Gibbons Law Alert

Gibbons Law Alert

Category: Environmental and Green Issues

Governor Christie Vetoes Offshore Wind Bill

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Posted in Development/Redevelopment / Environmental and Green Issues

On May 9, 2016

Recently, Governor Christie vetoed legislation designed to allow additional applications for offshore wind projects seeking approval from state regulators. The now-defunct bill, S988, sponsored by Senators Bob Smith (D-Middlesex) and Jim Whelan (D-Atlantic), sought to allow the New Jersey Board of Public Utilities (“BPU”) to open a 30-day period for the submission of offshore wind project applications. More specifically, the bill would have allowed BPU to accept and approve “a qualified wind energy project that is located in territorial waters offshore of [a] municipality in which casino gaming is authorized,” i.e. a wind project offshore from Atlantic City.

Remedial Investigation Deadline Looms for New Jersey Contaminated Sites

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Posted in Development/Redevelopment / Environmental and Green Issues

On April 21, 2016

In less than three weeks, the statutory deadline to complete a site-wide remedial investigation (“RI”) for many contaminated sites in New Jersey will pass. Any site for which an RI has not been completed will be subject to direct oversight of the New Jersey Department of Environmental Protection (“NJDEP”), which would come with additional costs, less control over the remediation, and other burdens for responsible parties. Accordingly, responsible parties and their Licensed Site Remediation Professionals (“LSRPs”) should do everything in their power to complete an RI by the statutory deadline: May 7, 2016.

“And/Or” – No More

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 23, 2016

The use of “and/or” in drafting or, for that matter, anything other than the most casual communications, is one of our pet peeves. It is a substitute for careful drafting and an invitation to ambiguity. Ken Adams, in his Manual of Style for Contract Drafting – which we highly recommend to any serious drafter – devotes two pages to using, or perhaps, better said, mis-using, “and/or.” Mr. Adams observes that since the mid-20th century, judges and legal-writing commentators have railed against the use of “and/or” to convey the meaning of the inclusive “or.”

Gibbons Director David Freeman Featured in The New York Environmental Lawyer

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Posted in Environmental and Green Issues

On February 4, 2016

David J. Freeman, a Director in the Gibbons Real Property & Environmental Department, was recently profiled in the Fall/Winter 2015 edition of The New York Environmental Lawyer for his achievements as a longstanding member of the Environmental Law Section of the New York State Bar Association. A member of the Section for more than 30 years, Mr. Freeman serves as Co-Chair of both the Committee on Hazardous Waste/Site Remediation and the Section’s Brownfields Task Force. The Task Force played an important role in the passage of the State’s Brownfield Cleanup Act in 2003 and the amendments enacted in 2008 and 2015, and in monitoring and commenting on the implementation of the Act by the Department of Environmental Conservation. Mr. Freeman received the Section’s Distinguished Service Award in 2001.

Supreme Court Will Decide Whether State Can Face Liability Under Spill Act

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Posted in Environmental and Green Issues

On January 20, 2016

The New Jersey Supreme Court has decided to hear the State’s appeal of a September 2015 Appellate Division decision that held the State potentially liable for cleanup costs at the Raritan Bay Slag Site. As we reported last fall, the Appellate Division held in NL Industries, Inc. v. State of New Jersey that the Spill Compensation and Control Act, which imposes liability upon both dischargers of hazardous substances and on parties “in any way responsible” for the hazardous substances, is applicable to the State. Under the Appellate Division’s ruling, the State could bear liability for all or some of the cleanup costs related to a seawall that was constructed using contaminated materials. The suit alleges that the State should be held liable because it owned the land under the seawall, approved its construction, issued a riparian grant to the developer that sought to build it, and issued a permit for it.

NJ Legislature Considers Invalidating NJDEP Regulations

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Posted in Environmental and Green Issues

On November 11, 2015

On June 1, 2015, after significant outreach to the relevant stakeholders, the New Jersey Department of Environmental Protection (NJDEP) released for public comment sweeping proposed changes to the rules governing Coastal Zone Management (CZM), N.J.A.C. 7:7E-1.1 et seq., Stormwater Management (SWM), N.J.A.C. 7:8-1.1 et seq., and the Flood Hazard Area Control Act (FHACA), N.J.A.C. 7:13-1.1 et seq. However, the New Jersey Legislature is poised to use its constitutional authority to find that the proposed regulations are inconsistent with the legislative intent of the enabling statutes.

No Safe Harbor: State Can Face Liability Under Spill Act

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Posted in Environmental and Green Issues

On October 13, 2015

Be careful what you wish for. That may be the message of the Appellate Division’s September 23 opinion in NL Industries, Inc. v. State of New Jersey, No. A-0869-14T3. Affirming a “thoughtful and erudite” 2014 Law Division opinion by Judge Douglas K. Wolfson, the appellate court held that the onerous liability regime of the 1976 Spill Compensation and Control Act (commonly known as the Spill Act), which imposes strict, joint, and several liability for cleanups on both the dischargers of hazardous substances and on the much broader class of parties “in any way responsible” for the hazardous substances, is equally applicable to the State. As a result, the State may be responsible for a portion of the remediation of a contaminated site on the shoreline of Raritan Bay that will likely cost more than $75 million.

NYSDEC Hears Comments on Proposed Definition of “Underutilized”

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Posted in Development/Redevelopment / Environmental and Green Issues

On August 5, 2015

On July 29, 2015, the New York State Department of Environmental Conservation (NYSDEC) conducted a public hearing on its proposed definition of an “underutilized” site for purposes of the 2015 Brownfield Cleanup Act Amendments. As indicated in a prior blog, this definition is critical because being “underutilized” is one of the few ways that a New York City brownfield site can qualify for tangible property credits under the 2015 Amendments.

Federal Court Finds Divisibility, Ruling in Favor of Volumetric Approach to CERCLA Divisibility in Fox River Sediment Cleanup Case

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Posted in Environmental and Green Issues

On May 29, 2015

In the latest development in the litigation over the environmental cleanup of the Fox River in northeastern Wisconsin, the U.S. District Court for the Eastern District of Wisconsin has found that NCR Corporation’s liability for the remediation of a section of the river is divisible—not joint and several under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Fox River is a Superfund site contaminated primarily with polychlorinated biphenyls (PCBs) from historic paper manufacturing and recycling facilities along the river. This opinion is believed to be the first such judicial decision that has ruled in favor of a divisibility defense since the Supreme Court’s 2009 decision in Burlington Northern & Santa Fe Ry. Co. v United States. Whether it is an indication of how Courts may address divisibility and apportionment of cleanup costs at complex sediment sites and other sites in the future remains to be seen.

5th Circuit Rules that Sale of Chemical is Not Disposal

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Posted in Environmental and Green Issues

On January 26, 2015

On January 14, the U.S. Court of Appeals for the 5th Circuit ruled that the sale of a useful chemical did not make the seller an “arranger for disposal” under Superfund, even where seller knew that some of that chemical would be spilled during its use. Vine Street LLC v. Borg Warner Corp., 2015 BL 8885, involved the sale of dry cleaning machines and PCE, a dry cleaning fluid, by Norge, a predecessor of Borg Warner. Norge equipped the machines with water separators, which it knew were not 100% effective. It continued to work with the dry cleaner to reduce spillage by modifying the separators’ design. Nonetheless, contamination resulted, and Vine Street, a successor landowner, sued Borg Warner for contribution to the cost of cleanup. The District Court held Borg Warner liable for 75% of the cost of cleanup based on its knowledge that some contamination resulted from these sales.

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