Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

Emerging Trends: E-commerce Continues to Increase Demand for New Jersey Warehouse Space

Posted in Development/Redevelopment

The dramatic increase in the number of shoppers purchasing goods online continues to drive demand for warehouse and distribution space in the northeast. According to Census Bureau estimates, e-commerce now accounts for more than 8% of all U.S. retail sales, a near doubling of e-commerce’s retail market share in five short years. With internet shopping becoming the new norm, customers expect shorter and shorter delivery schedules. Speedy delivery options, such as same-day shipping, can create a competitive advantage in the New York metropolitan area, but retailers can only capitalize on that advantage if goods are stored close to their final destination.

Enter the modern warehouse and distribution facility in northern New Jersey. With millions of affluent residents and easy access to Manhattan, this area is the perfect location for retail operators to establish a warehouse and distribution center. The problem is that existing, vacant warehouse space is not so easy to find in a competitive market that’s highly regulated and over-developed.

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More on EPA’s New Recommendations on Sediment Cleanups

Posted in Environmental & Green Issues

Last month, we wrote about a new memorandum from the EPA’s Office of Land and Emergency Management that sets forth 11 recommendations for the agency’s regional offices on how to clean up contaminated sediments. Here we discuss some of those recommendations in greater detail.

The EPA’s recommendations are shown below in bold text, followed by our comments and analysis.

Recommendation 1: Consider early actions during the remedial investigation/feasibility study in site areas presenting high risks to help reduce risks quickly. Here, the EPA advises its regional offices not to wait until the sediments at a site are well characterized before taking steps to reduce serious risks. In many situations, the EPA can use its removal authority to reduce serious risks while other portions of the site are studied.

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Executive Order Spells Uncertainty for Pending EPA Rules

Posted in Environmental & Green Issues

On January 30, 2017, as promised during his campaign, President Trump signed an executive order requiring federal agencies to identify two regulations to be repealed for every new regulation that is created. The order comes on the heels of a January 20, 2017 memorandum from White House Chief of Staff Reince Priebus directing agency heads to freeze new or pending regulations including those that had been finalized but not yet published in the Federal Register.

The “one in, two out” rule and regulatory freeze spell uncertainty for regulations currently in the pipeline for adoption by the Environmental Protection Agency (“EPA”), including the proposed financial assurances rules for the hardrock mining industry we have previously covered here. Other impacted EPA rule proposals include a stormwater general permit designed to reduce polluted runoff from construction sites and a rule which would include vapor intrusion as a method of evaluating contamination levels at potential Superfund sites. At present, it is unclear how the administration’s actions will ultimately impact any pending EPA regulations (or those of other federal agencies).

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NYSDEC Announces Proposed Amendments to SEQRA Regulations

Posted in Environmental & Green Issues

The New York State Department of Environmental Conservation (NYSDEC) recently announced proposed amendments to the regulations implementing the State Environmental Quality Review Act (“SEQRA”), 6 N.Y.C.R.R. Part 617. The amendments mark the first update to the SEQRA regulations in over 20 years. According to a press release issued by the NYSDEC, “[t]he update is designed to encourage smart growth and sustainable development across the state” and is intended to compliment the agency’s implementation of the New York State Lean Initiative, which the NYSDEC says has “improved public responsiveness and performance at DEC while maintaining high standards of environmental and natural resource protection.”

The press release explains that “[t]he proposed amendments to SEQR will both streamline and strengthen the State’s environmental review process by expanding the actions not subject to further review, known as Type II actions, modifying certain thresholds for actions deemed more likely to require the preparation of an environmental impact statement (EIS), making scoping of an EIS mandatory rather than optional, and making the acceptance procedures for a draft EIS more consistent.” Examples of proposed Type II actions that would be added to the SEQR regulations include:

  • installation of broadband within an existing right-of-way;
  • green infrastructure upgrades or retrofits;
  • installing 5 MW or less of solar arrays on landfills, cleaned-up brownfield sites, wastewater treatment facilities, sites zoned for industrial use, or solar canopies on residential and commercial parking facilities;
  • installation of 5 MW or less of solar arrays on an existing structure not listed on the National or State Register of Historic Places;
  • sustainable development of disturbed sites;
  • acquisition and dedication of parkland;
  • land transfers for affordable housing; and
  • construction and operation of certain anaerobic digesters or composters at public wastewater treatment facilities or municipal solid waste landfills.

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David Freeman to Speak at New York City Brownfield Partnership Seminar

Posted in Development/Redevelopment, Environmental & Green Issues

David J. Freeman, a Director in the Gibbons Real Property & Environmental Department and Co-Chair of the Brownfields Task Force of the Environmental Law Section of the New York State Bar Association, will speak at an upcoming seminar on “New York State’s Brownfield Cleanup Program: What to Look for in 2017.” The seminar is sponsored by the New York City Brownfield Partnership and will take place on February 7 from 9:00 to 10:00 a.m.

Mr. Freeman and other panel members will review the major changes to the Program made by the 2015 amendments to the state’s Brownfield Cleanup Act, including

  • the new definition of “brownfield site”;
  • new deadlines for admission to the Program and for issuance of Certificates of Completion;
  • new rules and DEC procedures with respect to costs that qualify for site preparation tax credits; and
  • restrictions on tangible property credits for properties in New York City, including DEC’s new definition of an “underutilized” site.

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Governor Signs Off on Amendments to New Jersey’s Electronic Waste Management Act

Posted in Environmental & Green Issues

On January 9, 2017, Governor Christie signed into law a bill aimed at fortifying New Jersey’s existing Electronic Waste Management Act, by ensuring that manufactures of certain consumer electronics shoulder the burden for recycling all such devices actually collected in the state during a calendar year. While this new law is technically a recast of the existing statutory scheme, the changes it affects are, in many ways, transformative. This blog provides a broad description of the previous law, the apparent conditions which prompted its revision, and the key innovations of the new law.

Under the previous law, in effect since 2008, manufacturers of covered devices were obligated to provide for the collection, transportation, and recycling of their “return share in weight” of certain consumer devices collected throughout the state. Devices covered under the law were personal and desktop computers, monitors, and televisions. A manufacturer’s “return share in weight” was determined by the Department of Environmental Protection (“DEP”) who would estimate the weight of collected devices attributable to a particular brand for the coming year using a “statistically valid,” annual-sampling of devices collected in the preceding year. There was, however, a distinction for manufacturers of televisions; their obligation was quantified on a “market share” basis, using the “best available public data” to express their individual national sales as a percentage of overall national sales and applying that percentage to the weight of televisions collected.

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EPA Issues Directive to Clarify Existing Guidance on Sediment Cleanups

Posted in Environmental & Green Issues

From Portland Harbor in Oregon to New Jersey’s Passaic River, contaminated sediment sites present unique challenges. While the EPA issued guidance documents for addressing contaminated sediment sites in 2002 and 2005, it has since learned many lessons in addressing dozens of such sites. A new memorandum from the EPA’s Office of Land and Emergency Management (OLEM), formerly the Office of Solid Waste and Emergency Response, sets forth 11 recommendations for improving the way the agency’s regional offices handle the complex process of cleaning up contaminated sediments.

The new memorandum, designated as OLEM Directive 9200.1-130 and authored by Assistant Administrator Mathy Stanislaus, was sent to the EPA’s ten regional administrators on January 9, 2017. It builds on two earlier guidance documents, Principles for Managing Contaminated Sediment Risks at Hazardous Waste Sites (2002) and Contaminated Sediment Remediation Guidance for Hazardous Waste Sites (2005), as well as a 2016 Government Accountability Office (GAO) report, Superfund Sediment Sites: EPA Considers Risk Management Principles but Could Clarify Certain Procedures. These are just a few of the many guidance documents EPA has produced on contaminated sediments. It does not supersede existing EPA policy, but instead seeks to clarify the earlier guidance documents based on the agency’s experience at almost 70 “Tier 1” sediment sites.

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New Jersey Supreme Court Decides “Gap Period” Affordable Housing Need is to be Included in Present Need, Returns Cases to Trial Courts

Posted in Development/Redevelopment

The Supreme Court of New Jersey today issued its opinion in In re Declaratory Judgment Actions Filed by Various Municipalities partially affirming the decision of the Appellate Division, but expanding the definition of “present need” to include affordable housing need as it arose during the period from 1999 through the present. This decision recognized that the constitutional obligation to provide realistic opportunities for the construction of affordable housing did not stop in 1999, but has continued ever since, and provides some guidance for trial courts in how to determine the scope of that need. In effect, this decision modifies the decision of the Appellate Division by requiring trial courts to take the gap period need into consideration.

We have previously blogged about this case on July 28, 2016 and May 5, 2016. As we review the opinion in greater detail, stay tuned for further commentary and analysis on how this may impact ongoing negotiations with municipalities or the development of affordable housing in New Jersey.

Cameron W. MacLeod is an Associate in the Gibbons Real Property & Environmental Department.

EPA Proposes First Financial Assurances Rule

Posted in Environmental & Green Issues

On December 1, 2016, following decades of inaction and a court order establishing a deadline by which the proposed rule was to be released, the United States Environmental Protection Agency (“EPA”) announced that it would publish a proposed rule regulating financial assurances required for parties conducting remediation projects in the hardrock mining industry. Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) directed EPA to develop rules requiring “that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous wastes.” 42 U.S.C. 9608(b)(1). Although these rules were required to be promulgated by 1985, EPA never published any rules, which led to a deadline of December 1, 2016 being set by court order in response to a lawsuit complaining that EPA failed to comply with the statute. See In re Idaho Conservation League, 811 F.3d 502 (D.C. Cir. 2016). In the absence of such rules, EPA required financial assurance through negotiated settlements, orders, and guidance.

CERCLA requires that EPA create regulations mandating that certain responsible parties conducting remediation activities establish that they have the ability to fund all necessary remediation costs associated with those actions, otherwise known as financial assurances. For years, EPA made no progress in developing and promulgating such rules. Our previous article detailing the legal and regulatory history leading up to EPA’s announcement is available here. Importantly, the newly proposed financial assurance rule is limited to the hardrock mining industry, and EPA estimates that some 221 facilities throughout the country would be subject to the rule.

The proposed rule includes a detailed explanation of financial assurance mechanisms that will be permitted under the rule and provides that the amount of financial assurance must be sufficient to pay for estimated environmental remediation actions, as well as natural resource damages. The proposal allows a responsible party to demonstrate it has the financial wherewithal to cover the cost of a remediation through the use of approved financial assurance mechanisms, which would include trust funds, insurance policies, letters of credit, surety bonds, or a combination of those instruments.
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Russell Bershad Named to the NJBIZ Real Estate Power List

Posted in Transactional Real Estate & Leasing

Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, has been named to the NJBIZ Real Estate Power 75, a list of the most powerful people in New Jersey real estate. Mr. Bershad appeared for the first time this year, ranking 55th on the list.

NJBIZ notes, “Russ Bershad is a newcomer to the list. But, according to one fan, he’s been in the mix for quite some time. ‘He was involved in the Roche deal, he represents David Barry in Jersey City. He’s doing a lot of good things there.’ Said another: ‘You know every detail is going to be pored over when you hire Russ.’ Said another: ‘If you’re going to add more lawyers to the list, and that’s a good idea, Russ is one of the people you need to have.’”

At Gibbons, Mr. Bershad leads the firm’s transactional real estate practice, which earned a national ranking in the most recent edition of U.S. News & World Report/Best Lawyers®. He is included among the top band of real estate attorneys in New Jersey by the Chambers USA Guide to America’s Leading Lawyers for Business and was recently listed by New Jersey Super Lawyers as the “Real Estate Lawyer of the Year” for the Newark region. He is also listed individually in Best Lawyers and is one of approximately 20 New Jersey attorneys elected for membership as a Fellow in the American College of Real Estate Lawyers.

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