Real Property & Environmental Law Alert

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Transactional Real Estate, Development/Redevelopment & Environmental Law

Category Archives: Environmental & Green Issues

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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his campaign, President Trump signed an executive order requiring federal agencies to identify two regulations to be repealed for every new regulation that is created.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.… Continue Reading

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.”… Continue Reading

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.… Continue Reading

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.… Continue Reading

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.… Continue Reading

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.… Continue Reading

Recent New Jersey Case Serves as Warning to Redevelopers of Contaminated Sites

Posted in Development/Redevelopment, Environmental & Green Issues
A recent New Jersey Appellate Division case concerning spoliation of evidence in the context of a contribution action under the New Jersey Spill Compensation and Control Act (“Spill Act”) counsels caution on the part of redevelopers of contaminated sites. The case makes clear that owners of contaminated sites must endeavor to preserve physical evidence related to the contamination as soon as litigation becomes “probable” if they hope to rely on that evidence in a future contribution action.… Continue Reading

Feds Must Consider All Reasonable Alternatives in Endangered Species Analysis

Posted in Development/Redevelopment, Environmental & Green Issues
Recently, the D.C. Circuit threw out the United States Fish & Wildlife Service’s (“FWS”) approval of a conservation plan to reduce the impacts of a proposed wind turbine farm on endangered Indiana bats. In Union Neighbors United Inc. v. Jewell, et al., Docket No. 15-5147, the Court of Appeals held that FWS failed to consider all reasonable alternatives to Buckeye Wind LLC’s (“Buckeye”) plan to limit bat injuries and deaths resulting from encounters with the proposed turbines as required by the National Environmental Policy Act (“NEPA”).… Continue Reading

William Hatfield, Susanne Peticolas, and Shawn LaTourette Speak at the 2016 Environmental Law Section Forum

Posted in Environmental & Green Issues
William S. Hatfield and Susanne Peticolas, Directors, and Shawn M. LaTourette, an associate, in the Gibbons Real Property & Environmental Department will speak at the annual New Jersey State Bar Association Environmental Section Law Forum on June 24-26, 2016 at the La Mer Beachfront Inn in Cape May, New Jersey.… Continue Reading

EPA Provides Look Into Pending Financial Assurance Regulations

Posted in Environmental & Green Issues
Recently, the United States Environmental Protection Agency (“EPA” or "the Agency") shared some preliminary details regarding its impending proposal of financial assurances regulations for the hardrock mining industry. These regulations, which are still under consideration by the Agency, will likely serve as a harbinger of the financial assurances requirements EPA intends to impose on other industries, and collectively, they have the potential to have a significant financial impact on parties responsible for cleaning up contaminated properties.… Continue Reading

No Need to Wait: Supreme Court Permits Judicial Review of Wetlands Jurisdictional Determinations

Posted in Environmental & Green Issues
As we reported, four years ago, in Sackett v. EPA, the U.S. Supreme Court held that a recipient of a compliance order from the U.S. Environmental Protection Agency (EPA) for allegedly illegal filling of wetlands could directly challenge the order in court, and did not have to wait until EPA filed a lawsuit to enforce the order before obtaining judicial review of its validity. In a recent opinion the Court extended the rationale of Sackett and again lowered the threshold of judicial reviewability, holding that a landowner can seek judicial review of a mere determination by the U.S. Army Corps of Engineers (Corps) that its property contains wetlands whose filling would require a permit under the Clean Water Act.… Continue Reading

U.S. Fish and Wildlife Proposes Changes to Eagle Management Program

Posted in Development/Redevelopment, Environmental & Green Issues
On May 4, 2016, the United States Fish and Wildlife Service (“FWS”) proposed amendments to regulations governing its comprehensive eagle conservation and management program. The proposal follows a successful challenge by environmental groups to FWS’ prior attempt to change its eagle rules, which was tossed out by a federal judge in 2013. The proposed modifications include changes to the manner by which FWS issues permits allowing otherwise prohibited activities which may unintentionally injure or disturb golden and bald eagles.… Continue Reading

Governor Christie Vetoes Offshore Wind Bill

Posted in Development/Redevelopment, Environmental & Green Issues
Recently, Governor Christie vetoed legislation designed to allow additional applications for offshore wind projects seeking approval from state regulators. The now-defunct bill, S988, sponsored by Senators Bob Smith (D-Middlesex) and Jim Whelan (D-Atlantic), sought to allow the New Jersey Board of Public Utilities (“BPU”) to open a 30-day period for the submission of offshore wind project applications. More specifically, the bill would have allowed BPU to accept and approve “a qualified wind energy project that is located in territorial waters offshore of [a] municipality in which casino gaming is authorized,” i.e. a wind project offshore from Atlantic City.… Continue Reading

Remedial Investigation Deadline Looms for New Jersey Contaminated Sites

Posted in Development/Redevelopment, Environmental & Green Issues
In less than three weeks, the statutory deadline to complete a site-wide remedial investigation (“RI”) for many contaminated sites in New Jersey will pass. Any site for which an RI has not been completed will be subject to direct oversight of the New Jersey Department of Environmental Protection (“NJDEP”), which would come with additional costs, less control over the remediation, and other burdens for responsible parties. Accordingly, responsible parties and their Licensed Site Remediation Professionals (“LSRPs”) should do everything in their power to complete an RI by the statutory deadline: May 7, 2016.… Continue Reading

NJ Legislature Considers Invalidating NJDEP Regulations

Posted in Environmental & Green Issues
On June 1, 2015, after significant outreach to the relevant stakeholders, the New Jersey Department of Environmental Protection (NJDEP) released for public comment sweeping proposed changes to the rules governing Coastal Zone Management (CZM), N.J.A.C. 7:7E-1.1 et seq., Stormwater Management (SWM), N.J.A.C. 7:8-1.1 et seq., and the Flood Hazard Area Control Act (FHACA), N.J.A.C. 7:13-1.1 et seq. However, the New Jersey Legislature is poised to use its constitutional authority to find that the proposed regulations are inconsistent with the legislative intent of the enabling statutes.… Continue Reading

No Safe Harbor: State Can Face Liability Under Spill Act

Posted in Environmental & Green Issues
Be careful what you wish for. That may be the message of the Appellate Division’s September 23 opinion in NL Industries, Inc. v. State of New Jersey, No. A-0869-14T3. Affirming a “thoughtful and erudite” 2014 Law Division opinion by Judge Douglas K. Wolfson, the appellate court held that the onerous liability regime of the 1976 Spill Compensation and Control Act (commonly known as the Spill Act), which imposes strict, joint, and several liability for cleanups on both the dischargers of hazardous substances and on the much broader class of parties “in any way responsible” for the hazardous substances, is equally applicable to the State. As a result, the State may be responsible for a portion of the remediation of a contaminated site on the shoreline of Raritan Bay that will likely cost more than $75 million.… Continue Reading

NYSDEC Hears Comments on Proposed Definition of “Underutilized”

Posted in Development/Redevelopment, Environmental & Green Issues
On July 29, 2015, the New York State Department of Environmental Conservation (NYSDEC) conducted a public hearing on its proposed definition of an "underutilized" site for purposes of the 2015 Brownfield Cleanup Act Amendments. As indicated in a prior blog, this definition is critical because being "underutilized" is one of the few ways that a New York City brownfield site can qualify for tangible property credits under the 2015 Amendments.… Continue Reading

Federal Court Finds Divisibility, Ruling in Favor of Volumetric Approach to CERCLA Divisibility in Fox River Sediment Cleanup Case

Posted in Environmental & Green Issues
In the latest development in the litigation over the environmental cleanup of the Fox River in northeastern Wisconsin, the U.S. District Court for the Eastern District of Wisconsin has found that NCR Corporation’s liability for the remediation of a section of the river is divisible—not joint and several under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Fox River is a Superfund site contaminated primarily with polychlorinated biphenyls (PCBs) from historic paper manufacturing and recycling facilities along the river. This opinion is believed to be the first such judicial decision that has ruled in favor of a divisibility defense since the Supreme Court’s 2009 decision in Burlington Northern & Santa Fe Ry. Co. v United States. Whether it is an indication of how Courts may address divisibility and apportionment of cleanup costs at complex sediment sites and other sites in the future remains to be seen.… Continue Reading
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