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Gibbons Law Alert

Tagged: Remediation

N.J. Appellate Division Decision Underscores Need for a Hearing to Resolve Factual Disputes

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Posted in Environmental & Green Issues

On December 9, 2024

On November 14, 2024, the New Jersey Appellate Division issued a decision in Beazer East, Inc. v. Morris Kearny Associates Urban Renewal, LLC, reversing the lower court which had ordered Defendant Morris Kearny Associates Urban Renewal, LLC (“Morris”) to give access to its site in Kearny (“Site”) to Plaintiff Beazer East Inc. (“Beazer”) in order for Beazer to remediate contaminated groundwater at the Site pursuant to the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.1 to -23.24, and the Hazardous Discharge Site Remediation Act, N.J.S.A. 58:10B-1 to -31. Beazer had sought access to a portion of the Site to install two groundwater-monitoring wells.  Morris denied the request, claiming that Beazer’s installation of the wells would interfere with Morris’ contractual obligation to construct site improvements and warehouses on its property in furtherance of a commercial redevelopment project.  After subsequent negotiations to obtain access were unsuccessful, Beazer filed a summary action seeking access to the Site under the New Jersey Access Statute, N.J.S.A. 58:10B-16, which allows a remediating party to obtain a court order on an expedited basis permitting “reasonable access” to a property if “after good faith efforts, the person undertaking the remediation and the property owner fail to reach an agreement concerning access.” N.J.S.A. 58:10B-16(a)(1). In support of its order to show cause seeking...

Expanded NYC Lead-Based Paint Laws Now in Effect

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Posted in Environmental & Green Issues

On October 11, 2024

Labor Day weekend is in the rear view mirror, which means that several recently enacted lead-based paint (LBP) laws for residential properties in New York City have taken effect. In total, these NYC Local Laws significantly expand the requirements imposed by the city on landlords of residential properties constructed before 1980. Landlords of residential properties in NYC should pay close attention to these changes, which are discussed in detail below. XRF Testing Requirement Expanded to Building Common Areas (Local Law 111 of 2023) Under Local Law 31 of 2020, owners are required to hire an independent Environmental Protection Agency-certified inspector or risk assessor to conduct an x-ray fluorescence (XRF) test for the presence of LBP in a dwelling unit of a building built prior to 1960, as well as those constructed before 1978 where the owner has actual knowledge of the presence of LBP. Local Law 111 of 2023 expands this requirement to painted areas within the common areas of a residential rental building. Under NYC law, “common area” is defined as “a portion of a multiple dwelling that is not within a dwelling unit and is regularly used by occupants for access to and egress from any dwelling unit within such multiple dwelling.” This definition includes stairwells and hallways. The existence of LBP in any...

A Landmark Step: EPA Designates PFOA and PFOS as Hazardous Substances Under CERCLA

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Posted in Development/Redevelopment / Environmental and Green Issues

On June 5, 2024

The U.S. Environmental Protection Agency’s (EPA) announcement on April 19, 2024, of its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), marks a significant moment in environmental regulation of per- and polyfluoroalkyl substances (PFAS). At the same time, the EPA released a new PFAS Enforcement Discretion and Settlement Policy under CERCLA (“Enforcement Policy”). These two announcements have wide-ranging implications for Superfund cleanups, development projects, public health, and the scope of environmental liability under CERCLA. The Persistent Threat of “Forever Chemicals” PFOA and PFOS belong to the PFAS class, a large group of man-made chemicals known for their exceptional resistance to degradation. These chemicals have been widely used since the 1940s in countless industrial applications and consumer products. Their unique chemical structure makes them highly effective in repelling water, oil, and stains. However, this same property also makes them incredibly persistent in the environment, earning them the nickname “forever chemicals.” Over time, PFAS have infiltrated various environmental media, including soil, water, and air. Extensive research over the past few decades has linked PFAS exposure to a range of human health problems, including: Certain cancers, particularly testicular and kidney cancers Liver damage Increased cholesterol levels Thyroid issues Developmental problems in infants and children, including low birth...

Three Large Chemical Companies Agree to Historic PFAS Settlement

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Posted in Environmental and Green Issues

On June 12, 2023

Three large American chemical companies, The Chemours Company, DuPont de Nemours, Inc., and Corteva, Inc., recently announced a massive $1.185 billion settlement deal over complaints about the emerging toxic chemicals of concern known as Per- and Polyfluoroalkyl Substances, or PFAS as they are more commonly referred to. PFAS are synthetic chemicals nicknamed “forever chemicals” because they are persistent and resistant to degradation. They have been used in a wide variety of everyday products and are found in detergents, non-stick pans, stain-resistant and waterproof fabrics, fragrances, drugs, disinfectants, pesticides, and fire-fighting foam. According to a joint statement issued by the three companies and a corresponding question and answer addendum, the $1.185 billion total will be distributed to a so-called “water district settlement fund.” The rate that each company will contribute is consistent with a January 2021 Memorandum of Understanding reached between the companies, in which Chemours agreed to a 50-50 split of qualified expenses with both DuPont and Corteva. Under the settlement, Chemours will pay half (approx. $592 million), and DuPont (approx. $400 million) and Corteva (approx. $193 million) will contribute the remaining 50 percent to the fund. As part of the settlement agreement, the three companies do not admit fault in the cases and deny the allegations. Once the settlement is finalized, which the parties...

Appellate Division Rejects Judicial Review Upon Assertion of Good-Cause Defenses to an NJDEP Spill Act Directive Prior to Imposition of Direct Oversight

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Posted in Environmental and Green Issues

On January 19, 2023

On January 9, 2023, the New Jersey Appellate Division issued its decision in In re N.J. Dep’t of Envtl. Prot. Direct Oversight Determination, in which the court addressed whether good-cause defenses asserted by Solvay Specialty Polymers USA, LLC (“Solvay”) to a statewide directive had to be decided by a court before the New Jersey Department of Environmental Protection (NJDEP) could place it under direct supervision. Solvay has owned and operated a manufacturing plant along the Delaware River since 1990 (the “Site”). When Solvay was informed of sampling data establishing the presence of perfluorononanoic acid (PFNA) and perfluorooctanoic acid (PFOA), two specific per- and polyfluoroalkyl substances (PFAS), so-called “forever chemicals,” in the area near the Site, Solvay began investigating and remediating PFNA and PFOA that might be attributable to the Site. In September 2013, at the NJDEP’s request, Solvay entered into the NJDEP’s site remediation program and hired a licensed site remediation professional (LSRP) to oversee its remediation efforts. In March 2019, the NJDEP issued a Statewide PFAS Directive to Solvay and other entities, in which the NJDEP determined that Solvay is responsible for PFNA and PFOA contamination arising from the Site, which has contaminated the Site and surrounding areas, including the state’s natural resources. The Statewide PFAS Directive provided detailed steps to be taken by...

NJDEP Posts Guidance for Prospective Purchasers of Contaminated Sites to Obtain Adjustments to Direct Oversight Requirements

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Posted in Environmental and Green Issues

On October 21, 2022

On September 9, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued its Pre-Purchase Administrative Consent Order Guidance through the NJDEP’s Contaminated Site Remediation & Redevelopment Program. The guidance document explains how prospective purchasers of contaminated sites subject to Direct Oversight can obtain a Pre-Purchase Administrative Consent Order (ACO), allowing for adjustments to Direct Oversight requirements. Under the Site Remediation Reform Act, if the person responsible for conducting remediation of a contaminated site fails to complete the investigation and remediation within mandatory timeframes, the NJDEP automatically places the site into Direct Oversight. The Direct Oversight requirements are a more prescriptive remediation process for the person responsible for conducting remediation. Some of the Direct Oversight requirements include: NJDEP selection of the remedial action for the site; NJDEP approval of each document submitted by a licensed site remediation professional; establishment of a remediation funding source in the amount needed to complete remediation; performance of a remedial action feasibility study for NJDEP approval; and compliance with an NJDEP-approved public participation plan. Once a potential buyer of a site closes on a contaminated property subject to Direct Oversight, the potential buyer becomes a person “in any way responsible” for remediating the site pursuant to the Spill Compensation and Control Act (“Spill Act”). By entering into a Pre-Purchase ACO,...

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

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Posted in Environmental and Green Issues

On June 1, 2021

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

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Posted in Environmental and Green Issues

On May 19, 2021

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....

USEPA Creates PFAS Council

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Posted in Environmental and Green Issues

On April 30, 2021

Per- and Polyfluoroalkyl Substances (PFAS) are synthetic chemicals nicknamed “forever chemicals” because they are persistent and resistant to degradation. They have been used in a wide variety of everyday products and are found in detergents, non-stick pans, stain-resistant and waterproof fabrics, fragrances, drugs, disinfectants, pesticides, and fire-fighting foam. PFAS comprise more than 4,700 compounds. Many of them have been identified as potential environmental or public health risks.

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