Category: Environmental and Green Issues

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 In its recent unpublished decision in Dorrell v. Woodruff Energy, Inc., the Appellate Division held that a supplier could not be held liable as a person “in any way responsible” simply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 Extends Some Deadlines for Remediation Activities

In light of the disruptions created by the COVID-19 pandemic, the New Jersey Department of Environmental Protection (NJDEP) has again extended certain deadlines (or, in the language of the relevant statutes and regulations, timeframes) for the completion of various remediation activities at contaminated sites. On February 1, 2021, NJDEP issued a Notice of Rule Waiver/Modification/Suspension pursuant to Executive Order No. 103, which was issued on March 9, 2020. It follows similar notices issued on April 24, 2020 and August 17, 2020. The new notice extends some regulatory and mandatory timeframes reached during the effective period of Executive Order 103 for a total of 455 days (including the prior 270-day extensions), with corresponding extensions of subsequent timeframes. For remediations subject to the statutory timeframes in N.J.S.A. 58:10C-27 and -27.1, requiring completion of the remedial investigation by May 7, 2014 or May 7, 2016, it extends the timeframe for completing the remedial action from May 6, 2021 to May 6, 2022. Parties seeking to benefit from the extensions must have retained a licensed site remediation professional (LSRP). While surely not among the most significant effects of the pandemic, these changes in remediation timeframes are among the hardest to follow. Parties conducting (or even simply monitoring) remediation projects, their counsel, and their LSRPs would do well to keep...

Thomson West Releases 2020-2021 Update of Business Law Deskbook, With Two Environmental Law Chapters Authored By Gibbons Attorney

The recently released 2020-2021 update of the Thomson West New Jersey Business Law Deskbook includes chapters authored by Paul M. Hauge, Counsel in the Gibbons P.C. Environmental Law Department. Mr. Hauge authored Chapter 26, which discusses the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and Chapter 27, on New Jersey Environmental Law. The Deskbook, updated annually to reflect statutory, regulatory, and judicial developments, is designed to give attorneys user-friendly primers on roughly 40 areas of business law. Gibbons Environmental Law Department Director Susanne Peticolas pioneered the firm’s involvement with the Deskbook in 2003, authoring the Gibbons contributions until 2007 and sharing authorship with Mr. Hauge between 2008 and 2019.

NYSDEC Commissioner Directs Agency to Investigate PFAS Contamination in Consumer Products

New York State Department of Environmental Conservation (NYSDEC) Commissioner, Basil Seggos, announced last week that he is directing the Department to conduct a new investigation of potential per- and polyfluoroalkyl substances (“PFAS”) contamination in consumer products. PFAS have been designated as chemicals of emerging concern by the U.S. Environmental Protection Agency (EPA). Specifically, Commissioner Seggos has directed the Department to “take a hard look at new science shared by the U.S. Environmental Protection Agency about potential PFAS contamination in consumer products, including insecticides, pesticides, and other crop protectant products packaged in fluorinated high-density polyethylene (‘HDPE’) containers.” Earlier this month, the EPA had issued a press release that stated, “the agency has determined that fluorinated HDPE containers that are used to store and transport a mosquito control pesticide product contain PFAS compounds that are leaching into the pesticide product.” The EPA press release that triggered the Commissioner’s directive announced the EPA’s investigation into companies that use fluorinated containers and companies that provide container fluorination services, in an effort to identify potential sources of contamination. The directive from Commissioner Seggos is the latest in a line of actions taken by New York to address PFAS contamination, including a statewide investigation of potential sources of PFAS and the establishment of drinking water maximum contaminant levels for two PFAS...

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.