Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

Category Archives: Environmental & Green Issues

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Market Growth of Fuel Cell Products Follow Patent Growth of Fuel Cell Technologies

Posted in Environmental & Green Issues
Recently, Wal-Mart placed an order for 1,738 fuel cell powered forklifts that move products in Wal-Mart’s warehouses. This highly publicized order spotlights the emerging commercial markets, the technologies and patents that have made the production of energy through fuel cells more cost effective. The commercial use of fuel cells is certainly not new, however. Advancements in the technology have decreased costs associated with the production of energy from fuel cells and consequently there has been a rise in the commercial use of fuel cells. The Clean Energy Patent Growth Index shows that for the last decade fuel cell related patents outpaced all other clean energy technology patents until 2013 when solar patents for the first time surpassed fuel cell patents… Continue Reading

Susanne Peticolas Authors Section on Bankruptcy for NJ Environmental Law Handbook

Posted in Development/Redevelopment, Environmental & Green Issues
Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, contributed a section on environmental issues in bankruptcy to the 8th edition of the New Jersey Environmental Law Handbook. Her section discusses the issues created by the conflicting policies underlying bankruptcy law, focusing on a fresh start for the debtor, as well as environmental law, which focuses on making the polluter pay. The section covers a wide range of relevant topics, including which environmental claims are bankruptcy “claims,” how environmental claims are impacted by the automatic stay, the identity of the claim holder, and the relief that is being sought… Continue Reading

Having Trouble Filling Out the New SEQRA Environmental Assessment Forms? NYS DEC Has Scheduled a Series of Webinars to Help Shed Some Light on the Streamlined and Revised Forms

Posted in Development/Redevelopment, Environmental & Green Issues
It’s been six months since the new model State Environmental Quality Review Act (SEQRA) Environmental Assessment Forms (EAFs) became effective on October 7, 2013, and many individuals are still scratching their heads on how to efficiently and effectively complete the forms. In an effort to assist and instruct government agencies and the public on how to use the new model EAFs, the New York State Department of Environmental Conservation (NYS DEC) has announced a series of webinars to be held this spring. The webinars are designed to demonstrate how the new EAFs, the web-based framework for the guidebooks developed by NYS DEC, and the EAF Mapper, a software mapping program, work together to streamline the EAF completion process by both project sponsors (applicants) and reviewing agencies… Continue Reading

EPA and Army Corps Propose to Clear the Mud Stirred Up by Rapanos

Posted in Environmental & Green Issues
In 2006, the U.S. Supreme Court created great confusion in Rapanos v. United States over what wetlands fell within the coverage of the Clean Water Act (CWA) by setting out two separate tests for jurisdiction, one in the four-justice plurality opinion led by Justice Scalia, and one in a separate concurrence by Justice Kennedy. In an attempt to resolve the confusion, the Environmental Protection Agency (EPA) and the Army Corps of Engineers jointly released a draft rule. The rule is intended to clarify what streams and wetlands are covered by the Clean Water Act… Continue Reading

Divisibility Under CERCLA

Posted in Environmental & Green Issues
Although not expressly required under the statute, applied joint and several liability has usually been applied by courts when the government pursues cleanup against polluters under CERCLA. A party seeking to avoid joint and several liability has the burden of proving not only that divisibility of harm is possible amongst potentially responsible parties, but that a reasonable basis for such divisibility exists. Case law from federal district courts, circuit courts, and the U.S. Supreme Court makes it clear that satisfying this burden requires a very case-specific and fact intensive inquiry. Early planning and a focused strategy for how to frame the facts and theory of the case can make the difference in determining whether divisibility is both possible and reasonable… Continue Reading

Remedial Investigation Extension Application Deadline Further Extended to March 21, 2014 by NJDEP

Posted in Environmental & Green Issues
The New Jersey Department of Environmental Protection (“NJDEP”) has announced that it will continue to accept applications for the two year extension from the May 7, 2014, deadline to complete remedial investigations until March 21, 2014, due to the high number of weather-related statewide closings. Originally, applications had to be filed with NJDEP by March 7, 2014. … Continue Reading

New York City Brownfield Partnership Releases NYU Study on New York State Brownfield Cleanup Program

Posted in Environmental & Green Issues
The New York City Brownfield Partnership, a non-profit public-private partnership promoting the cleanup and redevelopment of brownfield sites in New York City, has just released a study analyzing the impact of the New York State Brownfield Cleanup Program (BCP) on the cleanup and redevelopment of brownfield sites in New York State. The study was directed by Barry F. Hersh, Clinical Associate Professor at New York University's Schack Institute of Real Estate, with financial support from the Partnership. The study provides timely and valuable information to the debate over proposed changes to the program… Continue Reading

Cuomo Budget Proposals Seek to Revise NY State Brownfield Cleanup Program

Posted in Environmental & Green Issues
Governor Andrew Cuomo has proposed major revisions to the New York State Brownfield Cleanup Program (BCP) in the budget he submitted to the state legislature last week. These changes, if enacted, will have a major impact on the types of projects that will be attracted to and accepted into the Program, and the extent to which they are eligible for tax credits… Continue Reading

Remedial Investigation Deadline Extended to May 7, 2016 if Conditions Met

Posted in Environmental & Green Issues
A number of Responsible Parties are breathing a sigh of relief. On January 21, 2014, Governor Christie signed legislation authorizing a two year extension for Responsible Parties to complete their remedial investigations before risking being placed under direct oversight of the New Jersey Department of Environmental Protection (NJDEP). The deadline has been extended from May 14, 2014, to May 7, 2016, under certain circumstances. Pursuant to the Site Remediation Reform Act (SRRA), the deadline applies to all site investigations or preliminary assessments that are being conducted to address discharges or contaminated areas of concern that have been or should have been identified on or before May 7, … Continue Reading

EPA Issues Final Rule Authorizing the Use of Electronic Manifests for Hazardous Waste

Posted in Environmental & Green Issues
On January 13, 2014, EPA issued its final rule authorizing the use of electronic manifests for hazardous wastes. The rule implements provisions of the Hazardous Waste Electronic Manifest Establishment Act ("Act") signed into law in 2012, which directed EPA to establish a national electronic manifest system for tracking hazardous waste. Although the final rule has been promulgated, the electronic system to handle electronic manifests will not be available until 2015 at the earliest… Continue Reading

Consensus Developing for Changes to New York State’s Brownfield Cleanup Program

Posted in Environmental & Green Issues
A remarkable consensus is emerging regarding proposed changes to New York State's Brownfield Cleanup Program. That consensus is reflected in recommendations made over the past several weeks by groups with membership and interests as diverse as the Environmental Justice Alliance, the Real Estate Board of New York, and the Environmental Law Section of the New York State Bar Association… Continue Reading

Aquaponics Firm Wins 2013 Cleantech Open Global Ideas Award

Posted in Environmental & Green Issues
ECF Farm Systems, a German company pioneering turnkey containerized fish and vegetable farming units for urban areas, won the prestigious Cleantech Open Global Ideas Award for 2013. Cleantech is the world's largest clean technology accelerator. Often called the "Academy Award" of clean technology, the Global Ideas competition, in its fifth year, attracts early-stage start-ups with cutting edge clean technology ideas from around the world. The competitors are the national winners of the competitions in their own countries. ECF Farm Systems was selected from 28 finalists… Continue Reading

Gibbons Real Property & Environmental Department Ranked in 2014 Best Law Firms

Posted in Development/Redevelopment, Environmental & Green Issues, Transactional Real Estate & Leasing
Gibbons P.C. is proud to announce that five practices within its Real Property & Environmental Department have achieved national and metropolitan rankings in the 2014 edition of Best Law Firms, published by U.S. News and Best Lawyers®, the oldest and most respected peer-review publication in the legal profession. In addition, 11 attorneys in the Department have been individually ranked… Continue Reading

May 14, 2014 Remedial Investigation Deadline Approaching for Discharges Discovered Prior to May 7, 1999

Posted in Environmental & Green Issues
Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment… Continue Reading

May 7, 2014 Remedial Investigation Deadline Approaching for Discharges Discovered Prior to May 7, 1999

Posted in Environmental & Green Issues
Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment… Continue Reading

“Removal vs. Remedial Action? – That is the Question” Second Circuit Answers “Removal” and Vacates District Court’s Grant of Dismissal on CERCLA Statute of Limitations Grounds in State of New York v. Next Millenium Realty, LLC

Posted in Environmental & Green Issues
Environmental attorneys have long wrestled with the issue of whether particular clean-up activities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) fall under the statute of limitations for remedial actions, considered to be permanent responsive action, or for removals, considered to be interim remedial measures to address immediate threats to public health. In a governmental cost recovery action, guessing wrong can deprive a federal or state governmental entity of its ability to recover its clean up costs from Potentially Responsible Parties. In State of New York v. Next Millenium Realty, LLC, the Second Circuit vacated the District Court's determination, holding that once an activity is instituted as a removal, it remains a removal until completion, even if it is incorporated into the final permanent remedy… Continue Reading

The Third Circuit Parts Ways with the Second Circuit When it Comes to Contribution Rights Under CERCLA

Posted in Environmental & Green Issues
In Trinity Industries, Inc. v. Chicago Bridge & Iron Co., the Third Circuit Court of Appeals held that a party that has resolved its environmental liability only under state law may nevertheless pursue contribution from other responsible parties under the federal CERCLA statute, at least in some instances… Continue Reading

New Jersey Supreme Court Holds That Claimants in Continuous-Trigger Environmental Coverage Cases Must Exhaust Policy Limits of Solvent Carriers Before Seeking Payment From Fund for Insolvent Carriers

Posted in Environmental & Green Issues
Almost twenty years after establishing a methodology for allocating remediation costs among insurance policies in so-called "long-tail" cases, the New Jersey Supreme Court was faced with a new question: what happens when one of the insurers is insolvent? Applying a 2004 statutory amendment and interpreting it as reversing the result in a 1997 Appellate Division case, the Court held, in Farmers Mutual Fire Insurance Company of Salem v. New Jersey Property-Liability Insurance Guaranty Association that in such a case the policy limits of all solvent carriers must be exhausted before a claimant can recover any benefits from a special statutory fund created to stand in the place of insolvent insurers. The decision has important ramifications for corporations with complex insurance programs and potential environmental issues regarding sites where contamination may have been present over many years… Continue Reading

Throw Out Your Old SEQRA Forms – The Revised Model SEQRA Environmental Assessment Forms Take Effect October 7, 2013

Posted in Development/Redevelopment, Environmental & Green Issues
Among the many sweeping changes made in recent years to New York's State Environmental Quality Review Act ("SEQRA"), including pending SEQRA amendments and a revised SEQRA handbook, are the adoption of revised model environmental assessment forms (EAFs). The new forms were adopted by the New York State Department of Environmental Conservation (NYCDEC) back in January of 2012 and become effective as of Monday, October 7, 2013. The new EAFs can be found on NYCDEC's website… Continue Reading

Appellate Division Finds a Six Year Statute of Limitations Applicable to New Jersey Spill Act Claims

Posted in Environmental & Green Issues
In what is a potential game changing decision, the Appellate Division of the Superior Court of New Jersey, in Morristown Associates v. Grant Oil Company, et al., Docket No. A-0313-11T3 (App. Div. Aug. 23, 2013) recently held that the six year statute of limitations applicable to property damage claims is applicable to private claims pursuant to the New Jersey Spill Compensation and Control Act… Continue Reading

At the Intersection of Environmental and Bankruptcy Laws

Posted in Environmental & Green Issues
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… Continue Reading
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