Author: Gibbons P.C.

Back to the Future, or Forward to the Past? EPA and Army Corps of Engineers Release New Clean Water Act New Rule Revising Definition of “Waters of the United States”

Ever since the enactment in 1972 of the modern Clean Water Act (a comprehensive amendment of the 1948 Federal Water Pollution Control Act), courts, agencies, and landowners have struggled to define the statute’s geographic scope, especially with respect to wetlands, which do not fit neatly within familiar notions of “water” or “land.” Landowners often confront this issue because the statute prohibits unpermitted discharges of pollutants (including fill material) into “navigable waters,” but defines that term broadly as “the waters of the United States, including the territorial seas,” which includes some, but not all, areas that scientists would deem to be wetlands. In December, the U.S. Environmental Protection (EPA) and the U.S. Army Corps of Engineers (Corps) released the latest chapter in this five-decade-long saga, in the form of a new 514-page rule defining “waters of the United States” (WOTUS). The rule was officially promulgated via publication in the Federal Register on January 18, and will become effective 60 days later. The new WOTUS rule is the product of a rulemaking process spurred by a January 2021 executive order signed by President Biden that directed all agencies to review regulations and take appropriate action to address those that might conflict with policies of science-based decision-making. (86 Fed. Reg. 7037 (Jan. 25, 2021)). It replaces the Trump...

No, That Doesn’t Settle It: U.S. Supreme Court Clarifies Which Types of Settlements Trigger CERCLA Contribution Rights

The complex and overlapping nature of the three different routes to recovering cleanup costs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) has bedeviled courts for decades. This month, in Territory of Guam v. United States, the U.S. Supreme Court answered one very narrow question: What kind of a settlement with the government gives a settling party the right to bring an action for contribution against a non-settlor?

NJDEP Amends Site Remediation Standards

Via a New Jersey Register notice published on May 17, 2021, the New Jersey Department of Environmental Protection (NJDEP) has amended the remediation standards that govern all cleanups in the state. It is the most sweeping revision of the standards since they were first adopted in 2008. NJDEP proposed the amendments in April 2020 and held a virtual public hearing on July 21, 2020. During an extended public comment period, NJDEP received more than 270 public comments on its proposal. The proposal itself was preceded by a series of stakeholder sessions stretching back to 2014. The rulemaking makes significant changes to the remediation standards, including: The creation of separate residential and non-residential soil remediation standards for the ingestion-dermal and inhalation exposure pathways; formerly, the applicable standard was the more stringent of the two, but now both pathways will need to be considered. The adoption of new soil remediation standards for the migration to groundwater exposure pathway, replacing the former site-specific approach based on NJDEP guidance with enforceable standards. The adoption of new standards for soil leachate (for the migration to groundwater exposure pathway) and indoor air (for the vapor intrusion exposure pathway); the vapor intrusion standards replace the former screening levels based on NJDEP guidance. The tightening of some standards and the loosening of others....

Show Me the Study: New Jersey Appellate Division Reverses Verdict in Talcum Powder Tort Case Because Causation Testimony of Plaintiffs’ Experts Had No Scientific Basis

Whether in environmental litigation (as we reported here) or in tort cases, expert testimony is often required to explain complex scientific concepts and, crucially, to establish a causal connection between exposure to a given substance and an adverse health or environmental effect. In its recent decision in Lanzo v. Cyprus Amax Minerals Company, the New Jersey Appellate Division reminded litigants of the importance of the court’s “gatekeeping” function when it tossed out a nine-figure judgment because the trial court had admitted testimony from the plaintiffs’ experts that lacked a proper scientific basis. The appellate court also held that the trial court had erred when it denied the motion for a separate trial of one defendant who was likely harmed by an adverse inference instruction that was required because of another defendant’s spoliation of important evidence. The plaintiffs, a husband and wife, had sued Johnson & Johnson Consumer Inc. (JJCI), Imerys Talc America, Inc. (Imerys), and a large number of other defendants in 2016, alleging that the husband had contracted mesothelioma from his use of JJCI’s talcum powder products. Imerys had acquired a business that supplied talc to JJCI in 2011. The key issues in the case were whether the talc used by JJCI contained asbestos, which is known to cause mesothelioma, and whether certain other...

Sez Who? Appellate Division Questions Expert’s Qualifications to Testify in Spill Act Case

New Jersey’s Spill Compensation and Control Act (“Spill Act”) makes dischargers of hazardous substances, as well as persons “in any way responsible” for the discharged hazardous substances, liable in contribution to a person who remediates the discharge. Since the statute’s enactment in 1976, courts have often been called on to define limits on the category of parties who can be held responsible, especially the vague sub-category of persons “in any way responsible.” In its recent unpublished decision in Dorrell v. Woodruff Energy, Inc., the Appellate Division held that a supplier could not be held liable as a person “in any way responsible” simply for delivering fuel to the site in question. Reviewing the evidence presented in the trial court about another defendant’s potential liability, the court provided important guidance for both plaintiffs and defendants on the appropriate role of expert witnesses in Spill Act cases. The plaintiff, Sandra Dorrell, owned a store in Alloway Township. When she sought to sell the property, she discovered petroleum contamination in the soil and groundwater. She filed suit in 2011 to seek contribution from the parties she considered responsible for the contamination: Woodruff Energy, Inc. (“Woodruff”), Gulf Oil Limited Partnership (“Gulf”), and Chevron U.S.A. Inc. (“Chevron”), Gulf’s successor. The case had been to the Appellate Division once already, resulting...

NJDEP Continues Environmental Justice Rulemaking Process With Second Stakeholders Meeting

As we previously reported, the New Jersey Department of Environmental Protection (NJDEP) has embarked on a robust process for soliciting public input on the regulations it will propose to implement in the state’s landmark environmental justice law, which was enacted last year (and which will not become effective until NJDEP promulgates its regulations). The first meeting was held remotely on October 22, 2020. The process goes well beyond the normal notice-and-comment rulemaking procedure and offers members of the public and the regulated community an unusually broad set of options for submitting their views to the NJDEP. Under the new statute, a company seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope and are located in overburdened communities must prepare an “environmental justice impact statement” and provide for expanded public hearings on its project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility will cause a disproportionate impact on the affected community. If NJDEP makes such a finding, it must deny the application if it seeks a new permit (unless the facility addresses a “compelling public interest” in the community) or impose extra conditions if the application seeks a permit renewal or...

Roll-Out of COVID-19 Vaccines in New Jersey

Pharmaceutical innovation has positioned the world to witness the beginning of the largest vaccination effort that humankind has ever seen. Vaccine doses for COVID-19 are arriving in New Jersey this week, and the first doses will be injected in the arms of frontline healthcare workers and seniors by the close of business today in Newark’s largest hospital. More important than today’s historic event, the current New Jersey plan to vaccinate 70 percent of the Garden State’s current eligible population is worth reviewing. As the COVID-19 vaccines roll out, New Jersey plans to follow the Phased Approach framework crafted by the Centers for Disease Control and Prevention (CDC). Under the CDC’s framework, the initial wave of vaccines will be administered first to healthcare personnel. More specifically, Phase 1A of New Jersey’s COVID-19 vaccination plan will include “any paid or unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients or infectious materials and are unable to work from home.” Examples of workers within healthcare settings who are eligible to receive COVID-19 vaccinations during Phase 1A include, but are not limited to: Licensed healthcare professionals, such as doctors, nurses, pharmacists, and dentists; Healthcare staff, including receptionists, janitors, clergy, mortuary services, and laboratory technicians; Consultants and per diem contractors who are...

Gibbons Attains National and Regional Rankings in 2021 Best Law Firms

Gibbons is proud to announce that 35 of the firm’s practice areas have achieved national and metropolitan recognition in the 2021 edition of U.S. News – Best Lawyers® “Best Law Firms.” The firm also earned numerous national rankings this year, placing in the second two national tiers in the categories of: Construction Law Employment Law – Management Land Use & Zoning Law Litigation – First Amendment Real Estate Law We also earned our highest number of National Tier 1 rankings ever, in the categories of: Environmental Law Litigation – Construction Mass Tort Litigation/Class Actions – Defendants “Gibbons continues to evolve and adapt our legal services to anticipate the future needs of our clients,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “The recognition of our practice areas on both the national and regional levels reaffirms that excellent client service and legal work are firm-wide commitments.” The firm’s regional practice area rankings include: New Jersey Regional Rankings Appellate Practice Banking and Finance Law Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law Bet-the-Company Litigation Commercial Litigation Construction Law Corporate Law Corporate Compliance Law Criminal Defense – White Collar Employee Benefits (ERISA) Law Employment Law – Management Environmental Law First Amendment Law Government Relations Practice Health Care Law Insurance Law Land Use & Zoning Law...

William Hatfield to Participate in Upcoming Strafford Webinar – “Practical Tips and Lessons Learned for Asserting Divisibility in CERCLA Litigation in Federal Court” – November 19

William S. Hatfield, a Director in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by Strafford. The panel, “Practical Tips and Lessons Learned for Asserting Divisibility in CERCLA Litigation in Federal Court,” will take place virtually on Thursday, November 19 from 1:00 – 2:30 pm ET. The panel will analyze how recent court decisions have addressed divisibility and apportionment in CERCLA litigation. Panelists will also guide environmental counsel and professionals on when and how the divisibility of harm defense is appropriate, offer practical tips, and discuss the legal and technical challenges in establishing divisibility. The discussion will be interactive, allowing for questions and answers, and CLE credits will be offered. For additional information or to register, click here.

NJDEP Solicits Input as It Begins Process of Drafting Regulations to Implement Landmark Environmental Justice Legislation

As we reported, New Jersey Governor Phil Murphy recently signed the nation’s first environmental justice law, which seeks to address the unfair distribution of the environmental and public health impacts of polluting activities by imposing additional requirements on parties seeking to site, expand, or renew permits for various types of facilities in “overburdened communities,” which are defined in the statute in terms of economic and demographic criteria. The statute requires the New Jersey Department of Environmental Protection (NJDEP) to promulgate regulations to implement its requirements. NJDEP began the public process of developing those regulations on October 22 when Olivia Glenn, Deputy Commissioner for Environmental Justice and Equity, and Sean Moriarty, Chief Advisor for Regulatory Affairs, hosted an online public information session in which they sought the public’s input on how the regulations should address numerous definitional and procedural issues. (The statute will not take effect until NJDEP promulgates its regulations.) Companies seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope and are located in overburdened communities must prepare an “environmental justice impact statement” and provide for expanded public hearings on their project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility...