Real Property & Environmental Law Alert : New Jersey, New York, Pennsylvania & Delaware Lawyers & Attorneys for Real Estate Development & Environmental Law

The Eighth Circuit recently addressed an issue which the United States Supreme Court expressly side-stepped in 2007 when it decided United States v. Atlantic Research Corp., 551 U.S. 128 (2007). In Atlantic Research, the Court left open the question whether potentially responsible parties that incur response costs pursuant to an administrative consent order or a judicially approved consent decree may pursue a cost recovery claim under §107 of CERCLA, §113 of CERCLA or both sections.

In Atlantic Research, the Supreme Court held that ARC, a private party that had incurred response costs, could bring suit under §107 of CERCLA because it had “voluntarily” incurred response costs to remediate its property. It also recognized that the costs of reimbursement paid pursuant to a legal judgment or settlement are recoverable only under §113(f) of CERCLA. The Court refused to classify other response costs that did not fit either of these categories, declining to decide whether response costs incurred pursuant to a consent decree could be recovered under §107, §113(f) or both sections of CERCLA.

This issue left open by the U. S. Supreme Court in 2007 was recently ruled upon by the Eight Circuit in Morrison Enterprises, LLC v. Dravo Corporation, No. 10-1468 (April 5, 2011, 8th Cir.). Morrison and the City of Hastings, Nebraska sued Dravo Corporation under §107 of CERCLA to recover response costs that they had incurred responding to contaminated groundwater at the Site. In 1991 and again in 1996, Morrison had entered into Administrative Orders on Consent with EPA to operate a groundwater extraction and treatment system, which began operating in 1997. Morrison also entered into a consent decree regarding the operation of the groundwater extraction and treatment system.

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The New Jersey Department of Environmental Protection (“NJDEP”) launched a new e-permitting program that will allow the public to apply on-line for certain coastal permits. The program is consistent with the Governor’s “Common Sense Principles” outlined in Executive Order No. 2 which focused on the need to reduce the high costs and regulatory burdens that are thought to impede growth and opportunity in the State of New Jersey.

The program will compliment NJDEP’s existing on-line permit application systems for its air, water and underground storage tank cleanup programs. Property owners may now apply for two types of general permits on-line: a GP-14 permit for in-kind bulkhead replacements and a GP-19 permit for dock replacements in artificially constructed lagoons. The process simply requires the applicant to answer a short list of questions and to certify to the truthfulness of those answers. Based on the applicant’s responses, the program will approve or reject the permit.

The new program is expected to vastly streamline the existing permit process, which currently may take up to three months for a response. Automating the permit process also frees up valuable NJDEP resources.

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For the first time, the LexisNexis Environmental Law & Climate Change Community has honored a select group of blogs that they believe set the online standard for the practice area. This Real Property & Environmental Law Alert is among those they named in their 50 Top Environmental and Climate Change Blogs for 2011.

According to LexisNexis, "The Top 50 Blogs for the Environmental Law & Climate Change Community recognizes preeminent thought leaders in the blogosphere and creates an invaluable content aggregate for all segments of the environmental law and climate change practice. Most good blogs provide frequent posts on timely topics, but the authors in this year’s collective take their blogs to a different level by providing insightful commentary that demonstrates how blogs can—and do—impact the practice of environmental and climate change law."

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Last month, the Environmental Protection Agency published a notice  for “Public Comment on the Development of Final Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway From Contaminated Groundwater and Soils (Subsurface Vapor Intrusion Guidance)” in the Federal Register. The draft of the Subsurface Vapor Intrusion Guidance was initially released for comment during 2002 and the EPA is planning on issuing final guidance by November 20, 2012.

More recently, the EPA published a Review of the Draft 2002 Subsurface Vapor Intrusion Guidance which summarized portions of the 2002 guidance requiring update. In general, the EPA noted the observed complexity and variables impacting the migration of volatile organic compounds since issuance of the initial 2002 guidance.

Comments must be submitted to the EPA by May 14, 2011. However, the EPA anticipates making another draft of the guidance available for public comment during the Spring of 2012.

David A. Brooks is Counsel to the Gibbons Real Property & Environmental Department.

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Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, was the Dinner Speaker at the April meeting of the Institute for Supply Management - New Jersey, Inc. on April 13, 2011. She addressed the issue of greenwashing, unjustifiable product claims of being environmentally sensitive and strategies to help companies avoid the problem.

Ms. Peticolas explained that sustainability has become an increasingly important corporate aspiration in the face of global warming concerns and the U.S. commitment to reduce greenhouse gases under the Copenhagen Accords. Among common corporate sustainability practices is buying “green” products from “green” vendors. Although there are some third party independent verification systems, such as Energy Star, Forest Stewardship Council, and LEED, much of the green marketplace operates on a caveat emptor basis. The proposed Green Guides published by the Federal Trade Commission in October 2010, offer guidance on what kind of eco-friendly claims are appropriate. The Guides are a useful tool, backed by the FTC’s enforcement powers, and provide some check on the marketplace, but cannot substitute for a savvy and informed purchasing manager.

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The Audit Committee of the New Jersey Department of Environmental Protection’s Site Remediation Professional Licensing Board is soliciting comments on its draft process and questionnaire for the completion of statutorily required audits of the work of Licensed Site Remediation Professionals (LSRPs). The Committee is accepting comments until April 18, 2011. The Board intends to finalize the process and questionnaire at its May 2, 2011 meeting.

The New Jersey Site Remediation Reform Act created the Board to oversee the work of LSRPs. Under the statute, each year the Board must audit the submissions and conduct of at least 10% of all LSRPs. The audits will serve as a first step for gathering information on LSRP submissions and on their compliance with the statute’s code of conduct for LSRPs. The draft process and questionnaire can be found on the Board’s website.

Comments should be submitted by 5:00 p.m. on April 18, 2011 via e-mail to karen.hershey@dep.state.nj.us or via mail to:

Site Remediation Professional Licensing Board
c/o New Jersey Department of Environmental Protection/Site Remediation Program
Office of Assistant Commissioner
PO Box 420; Mailcode 401-06
401 East State Street
Trenton, New Jersey 08625-0420
Attn: Audit Committee

Paul M. Hauge is an Associate in the Gibbons Real Property & Environmental Department.

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The City of Yonkers, New York, under a December 21. 2010 Consent Agreement (“Agreement”) with the United States Environmental Protection Agency (“EPA”), has initiated a recycling program to properly handle its residents’ spent fluorescent light bulbs.

An EPA inspection of various Yonkers buildings in 2008 led to a City citation for violating the Resource Conservation and Recovery Act (“RCRA”), which governs the storage, treatment, and disposal of hazardous waste. Under RCRA, mercury-containing bulbs, such as fluorescent bulbs, must be handled as hazardous waste and, therefore, must be disposed of in a special licensed facility. Alternatively, if the bulbs are properly recycled they can be handled under universal waste rules, which greatly simplifies the accounting of their disposal and lifts other federal requirements.

Under the Code of Federal Regulations, a Small Quantity Universal Waste Handler accumulates less than 5,000kg of universal waste on site at any one time whereas a Large Quantity Universal Waste Handler accumulates 5,000kg of universal waste or more on site at any one time. 5,000kg is roughly the equivalent of 18,000 4’ linear T12 fluorescent bulbs or 27,000 4’ linear T8 fluorescent bulbs. The City of Yonkers is defined under the Agreement as a Small Quantity Generator, that is, a generator of less than 1,000kg of universal waste per month. This is roughly the equivalent of 3,600 4’ T12 fluorescent bulbs or 5,400 4’ linear T8 fluorescent bulbs.

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Last month, the New Jersey Supreme Court issued an opinion in Town of Kearny v. Discount City of Old Bridge, which refined and further complicated the process of condemning a leasehold interest. The decision also called into question condemnation provisions in existing leases.

The atypical facts in the case likely led to the complex conclusion. The Town of Kearny designated an industrial area as an area in need of redevelopment pursuant to the Local Redevelopment and Housing Law. At least one property owner, who leased its property to various lessees, objected to the designation and subsequent adoption of the redevelopment plan and designation of a redeveloper. Years later, after the original redeveloper dropped out, Kearny designated the complaining landlord as the redeveloper. The landlord then requested that Kearny condemn the leasehold interests on the property so that the landlord could hold the property free and clear of the leasehold interests.

The landlord, acting on behalf of Kearny in the condemnation proceeding, offered one of the tenants $250,000, including $50,000 for relocation costs, for the value of its leasehold. The tenant submitted a counteroffer of $3 million, which was rejected. No appraisals or further negotiations took place.

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