Author: Adam C. Arnold

New Policy From DOJ Offers Predictability and Incentives to Self-Report Misconduct

Representatives of the United States Attorney’s Office (USAO) announced on February 22, 2023, the immediate implementation of a new Voluntary Self-Disclosure Policy. This new policy was created in response to a September 2022 memorandum from the Deputy Attorney General, which requested that each component of the Department of Justice (DOJ) review its policies on corporate voluntary self-disclosure and revise or create a formal written policy that incentivizes such self-disclosure. The stated intention of the new policy is to provide transparency and predictability to companies and the defense bar concerning the benefits, and potential outcomes, in cases where companies voluntarily self-disclose misconduct, fully cooperate with the government, and remediate the misconduct in a timely and appropriate manner. In general, the policy requires that: (1) the disclosure of misconduct is made voluntarily (not to include instances where there is a pre-existing obligation to disclose, e.g., by regulation or contract); (2) the disclosure be made prior to an imminent threat of disclosure, prior to the misconduct being publicly disclosed, and within a reasonably prompt time after the company becomes aware of the misconduct; and (3) the disclosure includes all relevant facts concerning the misconduct that are known to the company. The incentives created by this new policy are significant and include the following: Absent the presence of aggravating...

EPA Amending Standards for Phase 1 Environmental Site Assessments

The United States Environmental Protection Agency (USEPA) is set to amend the All Appropriate Inquiries Rule (AAI Rule), the standard for evaluating a property’s environmental conditions prior to purchase, which may impact a purchaser’s potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for any contamination discovered at the property. Those affected by this amendment include both public and private parties who are purchasing potentially contaminated properties and wish to establish a limitation on CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent landowners. In addition, any entity conducting a site characterization or assessment on a property with funding from a brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii) may be affected by this action. The AAI Rule first went into effect in 2006 and has been subject to amendments since that time. The current amendments will become effective on February 13, 2023, and will reference a new standard – “ASTM E1527-21” – that may be used to satisfy the requirements for conducting all appropriate inquiries under CERCLA. Significant changes within the new standard include, but are not limited to: Revised and new definitions to make requirements clearer than the prior 2013 standard Requirements for more specific information related to the subject property’s use, as well as historical research related...

New Jersey Governor Signs Environmental Justice Legislation

On September 18, 2020, New Jersey Governor Phil Murphy signed legislation intended to address the disproportionate environmental and public health impacts of pollution on overburdened communities. The legislation, versions of which have been proposed several times over the past decade, imposes additional requirements on companies seeking permits for new or expanded facilities under a variety of environmental statutes. It also requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate how the proposed permitted activities would impact those communities determined to be “overburdened” under the new law. Earlier this summer, marking the “Juneteenth” anniversary of the emancipation of slaves in the United States, Governor Murphy had indicated his support for the legislation, which some environmental advocates have dubbed the “holy grail” of the environmental justice movement. Although critics of the law raised concerns about its effect on manufacturing and business investment in New Jersey, the bill passed the state legislature in late August, with votes of 49-28-1 in the state Assembly and 21-14 in the state Senate. The types of facilities covered by the new law include certain power plants, incinerators, sewage treatment plants, solid waste facilities, and landfills, as well as other facilities deemed to be “major sources of air pollution” (as determined by the federal Clean Air Act). Governor Murphy stated that,...

NJ Governor Supports Additional NJDEP Permitting Requirements to Address Environmental Justice Concerns

On June 19, 2020, Governor Murphy announced his support for proposed legislation that would require the New Jersey Department of Environmental Protection (NJDEP), and permit applicants, to take additional steps prior to permits being issued for new or expanded facilities under a wide variety of state environmental statutes. The proposed legislation, which aims to protect those communities that historically have been most impacted by pollution from industrial and related activities, would require the NJDEP to publish and maintain a list of those communities determined to be “overburdened.” In the proposed legislation, “overburdened community” is defined as: “any census block group, as determined in accordance with the most recent United States Census, in which at least one half of the households qualify as low income households, and either: (1) at least 40 percent of the residents of the census block group identify as Black, African American, Hispanic or Latino, or as members of a State-recognized tribal community; or (2) at least 40 percent of the households in the census block group have limited English proficiency.” Prior to approval of covered permit applications, an applicant would be required to assess and prepare an environmental impact statement to outline both the existing environmental and health stressors already borne by the relevant community, as well as any additional impacts...

Plaintiffs Must Cast a Wide Net for Spill Act Claims

The New Jersey Appellate Division has applied the doctrine of judicial estoppel to uphold the dismissal of a Spill Act contribution action on the grounds that the plaintiffs failed to seek contribution from all potentially responsible parties that were known (or reasonably knowable) in an earlier action. The court ruled that the application of judicial estoppel in the case before it was consistent with the Spill Act’s objective to cast a wide net over those responsible for hazardous substances and their discharge on the land and waters of the state. “Plaintiffs are precluded from floating a lazy cast toward one discharger and then shooting a second line toward others, seeking contribution for cleanup of the same property.” The plaintiffs in Terranova v. Gen. Elec. Pension Trust (Docket No. A-5699-16T3), owners of commercial property that had long been used as a gas station, brought this action in 2015. The defendants were owners/operators of the property from 1960 through 1980, during which time soil and groundwater at the property had allegedly been contaminated by three underground storage tanks. Of consequence to the court’s decision, the plaintiffs had previously filed an action in 2010 against two separate individuals that had operated the gas station from 1981 through 2008, but the plaintiffs had failed to assert claims against the current defendants...

All in the Family: N.J. Appellate Division Holds That Status of Pre-1983 Purchaser as “Innocent Party” Applied to Current Owner Despite Property Transfers Among Family Members Via Trusts

Reversing the denial of an application for an “innocent party” grant, the New Jersey Appellate Division recently held in an unpublished opinion, Cedar Knolls 2006, LLC v. New Jersey Department of Environmental Protection, that property transfers among family members, even through the use of trusts, are not “changes of ownership.” Thus, a corporation that acquired a parcel of land in 2006 was eligible to seek an “innocent party” grant that is available only to pre-1983 transferees because the property had remained within the same family since its original acquisition in 1977. The property at issue was originally acquired in 1977 by Robert Higginson, well before the December 31, 1983 cutoff for eligibility as an “innocent party” under New Jersey law. Upon his death 16 years later, he bequeathed the property to his wife through two 50% shares placed into separate trusts. His wife then assigned her shares in the property to two new trusts. The interests of those trusts in the property were subsequently transferred to their son, who created a new entity, Cedar Knolls 2006, LLC, to which he transferred the two 50% shares, making Cedar Knolls the sole owner of the property. Nine years later, Cedar Knolls applied for an innocent party grant to cover the costs of remediating the property. NJDEP denied the...

The Third Circuit Parts Ways with the Second Circuit When it Comes to Contribution Rights Under CERCLA

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”).

New Report Considers Options For Tweaking Brownfields Programs in NY

New York State was among the first to enact programs aimed at remediation and redevelopment of contaminated sites. The goal of such programs is both to promote economic revitalization and to encourage private entities to remediate the state’s contaminated sites. Three such programs, the Voluntary Cleanup Program (“VCP”), the Environmental Restoration Program (ERP), and the Brownfield Cleanup Program (“BCP”), have achieved considerable success, with over 400 sites having been remediated in the past two decades. Nevertheless, policy makers continue to search for ways to make these programs better and more cost efficient. Prompted by the impending expiration of key provisions of the BCP, a report released by the New York State Comptroller’s office in April 2013, provides an assessment of these programs, as well as some options for improvement going forward.

More Streamlining of Permit Procedures for Rebuilding After Superstorm Sandy

A recent news release on the NJDEP website discusses new efforts by the Christie Administration to streamline vital rebuilding projects necessitated by the destruction caused by Superstorm Sandy. The new rules, which were adopted on an emergency basis on April 16th, are intended to eliminate some of the red tape typically associated with permit procedures, while ensuring the protection of coastal resources and encouraging the rebuilding of a more resilient New Jersey coastline. This is just the latest action taken by the Governor and NJDEP to ease the burden on residents, businesses and municipalities seeking to rebuild. Beginning as early as five days after the storm swept through New Jersey, actions were already being taken to waive permitting requirements for those rebuilding vital infrastructure such as roads and bridges. More recently, the Christie Administration adopted a streamlined process for property owners wanting to rebuild to new elevation standards in flood zones.

Raising Standards for Rebuilding After Sandy

For the first time in more than two decades, the Federal Emergency Management Agency (“FEMA”) has updated its Advisory Base Flood Elevation (“ABFE”) maps for New Jersey’s coastal counties. The Christie Administration adopted these new standards as an emergency measure on January 24, 2013, and through formal NJDEP regulations, has now made them permanent. The revised FEMA elevations, which remain subject to change, are anywhere from two to four feet higher on average than the standards that had been in effect prior to Hurricane Sandy. New Jersey residents, particularly those impacted by flooding from Hurricane Sandy, should be aware of this change, as the NJDEP has incorporated these revised maps as the new standard throughout the state for the elevation of reconstructed homes in flood zones.