Tagged: Environmental & Green Issues

May 14, 2014 Remedial Investigation Deadline Approaching for Discharges Discovered Prior to May 7, 1999

Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment.

May 7, 2014 Remedial Investigation Deadline Approaching for Discharges Discovered Prior to May 7, 1999

Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment.

“Removal vs. Remedial Action? – That is the Question” Second Circuit Answers “Removal” and Vacates District Court’s Grant of Dismissal on CERCLA Statute of Limitations Grounds in State of New York v. Next Millenium Realty, LLC

Environmental attorneys have long wrestled with the issue of whether particular clean-up activities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) fall under the statute of limitations for remedial actions, considered to be permanent responsive action, or for removals, considered to be interim remedial measures to address immediate threats to public health. In a governmental cost recovery action, guessing wrong can deprive a federal or state governmental entity of its ability to recover its clean up costs from Potentially Responsible Parties. In State of New York v. Next Millenium Realty, LLC, the Second Circuit vacated the District Court’s determination, holding that once an activity is instituted as a removal, it remains a removal until completion, even if it is incorporated into the final permanent remedy.

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 Jersey Supreme Court Holds That Claimants in Continuous-Trigger Environmental Coverage Cases Must Exhaust Policy Limits of Solvent Carriers Before Seeking Payment From Fund for Insolvent Carriers

Almost twenty years after establishing a methodology for allocating remediation costs among insurance policies in so-called “long-tail” cases, the New Jersey Supreme Court was faced with a new question: what happens when one of the insurers is insolvent? Applying a 2004 statutory amendment and interpreting it as reversing the result in a 1997 Appellate Division case, the Court held, in Farmers Mutual Fire Insurance Company of Salem v. New Jersey Property-Liability Insurance Guaranty Association that in such a case the policy limits of all solvent carriers must be exhausted before a claimant can recover any benefits from a special statutory fund created to stand in the place of insolvent insurers. The decision has important ramifications for corporations with complex insurance programs and potential environmental issues regarding sites where contamination may have been present over many years.

Throw Out Your Old SEQRA Forms – The Revised Model SEQRA Environmental Assessment Forms Take Effect October 7, 2013

Among the many sweeping changes made in recent years to New York’s State Environmental Quality Review Act (“SEQRA”), including pending SEQRA amendments and a revised SEQRA handbook, are the adoption of revised model environmental assessment forms (EAFs). The new forms were adopted by the New York State Department of Environmental Conservation (NYCDEC) back in January of 2012 and become effective as of Monday, October 7, 2013. The new EAFs can be found on NYCDEC’s website.

Appellate Division Finds a Six Year Statute of Limitations Applicable to New Jersey Spill Act Claims

In what is a potential game changing decision, the Appellate Division of the Superior Court of New Jersey, in Morristown Associates v. Grant Oil Company, et al., Docket No. A-0313-11T3 (App. Div. Aug. 23, 2013) recently held that the six year statute of limitations applicable to property damage claims is applicable to private claims pursuant to the New Jersey Spill Compensation and Control Act.

At the Intersection of Environmental and Bankruptcy Laws

Where environmental liability and bankruptcy intersect, the landscape with respect to allocation of liability among potentially responsible parties (“PRPs”) with ongoing obligations to remediate contaminated property has been greatly affected by cases such as In re Chemtura Corp., 443 B.R. 601 (Bankr. S.D.N.Y. 2011) and In re Lyondell Chem. Co., 442 B.R. 236 (Bankr. S.D.N.Y. 2011), both decided by Judge Gerber in the Southern District of New York. The New Jersey Law Journal article, “At the Intersection of Environmental and Bankruptcy Laws,” by Uzoamaka Okoye and Natasha Songonuga, examines a small, but interesting aspect of the Chemtura decision to allow the contingent “future” portion of the proof of claim filed by the Delaware Sand & Gravel Remedial Trust (the “Trust”), notwithstanding that the claim related to the debtors’ future costs to pay for remedial work at a Superfund site.

In Dune Construction Dispute, N.J. Supreme Court Holds that “Just Compensation” in Partial-Takings Cases Must Be Reduced by Value of All Reasonably Calculable Benefits

When the Borough of Harvey Cedars took a portion of the beachfront property of Harvey and Phyllis Karan to allow the Army Corps of Engineers to construct a protective dune, the Karans lost their view of the ocean, and a court awarded them $375,000 as compensation for the drop in the value of their $1.7 million home. In a momentous decision with important ramifications for shore protection efforts and for a much broader category of eminent domain cases, the New Jersey Supreme Court held that “just compensation” for the Karans should also have reflected the quantifiable benefits that they received as a result of the improved flood protection provided by the dune.

In Clean Water Act Case, Three Justices Invite Future Challenge to Rule of Deference to Agencies in Interpretation of Their Own Regulations

A victory in the Supreme Court is generally welcome news for the U.S. Environmental Protection Agency (EPA). But, the Court’s decision last month in a Clean Water Act case may foreshadow a sweeping change in administrative law that would certainly not please EPA or other agencies: the end of a long-standing rule of judicial deference to agencies in the interpretation of their own regulations.