Gibbons Law Alert

Gibbons Law Alert

Category: Environmental and Green Issues

Gibbons Director, David Freeman, to Speak at Upcoming Strafford Brownfield Webinar

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 27, 2013

David J. Freeman, a Director in the Gibbons Real Property & Environmental Department, will speak at the upcoming Strafford webinar, “New Developments in Brownfield Redevelopment,” on Tuesday, March 19, 2013. Recently, brownfield development has grown more complex, creating new challenges on top of the pre-existing federal, state and local legal and regulatory requirements and permitting approvals. Mr. Freeman and his fellow panelists will discuss “hot topics” in brownfield redevelopment, including: Bona Fide Purchaser Requirements After the Ashley II Decision; Vapor Intrusion; Brightfields; Changes in Land Use; Financing; Environmental Justice.

District Court Decision Provides Further Guidance on Scope of “Arranger” Liability Under Superfund

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Posted in Environmental and Green Issues

On February 15, 2013

The U.S. Supreme Court’s decision on “arranger liability” under Superfund in Burlington Northern & Santa Fe Ry. Co. v United States continues to reverberate. The most recent manifestation is a January 31, 2013, decision by the U.S. District Court for the Eastern District of North Carolina in Carolina Power & Light Co. v. Alcan Aluminum Corp. In that decision, the Court granted summary judgment to Georgia Power Co. on the basis that its sale of used transformers to the operator of the Ward Transformer Superfund Site (Site) did not amount to an “arrangement for disposal.” In examining the “fact-specific circumstances,” the Court determined that the evidence established that these transactions were sales of a “useful product” rather than ones with an intent to dispose of a hazardous substance.

NJDEP Posts FAQs on Post-Sandy Flood Elevation Standards

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Posted in Environmental and Green Issues

On February 11, 2013

The New Jersey Department of Environmental Protection (“NJDEP”) recently issued its answers to frequently asked questions (FAQs) regarding the emergency amendments to New Jersey’s Flood Hazard Area Control Act Rules. The emergency regulations were signed into law by New Jersey Governor Christie on January 24, 2013, in the wake of Hurricane Sandy. The new regulations adopt the Federal Emergency Management Agency’s (“FEMA”) updated Advisory Base Flood Elevation (“ABFEs”) maps as the rebuilding standard for the entire state. The rules set minimum elevation standards for the reconstruction of houses and buildings in areas that are in danger of flooding. Because the rules are complex and so many officials and the public are affected, NJDEP issued the FAQs explaining the benefits of the amendments, who is covered, and tips for getting started.

Action Required: NJDEP Implements New Vapor Intrusion Screening Levels

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Posted in Environmental and Green Issues

On January 24, 2013

The New Jersey Department of Environmental Protection (“NJDEP”) recently issued new vapor intrusion screening levels (“VISL”) and related guidelines, which will have an immediate impact on existing remediation sites. The screening levels were updated to reflect the changes in toxicity values and risk-based equations set forth in the United States Environmental Protection Agency’s (“USEPA”) most recent Regional Screening Level (“RSL”) Tables. NJDEP implemented the new VISL as of January 16, 2013. Parties conducting remediations and their Licensed Site Remediation Professionals will need to analyze how these new screening levels impact their sites.

A Super Step in Superfund Regulation? Time Will Tell: EPA Releases Guidance on Negotiation of RD/RA at Superfund Sites and a Revised Settlement Approach for Alternate Sites

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Posted in Environmental and Green Issues

On January 14, 2013

In the controversial area of Superfund regulation, the United States Environmental Protection Agency (“EPA”) appears to be making steps toward more successful and more efficient negotiation of remedial design (“RD”)/remedial action (“RA”) settlements in Superfund cases. EPA recently released its Revised Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations (“the Negotiation Policy”) and Transmittal of Updated Superfund Response and Settlement Approach for Sites Using the Superfund Alternative Approach (“Alternative Approach”).

Another Edition of “No Addition”: Supreme Court Applies Precedent to Confirm Plaintiffs’ Concession That Movement of Water Within River Channel Was Not a “Discharge”

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Posted in Environmental and Green Issues

On January 10, 2013

The answer you get depends on the question you ask. That’s the take-home lesson from the Supreme Court’s decision in Los Angeles Flood Control District v. Natural Resources Defense Council. All parties agreed on the answer to the specific question on which the Court granted certiorari. The Court, applying its own 2004 precedent, said they were correct — there was no “discharge” that violated the District’s permit because the flows in question simply went from one part of the same river system to another. The Court never reached the alternative ground for liability urged by the plaintiffs because it went beyond that narrow question. The result? A reversal and a win for the District on essentially procedural grounds.

Transitioning New Jersey to Alternative Energy Vehicles

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Posted in Environmental and Green Issues

On December 26, 2012

An article published last year entitled, “NJ Charges Forward with Electric Vehicle Network,” discussed the concerted efforts of New Jersey and several other states to develop a Northeast Electric Vehicle Network and promote alternative transportation fuels. The goal of this project is to encourage economic growth, maintain the region’s leadership in the area of clean energy, and reduce the region’s dependence on oil. Toward that end, two bills were recently introduced in the New Jersey State Legislature that would provide further incentive for New Jersey drivers to make the transition to alternative energy vehicles.

New York State Again Defers Decisions Regarding Hydraulic Fracturing

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Posted in Environmental and Green Issues

On December 21, 2012

On November 28, 2012, New York State confirmed that its health assessment of the proposed regulations governing hydraulic fracturing, also known as “fracking,” being conducted by a panel of three leading public health experts, would be delayed. Immediately thereafter, the State’s Department of Environmental Conservation (“NYSDEC”) filed for a 90-day extension of the November 29, 2012, regulatory deadline for finalizing fracking regulations.

Opening the Flood Gates?: U.S. Supreme Court Holds That Takings Clause Covers Temporary Flooding

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Posted in Environmental and Green Issues

On December 12, 2012

When government actions cause flooding of your land, does it constitute a “taking” that triggers the Fifth Amendment’s requirement of “just compensation?” Supreme Court precedent dating back to 1872 teaches that when the flooding is permanent, such as when a new dam creates a lake, a compensable taking has occurred. But what if the flooding is only temporary? Can that constitute a taking? The Federal Circuit said, “Never.” In Arkansas Game and Fish Commission v. United States, the Supreme Court disagreed, and said, “Sometimes.”

Gibbons Director David Freeman Reelected President of the New York City Brownfield Partnership

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 30, 2012

David J. Freeman, a Director in the Real Property & Environmental Department of Gibbons P.C., has been unanimously reelected to a second term as president of the New York City Brownfield Partnership, a public/private nonprofit organization dedicated to promoting the cleanup and redevelopment of brownfields in New York City. The Partnership is a member organization of more than 40 real estate developers and owners, community organizations, governmental agencies, and environmental professionals who are active on brownfield matters.

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