 2017. The environmental attorneys at...

Tenth Circuit finds that Ch. 11 Bankruptcy Debtor’s Settlement of CERCLA Claims No Bar to Post-Reorganization Contribution Action Against Other PRPs

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Posted in Environmental and Green Issues

On March 6, 2017

The Tenth Circuit recently ruled in Asarco, LLC v. Noranda Mining, Inc. that a mining company (“Plaintiff”) could maintain a contribution action against another mining operation (“Defendant”) under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) despite the Plaintiff’s earlier representation in Bankruptcy proceedings that its fair share of liability for contamination at the site in question was $8.7 million — the amount it paid to settle the Environmental Protection Agency’s claim. The pertinent facts arose, largely, from the Plaintiff’s Chapter 11 Bankruptcy and a global settlement of all environmental claims. The global settlement, reached in 2009, resolved environmental claims at 52 different sites across 19 states, with a total cost of about $1.79 billion. Included among the myriad claims being settled was the one at issue in this case: an $8.7 million payment to address the Plaintiff’s share of liability at two related sites near Park City, Utah (“the site”). Defending the reasonableness of the settlement figure before the Bankruptcy Court, the Plaintiff maintained that $8.7 million represented its proportionate share of liability for contamination at the site. In 2013, following its Chapter 11 reorganization, the Plaintiff filed a CERCLA contribution claim against the Defendant, another potentially responsible party at the site, arguing that the $8.7 million it paid to settle the EPA’s...

More on EPA’s New Recommendations on Sediment Cleanups

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Posted in Environmental and Green Issues

On February 15, 2017

Last month, we wrote about a new memorandum from the EPA’s Office of Land and Emergency Management that sets forth 11 recommendations for the agency’s regional offices on how to clean up contaminated sediments. Here we discuss some of those recommendations in greater detail. The EPA’s recommendations are shown below in bold text, followed by our comments and analysis. Recommendation 1: Consider early actions during the remedial investigation/feasibility study in site areas presenting high risks to help reduce risks quickly. Here, the EPA advises its regional offices not to wait until the sediments at a site are well characterized before taking steps to reduce serious risks. In many situations, the EPA can use its removal authority to reduce serious risks while other portions of the site are studied. Recommendation 2: Ensure adequate data collection during the remedial investigation/feasibility study to support the evaluation of alternatives. It’s never too early to plan ahead. From the very start of the process, the focus should be on collecting data that will support an eventual evaluation of remedial alternatives. Avoid “study for study’s sake.” Recommendation 3: Evaluate the risks associated with exposures to contaminated sediments, including submerged sediments. While the greatest risks at many sites likely involve ingestion of fish and shellfish, site managers should not ignore more direct pathways, such as...

Executive Order Spells Uncertainty for Pending EPA Rules

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Posted in Environmental and Green Issues

On February 8, 2017

On January 30, 2017, as promised during his campaign, President Trump signed an executive order requiring federal agencies to identify two regulations to be repealed for every new regulation that is created. The order comes on the heels of a January 20, 2017 memorandum from White House Chief of Staff Reince Priebus directing agency heads to freeze new or pending regulations including those that had been finalized but not yet published in the Federal Register. The “one in, two out” rule and regulatory freeze spell uncertainty for regulations currently in the pipeline for adoption by the Environmental Protection Agency (“EPA”), including the proposed financial assurances rules for the hardrock mining industry we have previously covered here. Other impacted EPA rule proposals include a stormwater general permit designed to reduce polluted runoff from construction sites and a rule which would include vapor intrusion as a method of evaluating contamination levels at potential Superfund sites. At present, it is unclear how the administration’s actions will ultimately impact any pending EPA regulations (or those of other federal agencies). The environmental attorneys at Gibbons P.C. will be closely monitoring any further executive action impacting proposed EPA rules and report on any important developments.

NYSDEC Announces Proposed Amendments to SEQRA Regulations

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Posted in Environmental and Green Issues

On February 6, 2017

The New York State Department of Environmental Conservation (NYSDEC) recently announced proposed amendments to the regulations implementing the State Environmental Quality Review Act (“SEQRA”), 6 N.Y.C.R.R. Part 617. The amendments mark the first update to the SEQRA regulations in over 20 years. According to a press release issued by the NYSDEC, “[t]he update is designed to encourage smart growth and sustainable development across the state” and is intended to compliment the agency’s implementation of the New York State Lean Initiative, which the NYSDEC says has “improved public responsiveness and performance at DEC while maintaining high standards of environmental and natural resource protection.” The press release explains that “[t]he proposed amendments to SEQR will both streamline and strengthen the State’s environmental review process by expanding the actions not subject to further review, known as Type II actions, modifying certain thresholds for actions deemed more likely to require the preparation of an environmental impact statement (EIS), making scoping of an EIS mandatory rather than optional, and making the acceptance procedures for a draft EIS more consistent.” Examples of proposed Type II actions that would be added to the SEQR regulations include: installation of broadband within an existing right-of-way; green infrastructure upgrades or retrofits; installing 5 MW or less of solar arrays on landfills, cleaned-up brownfield sites, wastewater...

David Freeman to Speak at New York City Brownfield Partnership Seminar

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 1, 2017

David J. Freeman, a Director in the Gibbons Environmental Department and Co-Chair of the Brownfields Task Force of the Environmental Law Section of the New York State Bar Association, will speak at an upcoming seminar on “New York State’s Brownfield Cleanup Program: What to Look for in 2017.” The seminar is sponsored by the New York City Brownfield Partnership and will take place on February 7 from 9:00 to 10:00 a.m. Mr. Freeman and other panel members will review the major changes to the Program made by the 2015 amendments to the state’s Brownfield Cleanup Act, including the new definition of “brownfield site”; new deadlines for admission to the Program and for issuance of Certificates of Completion; new rules and DEC procedures with respect to costs that qualify for site preparation tax credits; and restrictions on tangible property credits for properties in New York City, including DEC’s new definition of an “underutilized” site.

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