Category: Environmental and Green Issues

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...

Gibbons Environmental Law Department Congratulates Former Director Shawn LaTourette on Being Named NJDEP Acting Commissioner

The Gibbons Environmental Law Department proudly congratulates former Director Shawn LaTourette on his being named Acting Commissioner of the New Jersey Department of Environmental Protection (NJDEP) by Governor Murphy. Shawn joined the Gibbons Environmental Law Department as an associate in 2015 where he was provided with a supportive platform on which to develop and expand his legal and environmental skills. Recognizing his significant talent, Gibbons elevated him to Director in 2018. Shortly thereafter, he was tapped to serve as Chief Counsel for the NJDEP. During his time at Gibbons, he was an integral part of the Environmental Law Department where he worked on complex environmental litigation matters under the New Jersey Spill Compensation and Control Act and the federal Comprehensive Environmental Response, Compensation, and Liability Act, as well as other significant litigation matters involving contract and common law claims between private parties. He also represented clients in cutting-edge permitting and regulatory compliance matters, and on brownfields redevelopment projects. “We are extremely proud of Shawn, and we are glad that our department was able to enhance his development as an environmental attorney such that he has been able to succeed so profoundly in public service,” said Camille V. Otero, Director and Chair of the Gibbons Environmental Law Department. “Shawn was a vital part of our Department’s...

Former Gibbons Director Shawn LaTourette Named NJDEP Acting Commissioner

Shawn LaTourette, formerly a Director in the Environmental Department at Gibbons P.C., has been named Acting Commissioner of the New Jersey Department of Environmental Protection (NJDEP), as announced by New Jersey Governor Murphy earlier today. Mr. LaTourette previously served as NJDEP Chief Counsel. Mr. LaTourette joined Gibbons in 2015 as an associate and was promoted to Director in 2018, prior to joining the NJDEP. At Gibbons, his practice focused on environmental and closely related legal fields, in both litigation and transactional settings involving environmental conditions, land use, and development. He helped clients across various industries manage compliance with and enforcement of state and federal environmental and land use laws, including their application to commercial, real estate, construction, and infrastructure transactions. At Gibbons, Mr. LaTourette was the firm’s go-to lawyer to handle all environmental aspects of our clients’ real property acquisitions, developments and redevelopments, and construction projects, which included some of the most high-profile real estate, construction, and infrastructure matters in New Jersey. “When he was here, all of us at Gibbons recognized that Shawn was a rising leader in the environmental bar in New Jersey and throughout the region,” said Patrick C. Dunican Jr., Chairman and Managing Director of the firm. “We are delighted to congratulate him on proving us right.” For an article on...

USEPA Provides Draft Guidance on Application of “Functional Equivalent” Analysis for Clean Water Act Permitting Program

The United States Environmental Protection Agency (USEPA) issued a Draft Guidance Memorandum regarding how to apply the Supreme Court’s most recent Clean Water Act decision in County of Maui v. Hawaii Wildlife Fund from earlier this year. In that case (which we previously wrote about here and here), the Court held that the Clean Water Act Section 402 National Pollutant Discharge Elimination System (NPDES) program requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” As the USEPA draft guidance notes, the Court’s decision outlines “seven non-exclusive factors that regulators and the regulated community may consider in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. The draft guidance aims to place the functional equivalent standard “into context within existing NPDES permitting framework.” Additionally, the draft guidance “identifies an additional factor” relevant to the analysis. The draft guidance emphasizes that the County of Maui decision did not modify the two threshold conditions that trigger the requirements for a permit. These conditions are that there must be an actual discharge of a pollutant to a water of the United States, and that that discharge must be from a point source. “Instead, Maui clarified that an NPDES permit is required for only...

David J. Freeman to Co-Chair N.Y. State Bar Superfund and Brownfields Update Webinar

David J. Freeman, a Director in the Gibbons Environmental Department, will serve as Program Co-Chair for “Superfund/Brownfield Update 2020: Federal and State Environmental Law and Policy.” The program is sponsored by the Section of Environmental & Energy Law of the New York State Bar Association and will be presented as a webinar on December 2 from 9:00 a.m. to 2:30 p.m. The program will feature presentations by representatives of the U.S. Environmental Protection Agency, the New York State Department of Environmental Conservation, the New York Attorney General’s Office, and private bar and expert consultants regarding recent developments in the federal Superfund and New York State Brownfield programs. There will also be panels discussing the proposed new ASTM standards for the conduct of Phase I environmental site assessments and the operation of New York State’s land banks. The keynote speaker will be Julie Tighe, President of the New York League of Conservation Voters and New York League of Conservation Voters Education Fund. Her timely topic will be “How the 2020 Election Will Affect the Environmental Agenda at the Federal and State Levels.” A full description of the program, and instructions on how to register, can be found here.

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.

Jordan Asch to Participate in Upcoming NJSBA Panel Discussion – “Resolving Everyday Environmental Problems” – November 5

Jordan M. Asch, an Associate in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by the New Jersey State Bar Association, in cooperation with its Environmental Law Section. The panel, “Resolving Everyday Environmental Problems,” will take place virtually on Thursday, November 5 from 9:00 – 10:30 am. The discussion will cover some of the complex, and often expensive, environmental issues that small businesses and homeowners may face, including site remediation issues, funding sources, environmental permitting, and the permitting process. Attorneys who represent small business owners that own or lease real property, or that may develop or improve real property, as well as homeowners that may face environmental remediation or permitting issues are encouraged to attend. 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...

That Mine Is Yours, Not Theirs: Ninth Circuit Holds That WWII Shutdown Order Did Not Make Federal Government the CERCLA “Operator” of California Gold Mine

One perennially vexing issue for federal courts in cases brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law, is what makes someone an “operator” of a facility, and thus strictly (and, in most cases, jointly and severally) liable for cleanup costs. In particular, what degree and nature of control over a facility exercised by the government make it an operator? (We recently blogged on this issue.) In its recent decision in United States v. Sterling Centrecorp Inc., a divided panel of the Ninth Circuit held that a World War II-era federal order that shut down a gold mine in California did not give the government sufficient control over the operations of the mine to make it a CERCLA operator. Upon entering World War II, the United States faced a serious shortage of nonferrous metals, especially copper, and a corresponding shortage of the machinery and materials needed to produce them. Scarce resources needed to be redirected from nonessential operations to essential ones, and gold mines, such as the Lava Cap mine in Nevada County, California, were deemed nonessential. An order of the War Production Board required the mine to cease operations in 1943. While the order was revoked in 1945, operations at the mine never resumed. It was...

Insurer Alleges Pollution Policy Void Because of Policyholder’s Failure to Disclose

AIG Specialty Insurance Co. (“AIG”) recently asserted in a New Jersey Federal District Court Complaint that it owes no coverage to Thermo Fisher Scientific Inc. (“Thermo Fisher”) for cleanup costs associated with contaminated groundwater at a facility owned by Thermo Fisher in Fair Lawn, New Jersey. The crux of AIG’s claim is the fact that Thermo Fisher failed to disclose to AIG that the company had been monitoring groundwater pollution at its site for nearly three decades. AIG alleges the existence of two consent orders relating to groundwater contamination at the site and, more specifically, the presence of PFAS, so-called “forever chemicals” detected in a wellfield affected by the site. Both of these consent orders were in existence when Thermo Fisher sought a pollution liability policy with AIG. AIG asserts that Thermo Fisher either knew or should have known about the groundwater pollution conditions at its facility and the claims against the facility by the United States Environmental Protection Agency (“EPA”) prior to seeking the pollution liability policy at issue, facts that should have been disclosed in the application. AIG alleges that Thermo Fisher’s failure to disclose these consent orders and the fact that the Thermo Fisher plant was part of a Superfund site is sufficient to trigger a number of exclusions in the pollution...