Gibbons Law Alert

Gibbons Law Alert

Tagged: Remediation

CREMA Provides the Framework for the Regulated Recreational Cannabis Industry in New Jersey, but Disincentivizes Businesses From Seeking to Achieve Certain Legislative Goals

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Posted in Development/Redevelopment

On January 13, 2021

In November 2020, New Jersey voters passed the referendum to add an amendment to the State Constitution for the legalization of recreational cannabis by a resounding margin of 2 to 1. The amendment went into effect as of January 1, 2021; however, implementation and the establishment of the legal recreational cannabis market requires further legislative and regulatory action. As the first step in this process, the State Assembly and Senate each passed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREMA”). CREMA is the result of tireless legislative negotiation that began well before the November 2020 vote. The end result includes provisions aimed at public policy and social justice considerations, and at creating a competitive business marketplace. For example, under CREMA, the Legislature takes effort to address the disproportionate negative impacts that cannabis prohibition has had on Black New Jerseyans and other minority communities. With the goal of promoting social equity and redressing the historical impact of unequal application of drug laws on minority communities, CREMA provides priority for license applications to businesses located in “impact zones,” which are defined as municipalities that have a population of 120,000 or more or that rank in the top 40 percent for cannabis-related arrests, and mandates that at least 70 percent of tax revenue on...

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

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Posted in Environmental and Green Issues

On October 13, 2020

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...

Pre-SRRA? SRRA!: NJDEP Clarifies Applicability of SRRA to Pre-SRRA Cleanup Orders and Agreements

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Posted in Environmental and Green Issues

On September 15, 2020

In a listserv published on September 10, 2020, the New Jersey Department of Environmental Protection (NJDEP) has once again made clear that the innovative requirements of the 2009 Site Remediation Reform Act (SRRA), including the requirement to retain a licensed site remediation professional (LSRP), apply to any cleanup being performed under an administrative consent order (ACO) or remediation agreement (RA) that predates the enactment of SRRA on November 4, 2009. (SRRA was amended last year in what some commentators termed “SRRA 2.0.”) The NJDEP release, which supersedes a 2012 listserv on the same subject, confirms that (except for cleanups at certain federal facilities or sites being addressed under federal statutes) all parties conducting remediation work must retain an LSRP, even if they are subject to a pre-SRRA ACO or RA. NJDEP will hold in abeyance all ACO/RA requirements regarding departmental pre-approval of reports and work plans, as well as any deadlines contained in the order or agreement. Remediating parties must instead meet all regulatory and mandatory timeframes in NJDEP’s regulations. Other requirements in the ACO/RA will remain in effect, including those relating to a remediation funding source (RFS), RFS surcharges, and stipulated penalties. The new listserv also clarifies that SRRA overrides any termination provision in a pre-SRRA ACO or RA. NJDEP will not terminate an...

(State) Settlors Beware, Too: In Reversal, Third Circuit Declares that State Settlement Does Not Protect Against Federal Claims under CERCLA

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Posted in Environmental and Green Issues

On September 14, 2020

Previously, the District of New Jersey ruled that a polluting party’s settlement agreement with the New Jersey Department of Environmental Protection (NJDEP) provided contribution protection from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims based on costs incurred by the United States Environmental Protection Agency (USEPA) at the same site, even though USEPA was not a party to the settlement. In a prior blog post discussing that decision, we noted that the District Court’s decision was likely to be appealed. It was. On appeal, the Third Circuit considered the inquiry of “[w]hether a polluting party’s settlement with the State of New Jersey protects it from lawsuits seeking contributions toward expenditures made by the Federal Government on the same site,” and determined in a precedential opinion that, “the answer here is no.” CERCLA section 113(f)(2) provides that “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” The District Court applied the analysis commonly adopted by other federal courts to determine the “matters addressed” of the previous settlement where the scope is not made explicit by the agreement itself. This analysis includes factors such as the location, time frame,...

Who’s in Charge Here?: Third Circuit Holds That Government Was Not an “Operator” of Jersey City Chromium Facility for Purposes of Superfund Liability

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Posted in Environmental and Green Issues

On May 7, 2020

Federal courts have long struggled to determine the shape and boundaries of the wide liability net cast by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law. In its recent decision in PPG Industries Inc. v. United States, the Third Circuit applied circuit and Supreme Court precedent to hold that the government’s influence over a chromite ore processing plant in Jersey City during World War I and World War II was not pervasive or intrusive enough to make the government a past “operator” of the plant and thus liable for cleanup costs. Prior to PPG’s 1954 acquisition of the plant (which it continued to operate until 1963), Natural Products Refining Corporation (NPRC) operated the plant, which processed chromite ore into various chromium chemicals, including sodium bichromate. During both World War I and World War II (when it designated the plant’s output as critical war materials, i.e., products manufactured for direct military use), the government regulated the production of chromium chemicals. Through a variety of price, labor, and production controls, the government sought to encourage increased production of these key chemicals. Those efforts, however, did not extend to direct control over day-to-day operations or to the use of government employees to run the facility. Moreover, while the government was aware...

“Cooperative Federalism” or “Paternalistic Central Planning”?: U.S. Supreme Court Agrees That State Courts Can Hear Claims Over Adequacy of CERCLA Cleanups Under Certain Circumstances, But Limits Plaintiffs’ Options

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Posted in Environmental and Green Issues

On April 27, 2020

The federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund law, prescribes a careful process for making decisions on how to remediate contaminated sites. To avoid delay, the statute also divests federal courts of jurisdiction to hear most challenges to the selected remedy. In its recent opinion in Atlantic Richfield Co. v. Christian, the U.S. Supreme Court agreed that CERCLA does not bar state courts from hearing claims grounded in state law that go beyond claims for money damages and seek a cleanup that goes beyond what EPA requires. The case arose in Montana, where the Anaconda Copper Smelter operated for over a century and contaminated an area of over 300 square miles with arsenic and lead. Atlantic Richfield Company acquired the financially troubled smelter in the 1970s but could not reverse its decline, and closed it by 1980. Three years later, EPA named it one of its first official Superfund sites, and since then Atlantic Richfield has spent over $450 million on a cleanup that is expected to continue until 2025. The Superfund site that Atlantic Richfield has been remediating includes numerous residential properties. The owners of 98 of those properties sued Atlantic Richfield in Montana state court in 2008, asserting state common law claims. In addition to traditional...

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

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Posted in Development/Redevelopment / Environmental and Green Issues

On April 16, 2020

Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic. EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19 EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs). At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and whether social distancing at specific sites is possible. In making decisions to reduce or suspend...

More Than Parking Tickets: Appellate Division Rules that New Jersey Municipal Courts Can Assess Civil Penalties for Spill Act Violations

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Posted in Environmental and Green Issues

On November 26, 2019

Municipal courts are typically called on to rule on such matters as parking violations and speeding tickets. Some statutes, however, give them jurisdiction over a surprising variety of actions. In its published opinion in State of New Jersey Department of Environmental Protection v. Alsol Corporation, the Appellate Division held that one powerful environmental law, the Spill Compensation and Control Act (Spill Act), grants municipal courts jurisdiction to assess civil penalties for violations of the statute, even where the department has not already gone through an administrative process to assess such penalties. DEP’s complaint against Alsol arose from an October 2016 oil spill at a property it owns in Milltown. According to factual assertions made by the New Jersey Department of Environmental Protection (NJDEP), the spill was the result of a contractor’s faulty demolition of three electrical transformers. Oil from the transformers, later determined to contain polychlorinated biphenyls (PCBs), spilled onto the surface and into a storm drain. The oil allegedly reached Farrington Lake and may have reached Mill Pond and Lawrence Brook, which a Department of Environmental Protection (DEP) Fish and Wildlife Officer closed to fishing. The complaint, filed in Milltown Municipal Court, did not allege a violation of the Spill Act’s fundamental prohibition on the discharge of hazardous substances. Instead, it alleged that Alsol...

Gibbons Director David J. Freeman to Serve as Co-Chair for NYS-NYC Bar Program

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 4, 2019

Gibbons Director David J. Freeman will serve as Program Co-Chair of an upcoming New York State Bar/New York City Bar conference on Federal and New York State brownfield and Superfund programs. The conference will take place from 10:00 a.m. to 3:00 p.m. on December 12, 2019 at the New York City Bar Association, 42 West 44th Street, New York, NY 10036. The program’s distinguished faculty includes New York State Attorney General Letitia James, Environmental Protection Agency (EPA) Region 2 Administrator Pete Lopez, and other officials from the EPA, the New York State of Department of Environmental Conservation (NYSDEC), the New York State Office of Attorney General, and the New York City Office of Environmental Remediation. The topics to be discussed will include: trends in federal Superfund enforcement, including natural resource damages claims and the impact of the Superfund Task Force recommendations; NYSDEC policies and practices in implementing the 2015 Amendments to the Brownfield Cleanup Act; the intersection between Superfund and brownfields, focusing on developments at the Gowanus Canal Superfund Site; and an analysis of case law developments in these areas. Click here for a brochure describing the program and here for a further description and registration information.

Expect the Unexpected: New Jersey Appellate Division Rules That Language of Pre-SRRA Contract Requires Remediation Under New Rules

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Posted in Environmental and Green Issues

On October 24, 2019

It is universally recognized that the 2009 Site Remediation Reform Act (SRRA) completely overhauled the process of site remediation in New Jersey. Less obvious, perhaps, was how the new statute could affect contractual cleanup obligations in agreements that predate SRRA’s enactment. In 89 Water Street Associates LLC v. Reilly, the Appellate Division held that the language of a purchase-and-sale agreement from 2004 required the seller to meet all of the requirements of the later-enacted statute, even if the cleanup takes much longer, and costs much more, than originally envisioned. The saga begins in 2004, when the plaintiff entered into a contract to purchase an industrial property in Bridgeton from the defendant’s predecessors in interest. The owner had already been through one remediation process, having obtained a “no further action” letter (NFA) from the New Jersey Department of Environmental Protection (NJDEP) under the Industrial Site Recovery Act (ISRA) (then known as the Environmental Cleanup Responsibility Act). The owner leased the site to a company (NRI) that he controlled in 1984. Fast forward twenty years, when the parties entered into a contract to transfer the property for $475,000. The agreement set a closing date, which could be extended by six months, but did not permit termination of the contract if the closing did not occur on time....

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