Gibbons Law Alert

Gibbons Law Alert

Tagged: Remediation

At the Intersection of Environmental and Bankruptcy Laws

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Posted in Environmental and Green Issues

On August 9, 2013

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.

New Report Considers Options For Tweaking Brownfields Programs in NY

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Posted in Development/Redevelopment

On May 2, 2013

New York State was among the first to enact programs aimed at remediation and redevelopment of contaminated sites. The goal of such programs is both to promote economic revitalization and to encourage private entities to remediate the state’s contaminated sites. Three such programs, the Voluntary Cleanup Program (“VCP”), the Environmental Restoration Program (ERP), and the Brownfield Cleanup Program (“BCP”), have achieved considerable success, with over 400 sites having been remediated in the past two decades. Nevertheless, policy makers continue to search for ways to make these programs better and more cost efficient. Prompted by the impending expiration of key provisions of the BCP, a report released by the New York State Comptroller’s office in April 2013, provides an assessment of these programs, as well as some options for improvement going forward.

Action Required: NJDEP Implements New Vapor Intrusion Screening Levels

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Posted in Environmental and Green Issues

On January 24, 2013

The New Jersey Department of Environmental Protection (“NJDEP”) recently issued new vapor intrusion screening levels (“VISL”) and related guidelines, which will have an immediate impact on existing remediation sites. The screening levels were updated to reflect the changes in toxicity values and risk-based equations set forth in the United States Environmental Protection Agency’s (“USEPA”) most recent Regional Screening Level (“RSL”) Tables. NJDEP implemented the new VISL as of January 16, 2013. Parties conducting remediations and their Licensed Site Remediation Professionals will need to analyze how these new screening levels impact their sites.

A Super Step in Superfund Regulation? Time Will Tell: EPA Releases Guidance on Negotiation of RD/RA at Superfund Sites and a Revised Settlement Approach for Alternate Sites

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Posted in Environmental and Green Issues

On January 14, 2013

In the controversial area of Superfund regulation, the United States Environmental Protection Agency (“EPA”) appears to be making steps toward more successful and more efficient negotiation of remedial design (“RD”)/remedial action (“RA”) settlements in Superfund cases. EPA recently released its Revised Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations (“the Negotiation Policy”) and Transmittal of Updated Superfund Response and Settlement Approach for Sites Using the Superfund Alternative Approach (“Alternative Approach”).

New York Court of Appeals Clarifies Relationship Between SEQRA and Brownfield Cleanup Act

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 20, 2012

On October 23, 2012, the New York Court of Appeals handed down its decision in Bronx Committee for Toxic Free Schools v. New York City School Construction Authority. In it, the Court held that the public notice procedures that the School Construction Authority followed under the New York State Brownfield Cleanup Act (BCA) did not satisfy the related, but distinct public notice and comment obligations under the State Environmental Quality Review Act (SEQRA).

NY Court Denies Summary Judgment in Seemingly Clear-Cut Case Under NY Navigation Law

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Posted in Environmental and Green Issues

On August 6, 2012

An upstate Supreme Court Justice has denied summary judgment on liability under Section 181 of the state’s Navigation Law against a company whose predecessor owned and operated a petroleum refinery on the site for almost 60 years. The decision in One Flint Street LLC v. Exxon Mobil Corp, et al., Index No. 2011/4470 (July 18, 2012, Monroe Co. Sup. Ct.) establishes a high bar for obtaining summary judgment in Nav Law cases.

Gibbons Real Property & Environmental Department Adds David Freeman to the New York Office

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Posted in Development/Redevelopment / Environmental and Green Issues

On July 16, 2012

David J. Freeman, formerly head of the Environmental Practice Group at the New York City office of Paul Hastings, has joined Gibbons P.C.’s New York office as a Director in the Real Property & Environmental Department. Mr. Freeman represents the buyers, sellers, and developers of properties in all environmental law areas including brownfields, due diligence, hazardous waste cleanups, and sustainability. He also litigates matters related to remediation, cost recovery, property damage, and exposure to toxic substances.

Final ARRCS Rules Adoption Published in NJ Register

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Posted in Environmental and Green Issues

On May 7, 2012

To fully implement the Site Remediation Reform Act, the New Jersey Department of Environmental Protection (NJDEP) has published a notice of adoption of amendments to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS rules), N.J.A.C. 7:26C in the New Jersey Register today, May 7, 2012. This adoption also amends several other rules related to site remediation in New Jersey, including the repeal and replacement of the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and amendments to the Industrial Site Recovery Act rules, N.J.A.C. 7:26B. This rule adoption is concurrent with the final May 7, 2012 deadline for almost all remediating parties to engage a Licensed Site Remediation Professional to conduct remediations in NJ.

NJDEP Clarifies Impact of Site Remediation Reform Act on Requirements of Administrative Consent Orders and Remediation Agreements

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Posted in Environmental and Green Issues

On February 14, 2012

With full implementation of the Site Remediation Reform Act on the horizon, the New Jersey Department Environmental Protection (NJDEP) recently clarified that for parties currently proceeding with remediation under NJDEP oversight pursuant to an Administrative Consent Order (ACO) or Remediation Agreement (RA), such parties will be expected to engage a Licensed Site Remediation Professional no later than May 7, 2012. Any ACO/RA requirements to obtain NJDEP pre-approval of reports and workplans will be held in abeyance. Likewise, any ACO/RA specific timeframes will also be held in abeyance. Instead, responsible parties must meet all regulatory and mandatory timeframes prescribed in applicable rules. However, the ACO/RA will otherwise remain in effect until the remediation is complete or covered by a remedial action permit and parties will be subject to, among other requirements, the remediation funding source requirements and stipulated penalties.

NJDEP Proposes New Rules for Site Cleanups

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Posted in Development/Redevelopment / Environmental and Green Issues

On August 16, 2011

On August 15, 2011, the New Jersey Department of Environmental Protection (NJDEP) issued proposed Final Rules to implement the Site Remediation Reform Act (SRRA) adopted in May 2009. These rules are intended to be the final implementation step in the phased transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by Licensed Site Remediation Professionals (LSRPs). Instead of NJDEP overseeing every step of a cleanup, the LSRP, licensed by a 13-member Licensed Site Remediation Professional Board with investigative and disciplinary powers, is responsible for making day-to-day decisions about a clean-up. Certain categories of cleanups remain under NJDEP oversight, such as where the responsible party has a history of non-compliance or has failed to meet mandatory deadlines. The rule proposal appeared in the New Jersey Register on August 15, 2011 and can be viewed online. Comments can be submitted until October 14, 2011.

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