Gibbons Law Alert
Lisa Garcia will give her first public presentation in her new capacity as USEPA’s Region II Administrator at the NYSBA Environmental & Energy Law Section’s annual webinar on Superfund/Brownfield Update 2021: Federal and State Environmental Law and Policy on Wednesday, December 8, 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?
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.
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 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.
As we reported, New Jersey Governor Phil Murphy recently signed the nation’s first environmental justice law, which seeks to address the unfair distribution of the environmental and public health impacts of polluting activities by imposing additional requirements on parties seeking to site, expand, or renew permits for various types of facilities in “overburdened communities,” which are defined in the statute in terms of economic and demographic criteria. The statute requires the New Jersey Department of Environmental Protection (NJDEP) to promulgate regulations to implement its requirements. NJDEP began the public process of developing those regulations on October 22 when Olivia Glenn, Deputy Commissioner for Environmental Justice and Equity, and Sean Moriarty, Chief Advisor for Regulatory Affairs, hosted an online public information session in which they sought the public’s input on how the regulations should address numerous definitional and procedural issues. (The statute will not take effect until NJDEP promulgates its regulations.) Companies 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 their project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility...
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...
On September 18, 2020, New Jersey Governor Phil Murphy signed legislation intended to address the disproportionate environmental and public health impacts of pollution on overburdened communities. The legislation, versions of which have been proposed several times over the past decade, imposes additional requirements on companies seeking permits for new or expanded facilities under a variety of environmental statutes. It also requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate how the proposed permitted activities would impact those communities determined to be “overburdened” under the new law. Earlier this summer, marking the “Juneteenth” anniversary of the emancipation of slaves in the United States, Governor Murphy had indicated his support for the legislation, which some environmental advocates have dubbed the “holy grail” of the environmental justice movement. Although critics of the law raised concerns about its effect on manufacturing and business investment in New Jersey, the bill passed the state legislature in late August, with votes of 49-28-1 in the state Assembly and 21-14 in the state Senate. The types of facilities covered by the new law include certain power plants, incinerators, sewage treatment plants, solid waste facilities, and landfills, as well as other facilities deemed to be “major sources of air pollution” (as determined by the federal Clean Air Act). Governor Murphy stated that,...
On June 19, 2020, Governor Murphy announced his support for proposed legislation that would require the New Jersey Department of Environmental Protection (NJDEP), and permit applicants, to take additional steps prior to permits being issued for new or expanded facilities under a wide variety of state environmental statutes. The proposed legislation, which aims to protect those communities that historically have been most impacted by pollution from industrial and related activities, would require the NJDEP to publish and maintain a list of those communities determined to be “overburdened.” In the proposed legislation, “overburdened community” is defined as: “any census block group, as determined in accordance with the most recent United States Census, in which at least one half of the households qualify as low income households, and either: (1) at least 40 percent of the residents of the census block group identify as Black, African American, Hispanic or Latino, or as members of a State-recognized tribal community; or (2) at least 40 percent of the households in the census block group have limited English proficiency.” Prior to approval of covered permit applications, an applicant would be required to assess and prepare an environmental impact statement to outline both the existing environmental and health stressors already borne by the relevant community, as well as any additional impacts...
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...