Gibbons Law Alert
Governor Andrew Cuomo has proposed major revisions to the New York State Brownfield Cleanup Program (BCP) in the budget he submitted to the state legislature last week. These changes, if enacted, will have a major impact on the types of projects that will be attracted to and accepted into the Program, and the extent to which they are eligible for tax credits.
A number of Responsible Parties are breathing a sigh of relief. On January 21, 2014, Governor Christie signed legislation authorizing a two year extension for Responsible Parties to complete their remedial investigations before risking being placed under direct oversight of the New Jersey Department of Environmental Protection (NJDEP). The deadline has been extended from May 14, 2014, to May 7, 2016, under certain circumstances. Pursuant to the Site Remediation Reform Act (SRRA), the deadline applies to all site investigations or preliminary assessments that are being conducted to address discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999.
A remarkable consensus is emerging regarding proposed changes to New York State’s Brownfield Cleanup Program. That consensus is reflected in recommendations made over the past several weeks by groups with membership and interests as diverse as the Environmental Justice Alliance, the Real Estate Board of New York, and the Environmental Law Section of the New York State Bar Association.
In Residential Funding Co., LLC v. Terrace Mortgage Co., (Docket No. 12-2569, August 7, 2013) the Eighth Circuit upheld a grant of summary judgment, including damages evidenced by records created by a third party and supported by the third party’s affidavit. Ordinarily, an affidavit of a third party, if authenticated under FRE 902(11) (See Klock, New Jersey Practice, V2D, 555 (West 2009) is admissible if an appropriate foundation is laid. See Klock, New Jersey Practice, V2E, 342-43 (West 2012). Proper authentication requires notice of intent to use the affidavit. The affidavit in question apparently was not authenticated in that manner.
The New Jersey Department of Environmental Protection (“NJDEP”) held its 12th Annual Regulatory Update Conference on November 22, 2013. The conference provided brief regulatory updates from a number of NJDEP departments and programs. The New Jersey Department of Environmental Protection (“NJDEP”) held its 12th Annual Regulatory Update Conference on November 22, 2013. The conference provided brief regulatory updates from a number of NJDEP departments and programs including: The Environmental Management Program; The Site Remediation Program; ; The Bureau of Air Quality Planning; The Office of Environmental Justice; The Bureau of Environmental Evaluation & Risk Assessment; The Emission Statement Program; and The Office of Science.
Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment.
Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment.
Environmental attorneys have long wrestled with the issue of whether particular clean-up activities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) fall under the statute of limitations for remedial actions, considered to be permanent responsive action, or for removals, considered to be interim remedial measures to address immediate threats to public health. In a governmental cost recovery action, guessing wrong can deprive a federal or state governmental entity of its ability to recover its clean up costs from Potentially Responsible Parties. In State of New York v. Next Millenium Realty, LLC, the Second Circuit vacated the District Court’s determination, holding that once an activity is instituted as a removal, it remains a removal until completion, even if it is incorporated into the final permanent remedy.
In Trinity Industries, Inc. v. Chicago Bridge & Iron Co., the Third Circuit Court of Appeals held that a party that has resolved its environmental liability only under state law may nevertheless pursue contribution from other responsible parties under the federal CERCLA statute, at least in some instances. Trinity was the owner of an industrial property from 1988 to 2000. In 2006, the State of Pennsylvania initiated an enforcement action against Trinity, which prompted the former property owner to enter a Consent Order with the State’s Department of Environmental Protection (“DEP”) pursuant to Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”) and Land Recycling and Environmental Remediation Standards Act (“LRA”). Under the Consent Order, Trinity agreed to fund and conduct response actions at the property, but expressly reserved its right to pursue cost recovery and contribution against other responsible parties. Subsequently, Trinity brought a contribution action against Chicago Bridge & Iron Co. (“CB&I”), also a former property owner, under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).
Almost twenty years after establishing a methodology for allocating remediation costs among insurance policies in so-called “long-tail” cases, the New Jersey Supreme Court was faced with a new question: what happens when one of the insurers is insolvent? Applying a 2004 statutory amendment and interpreting it as reversing the result in a 1997 Appellate Division case, the Court held, in Farmers Mutual Fire Insurance Company of Salem v. New Jersey Property-Liability Insurance Guaranty Association that in such a case the policy limits of all solvent carriers must be exhausted before a claimant can recover any benefits from a special statutory fund created to stand in the place of insolvent insurers. The decision has important ramifications for corporations with complex insurance programs and potential environmental issues regarding sites where contamination may have been present over many years.