Gibbons Law Alert

Gibbons Law Alert

Tagged: Environmental & Green Issues

NY Court Denies Summary Judgment in Seemingly Clear-Cut Case Under NY Navigation Law

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Posted in Environmental and Green Issues

On August 6, 2012

An upstate Supreme Court Justice has denied summary judgment on liability under Section 181 of the state’s Navigation Law against a company whose predecessor owned and operated a petroleum refinery on the site for almost 60 years. The decision in One Flint Street LLC v. Exxon Mobil Corp, et al., Index No. 2011/4470 (July 18, 2012, Monroe Co. Sup. Ct.) establishes a high bar for obtaining summary judgment in Nav Law cases.

Significant Amendments to New York’s SEQRA Regulations in the Works

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Posted in Development/Redevelopment / Environmental and Green Issues

On July 25, 2012

On July 11, the New York State Department of Environmental Conservation (NYSDEC) released the draft scope for the Generic Environmental Impact Statement (GEIS) on proposed amendments to the regulations that implement the State Environmental Quality Review Act (SEQRA). These amendments, intended to streamline the SEQRA process, would create a number of significant changes to the regulations, the first changes since 1996.

Gibbons Real Property & Environmental Department Adds David Freeman to the New York Office

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Posted in Development/Redevelopment / Environmental and Green Issues

On July 16, 2012

David J. Freeman, formerly head of the Environmental Practice Group at the New York City office of Paul Hastings, has joined Gibbons P.C.’s New York office as a Director in the Real Property & Environmental Department. Mr. Freeman represents the buyers, sellers, and developers of properties in all environmental law areas including brownfields, due diligence, hazardous waste cleanups, and sustainability. He also litigates matters related to remediation, cost recovery, property damage, and exposure to toxic substances.

Texas Federal Court Splits Environmental Claims: CERCLA Claims Remain in Federal Court, State Claims are Remanded to State Court

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Posted in Environmental and Green Issues

On June 29, 2012

The United States District Court for the Southern District of Texas in May v. Apache Corporation, 2012 WL 156547 (S.D.Tex. May 1, 2012) issued an interesting decision on the relationship between federal and state environmental claims and where they can be heard. The case has some parallels to a case pending in the New Jersey State court captioned the New Jersey Department of Environmental Protection v. Occidental Chemical Corp., et als.

Industry Report Criticizes EPA Fracking Study for Poor Design, Insufficient Data

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Posted in Environmental and Green Issues

On May 23, 2012

As we reported this past December and January, last year the U.S. Environmental Protection Agency (EPA) released a draft report that linked contamination found in wells near Pavillion, Wyoming to the practice of hydraulic fracturing, or fracking. A report prepared for an oil and gas industry group, however, says the EPA study was deeply flawed.

Clean it Up New York Landlords – Tenants May Have a Toxic Mold Case Against You

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Posted in Environmental and Green Issues

On May 21, 2012

For several years, landlords in New York have defended against personal injury liability for mold, arguing that Fraser v. 301-52 Townhouse Corp., 870 N.Y.S.2d 266 (2008), established a categorical rule that epidemiological studies were insufficient to support a finding of causation for respiratory illnesses. In a recent Appellate Division decision, Cornell v. 360 West 51st Street Realty, LLC, 939 N.Y.S.2d 434 (App. Div. 2012), the Court clarified Fraser and held that the scientific evidence in each case should be evaluated under the Frye test, thus opening the door to mold cases.

Final ARRCS Rules Adoption Published in NJ Register

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Posted in Environmental and Green Issues

On May 7, 2012

To fully implement the Site Remediation Reform Act, the New Jersey Department of Environmental Protection (NJDEP) has published a notice of adoption of amendments to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS rules), N.J.A.C. 7:26C in the New Jersey Register today, May 7, 2012. This adoption also amends several other rules related to site remediation in New Jersey, including the repeal and replacement of the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and amendments to the Industrial Site Recovery Act rules, N.J.A.C. 7:26B. This rule adoption is concurrent with the final May 7, 2012 deadline for almost all remediating parties to engage a Licensed Site Remediation Professional to conduct remediations in NJ.

Cause for Concern? NJDEP to Score Contaminated Sites Under the Remedial Priority Scoring System

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Posted in Environmental and Green Issues

On April 18, 2012

The New Jersey Department of Environmental Protection (“NJDEP”) will soon release scores for contaminated properties pursuant to the Remedial Priority Scoring (“RPS”) system. The RPS system was mandated by the Spill Compensation and Control Act (N.J.S.A. 58:10-23.16) as amended by the Site Remediation Reform Act (“SRRA”). Under the statute, the factors that NJDEP may consider in ranking the sites include: the level of risk to the public health, safety, or the environment; the length of time the site has been undergoing remediation; the economic impact of the contaminated site on the municipality and on surrounding property; and any other factors deemed relevant by the NJDEP.

Groups Sue NJDEP to Block Waiver Rule

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Posted in Environmental and Green Issues

On March 28, 2012

As we recently reported, the New Jersey Department of Environmental Protection (NJDEP) announced on March 8 that it had finalized a new waiver rule that will permit the department to relax environmental rules in certain limited circumstances. It took a coalition of environmental and labor groups just two weeks to file a lawsuit challenging the new rule.

Unanimous Supreme Court Allows Pre-Enforcement Review of Clean Water Act Compliance Orders

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Posted in Environmental and Green Issues

On March 26, 2012

The U.S. Supreme Court unanimously held on March 21 that an Idaho couple who had received a compliance order from the U.S. Environmental Protection Agency (EPA) for allegedly illegal filling of wetlands could directly challenge the order in court, and did not have to wait until EPA filed a lawsuit to enforce the order in court before obtaining judicial review of its validity. The opinion completely changes the rules of the game in EPA’s enforcement of the Clean Water Act, and gives landowners a powerful new tool to dispute what they see as erroneous EPA determinations.

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