Posted on August 16, 2011 by Susanne Peticolas

NJDEP Proposes New Rules for Site Cleanups

On August 15, 2011, the New Jersey Department of Environmental Protection (NJDEP) issued proposed Final Rules to implement the Site Remediation Reform Act (SRRA) adopted in May 2009. These rules are intended to be the final implementation step in the phased transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by Licensed Site Remediation Professionals (LSRPs). Instead of NJDEP overseeing every step of a cleanup, the LSRP, licensed by a 13-member Licensed Site Remediation Professional Board with investigative and disciplinary powers, is responsible for making day-to-day decisions about a clean-up. Certain categories of cleanups remain under NJDEP oversight, such as where the responsible party has a history of non-compliance or has failed to meet mandatory deadlines. The rule proposal appeared in the New Jersey Register on August 15, 2011 and can be viewed online. Comments can be submitted until October 14, 2011.

The proposal includes major amendments, repeals and new rules intended to fully implement the new LSRP oversight remediation paradigm. The proposed Final Rules provide for the following:

  • Amending the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) rules, the Underground Storage Tank (UST) rules and the Industrial Site Remediation Act (ISRA) Rules to remove all provisions related to the phase-in period;
  • Recodifying all administrative requirements from the ISRA Rules and UST rules to the ARRCS rules;
  • Adding mandatory timeframes for completion of remedial investigation and implementation of remedial action;
  • Repealing and replacing the current Technical Requirements with new performance-based Technical Requirements, intended to allow more flexibility in addressing contamination and potential exposure pathways. Many of the existing Technical Requirements will be recast as a new series of technical guidance documents providing direction on how to achieve the performance-based goals;
  • Amending the Discharges of Petroleum and Other Hazardous Substances rules to require compliance with both a facility’s discharge cleanup and removal plan and the ARRCs rules; and 
  • Reformatting text where needed to make the rules easier to understand, to correct typographical and grammatical errors, and to update cross-references.

According to NJDEP Commissioner Bob Martin,

It is a priority of the Christie Administration to clean the more than 16,000 contaminated sites across the State. This is an important step to help us more quickly and efficiently achieve that important goal. It will benefit public health and the environment, and will make underutilized properties available more quickly for redevelopment, benefiting economic growth.

The proposed rules were developed with the input of interested stakeholders. A public hearing on the proposed rules is scheduled for September 13 at 9 am in the first floor public hearing room at the DEP building, 401 East State Street, Trenton. NJDEP will accept written comments until October 14, addressed to Janis Hoagland, NJDEP, Office of Legal Affairs, Mail Code 401-041L, PO Box 402, 401 East State Street, 4th Floor, Trenton, NJ 08625-0402, ATTN: DEP Docket No. 12-11-07. The transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by LSRPs presents complex issues for the department and the regulated community. Thus it is important for the regulated community to analyze the proposed rules and take advantage of NJDEP’s efforts to respond to stakeholder comments.


Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.
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Posted on August 4, 2011 by Irvin M. Freilich

EPA Outfoxed on Fox River

In what is described as the country’s biggest Superfund site, Judge William Griesbach of the Eastern District of Wisconsin on July 5, 2011, rejected the United States’ attempts to compel defendants Appleton Papers Inc. and NCR Corporation to comply with an EPA directive requiring sediment remediation in the Fox River at a rate substantially similar to the rate at which they had remediated sediment over the last few years.

A Unilateral Administrative Order issued by EPA in 2007 required the dredging and disposal of approximately 3.5 million cubic yards of sediment from the Fox River, as well as the installation of caps and the use of sand to cover PCB-laden riverbed sediment. In 2009, NCR and Appleton created a limited liability corporation (“LLC”) to perform the work and the LLC entered into a long term contract with Tetra Tech to perform the remediation. Although they dredged 550,000 cubic yards of material in 2009 and 743,000 cubic yards in 2010, NCR and Appleton proposed a reduction in the amount of dredging for 2011. EPA rejected this proposal and instead, issued a work plan requiring the dredging of between 605,000 and 810,000 cubic yards of sediment in 2011.

When NCR and Appleton objected to the work plan, EPA sought a preliminary injunction compelling Appleton and NCR to comply with its proposal. The Court evaluated the criteria used to determine whether preliminary injunctive relief was appropriate. As to the likelihood of success on the merits, both NCR and Appleton claimed that the harm caused to the Fox River was divisible and that they were not subject to joint and several liability under CERCLA Section 107. After careful analysis of the Supreme Court’s 2009 decision in Burlington Northern and Santa Fe Railway Co. v. United States, 129 S. Ct. 1870 (2009) and §433A of the Restatement of the Law, Second, Torts, the Court determined that critical to its analysis was the fact that when the cleanup entails the dredging of PCBs in river sediments, the “cost of cleanup bears little relation to the relative volume of PCB’s released into the River.” Accordingly, it determined that apportioning liability based upon volume was not advisable. It noted that most courts considering the issue analyzed whether the pollution in question could be divided, rather than whether the cost of cleaning up the contamination is separable based upon volume or geography.

Ultimately, the divisibility question is a causation question, and when the case is about cleanup we should be concerned with assessing to what extent the parties’ behavior caused the cleanup expenses rather than which parties caused the pollution itself.

Judge Griesbach concluded that the costs to cleanup the PCB contamination in the Fox River were not reasonably divisible based upon volume.

Alternatively, even viewing the “harm” as the pollution, the Judge determined that the Site was not divisible based upon volume, because of the following factors:

  1. vast quantities of PCB’s have flowed downstream;
  2. what is in the River at this time is not necessarily representative of the pollution released into the River decades ago; and
  3. geography and the flow of the river over 50 years have created a variety of different areas requiring remediation.

The Court also denied NCR’s argument that there was a geographic basis to divide responsibility. NCR failed to link the cost of cleaning up a portion of the River to the specific amounts and locations of the PCB contamination. Because PCBs were found everywhere and because the cost of remediating a given section of the River was not directly dependent on the level of contamination, the Court concluded that NCR would have little likelihood of success showing that certain areas of the River are separable on the basis of geography.

Finally, Appleton argued that the United States was not likely to succeed on the merits because its liability under CERCLA was far from clear. Appleton claimed that its liability was based upon a theory of successor liability which was not applicable under the particular facts of this case. The defendant Appleton was the entity which bought two plants from NCR and agreed to assume certain liabilities from the seller. However, the Court refused to conclude that Appleton was likely to have any liability to the United States because its liability was solely based upon an equitable, successor liability theory, which was a legal theory designed to prevent injustice, but which did not create a wholly new, suable entity. NCR, the seller, remained in existence, and thus, there was no liability for Appleton to “succeed” to. The Court concluded that “when the seller of assets is still in existence and its liability to the government is still “live”, an assumption of liability agreement like the one at issue here does not create liability on the buyers’ part, it merely creates a duty to indemnify the seller.”

Appleton and NCR had created an LLC to perform the remediation and Appleton retained a 60 percent interest in the LLC. Thus, Appleton effectively controlled the cleanup, and the Court concluded that an injunction directed towards NCR would essentially be meaningless, because without Appleton’s concurrence, NCR lacked the ability to achieve the level of remediation that the government wanted.

Unhappy with the Court’s denial of its motion for preliminary injunctive relief, the United States subsequently renewed its motion to compel the parties to resume the remediation of the Fox River. It asked the Court to fashion an equitable remedy under which the LLC would no longer be controlled by Appleton. But having previously determined, preliminarily, that Appleton was not a liable party, Judge Griesbach was unwilling to fashion a “creative solution” under which Appleton would be compelled to give up its control in a company in which it had a controlling interest and denied the renewed motion on July 28, 2011.

Although the Court was faced with a somewhat unique set of facts in this matter, its divisibility analysis must be carefully evaluated and understood for possible applicability in other contaminated sediment cases.


Irvin M. Freilich is a Director in the Gibbons Real Property & Environmental Department.
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Posted on August 2, 2011 by LexBlog

NJICLE Holds its Annual Environmental Law Section Forum

On the weekend of June 24-26, 2011, the New Jersey Institute of Continuing Legal Education (“NJICLE”) in cooperation with the New Jersey State Bar Association (“NJSBA”), and New Jersey Corporate Counsel Association, held its annual Environmental Law Section Forum Weekend (“the Forum”). Taking place in Avalon, New Jersey, the Forum featured three days of seminars covering various hot-button environmental topics including, Funding for Remediating Sites, Vapor Intrusion, the LSRP Program, Non-Governmental Organizations’ Perspectives on Issues and Resolutions, the well-known NJDEP v. Occidental case also referred to as the Lower Passaic River litigation, Climate Change, and rounded out the weekend with two programs on Ethical Issues including Alternative Fee Arrangements and Multi-Party Settlements.

David Brooks of Gibbons P.C. was the moderator and a panelist for the Vapor Intrusion presentation, an issue that has received increased attention in recent years from both US EPA and New Jersey. Other speakers at the Forum included not only legal practitioners but the New Jersey Department of Environmental Protection, Non-Profit Organizations, and Private Sector Companies. Jeannie Fox, President of the New Jersey Board of Public Utilities gave a keynote speech during the Forum focusing on solar issues in New Jersey.

As a testament to the increased interest in environmental topics as well as the historical success of the Forum, program attendance increased over last year. Attendees earned 11.4 Continuing Legal Education credits including several highly sought after ethics/professionalism credits.


Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

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Posted on July 21, 2011 by Gibbons P.C.

Gibbons Recognized as a Leading Firm by Chambers USA

The 2011 edition of the Chambers USA Guide to America’s Leading Lawyers for Business features 10 Gibbons practice areas and 18 individual attorneys ranked in the top tiers. The firm has appeared in the New Jersey section of the Chambers guide since its inception, but the 2011 version includes the highest total number of firm practices and attorneys to achieve the distinction of a Chambers ranking.

“It is a great accomplishment in and of itself to achieve a Chambers ranking, but the addition of new attorneys to the rankings, and the upward mobility within the rankings, are even more impressive,” says Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “What that says is that Gibbons does not rest on its laurels, that the firm and our attorneys are constantly striving to provide ever more exceptional legal and client service.”

Chambers annually rates the nation’s leading business lawyers and law firms through comprehensive interviews with top companies, attorneys, and business executives, plus extensive supplementary research. Chambers and client testimonials, excerpted from this year’s guide, highlight the Gibbons Real Property & Environmental Department that ranked in the guide for New Jersey:

Environmental: Sources confirm that there is little beyond the capabilities of this team, which has in-depth expertise in litigation, regulatory concerns and real estate transactions affected by environmental issues. “A well-managed and responsive practice that seeks to provide the best possible representation in an affordable and pragmatic manner.”

Real Estate: Gibbons offers a broad selection of real estate services. “They are able to provide a deep well of resources, good bench strength and a rapid service.”

In addition, the following members of the Group were among the 18 individual Gibbons attorneys that received glowing reviews in the guide’s individual rankings:

Russell B. Bershad, Real Estate: Market sources consider Russell Bershad to be “easy to deal with, accessible and well connected within the business community. “He is hugely admired for his skillful handling of real estate financing, leases and transactions.”

Irvin M. Freilich, Environmental: Irvin Freilich has a wealth of experience in cost recovery and environmental litigation actions. His arrival at the firm added “a welcome layer of depth to the capabilities of the group.”

John H. Klock, Environmental: John Klock possesses a strong construction background that lends itself well to his site remediation work. Clients pay tribute to his “fantastic intellect and skillfulness in meeting our needs.”

Edward F. McTiernan, Environmental: Edward McTiernan oversees much of the team's work in his capacity as practice leader and is felt to be “indispensable in dealing with the very largest of projects.”

Susanne Peticolas, Environmental: Susanne Peticolas wins the acclaim of interviewees as a result of her “strategic, cost-conscious approach” and “practical engagement” with clients' concerns.
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Posted on June 21, 2011 by Sandro G. Ocasio

EPA to Announce the Possibility of Adding Vapor Intrusion as a Component to the Hazard Ranking System

On Monday, January 3, 2011, the Environmental Protection Agency published in the Federal Register, 76 Fed. Reg. 5,370 (Jan. 31, 2011), a Notice of Opportunity for Public Input on the Potential Addition of Vapor Intrusion Component to the Hazard Ranking System (the “HRS”). Should this proposal become a rule it would add another contamination pathway to analyze in connection with listing sites on the National Priorities List (the “NPL”).

The HRS is the principal tool used by EPA to determine which contaminated sites to place on the NPL. Under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), which was enacted in 1980 and amended in 1986 by the Superfund Amendments and Reauthorization Act (“SARA”), EPA was required to develop a mechanism to identify sites posing the most serious and immediate threat to the environment or human health and create the list of those sites, constituting the NPL. The HRS was developed to handle that directive.

The HRS is a numerical system that takes into account four potential contamination pathways: 1) groundwater migration; 2) surface water migration; 3) soil exposure; and 4) air migration. During the preliminary assessment and site inspection phase of a site remediation, these four pathways are evaluated using three categories: 1) likelihood that a site has released or has the potential to release hazardous substances into the environment; 2) characteristics of the waste; and 3) people or sensitive environments affected by the release. A score is assigned to each pathway based on this analysis and a formula is employed to determine an overall score, which ranges from 0 to 100. A site with a score of 28.50 or more is eligible to be placed on the NPL.

Vapor intrusion is the product of subsurface contamination entering into overlying structures which then are released into the structure in the form of vapor. This creates a threat to individuals inhabiting the structure who may inhale or ingest the contaminant. Currently, vapor intrusion is not a pathway of concern under the HRS. However, in May 2010, the Government Accountability Office (the “GAO”) issued a report entitled “EPA’s Estimated Costs to Remediate Existing Sites Exceed Current Funding Levels, and More Sites are Expected to Be Added to the National Priorities List.” In it, the GAO concluded that there is the potential for unacceptable human exposure to contamination if vapor intrusion is not addressed through the HRS. The GAO recognizes that sites that possess vapor intrusion contamination may be placed on the NPL due to other pathways. However, the report notes that there are contaminated sites that do not qualify for the NPL but would if vapor intrusion factored into the scoring.

EPA engaged in public outreach regarding this topic and held several listening sessions to facilitate public participation. The public comment period closed on April 16, 2011. EPA received about 60 comment letters in response to the EPA announcement. The vast majority of the respondents favor adding vapor intrusion to the HRS as a benefit to the public health. These include United States Senator for New Jersey, Robert Menendez, and the New Jersey Department of Environmental Protection, as well as professors, attorneys, community groups, and others. The Utility Solid Waste Activities Group (“USWAG”), an association of over 100 utilities, energy companies and associations, and utility operating companies take the position that the addition of a vapor intrusion pathway to the HRS is unnecessary. USWAG believes, among other things, that vapor intrusion sites will be eligible for placement on the NPL based on already existing pathways under the HRS. Furthermore, USWAG contends that the addition of a vapor intrusion component will impose significant costs on the Superfund program and would not lead to quicker site remediation.

EPA has reviewed the feedback and expects to issue a Notice of Proposed Rulemaking by January 2012.


Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.
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Posted on June 9, 2011 by John H. Klock

U.S. Supreme Court to Montana: "Stay Thirsty, My Friend."

The Supreme Court in Montana v. Wyoming --U.S.--, 131 S.Ct. 1765 (2011), rejected Montana’s claim that Wyoming’s usage of water depleted the amount of water available to it under the Yellowstone River Compact between Montana and Wyoming. Montana contended that Wyoming breached Article V(A) of the Compact which provided that “appropriative rights to the beneficial uses of the water of the Yellowstone River System existing in each signatory State as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation.”

Better farming techniques of irrigation developed since 1950 have allowed Wyoming farmers to divert the same amount of water but have resulted in reducing the amount of water returning to the river as run off. It is as though Wyoming farmers had been using leaky buckets for irrigation that returned water to the river in 1950, but later bought new buckets that didn’t leak, giving the farmers more water and more use of it, reducing the amount of water returned to the river and available to the downstream Montana users.

The concept the Court focused on was “beneficial use” and diversion, not depletion. The Court considered appropriation as a water right that once it is perfected, “is senior to any later appropriators' rights and may be fulfilled entirely before those junior appropriators get any water at all.” Thus in the Court’s view, as long as Wyoming farmers diverted the same amount of water in 2011 as in l950, they did not violate the compact, even if the diversion caused depletion of the water resources.

The sole dissent was Justice Scalia who focused on the notion of depletion rather than diversion since that was the word used in the Compact. He noted that “beneficial use” in the Compact was defined as one “by which the water supply of a drainage basin is depleted when usefully employed by the activities of man.” He argued that the majority had essentially written the word out of the Compact. There was no question that Wyoming farmers depleted the river by their better irrigation techniques.

As the world faces depletion of fresh water resources by declining glaciation, increased drought in drought-prone regions, and increases in population, the common law adage of “first in time, first in right” may cause real problems for downstream users who may face increased salinity and reduced water volume.


John H. Klock is a Director in the Gibbons Real Property & Environmental Department.

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Posted on June 8, 2011 by Sandro G. Ocasio

New Jersey Program to Fund Brownfield Clean Ups Closed Temporarily

The Brownfield Reimbursement Program (the “Program”), a New Jersey State initiative designed to reimburse developers up to 75% of costs incurred to remediate a brownfield site, has run out of money and is temporarily shut down. This development arrives on the heels of a recent New Jersey Department of Environmental Protection (“NJDEP”) announcement that, effective May 3, 2011, applications to the Underground Storage Tank Fund, a similar initiative to help homeowners remove USTs, will not be reviewed or processed due to insufficient funds.

Effectuated under the Brownfields and Contaminated Site Remediation Act of 1998, the Program was available to any party that is not liable under the Spill Compensation and Control Act N.J.S.A.58:10-23.11g. Funding for reimbursement under the Program was derived from tax revenues and appears to be a victim of the general budget crisis.

This announcement will no doubt stifle future remediation and development of New Jersey’s many brownfield sites for some time. Even if the program gets back on track, NJDEP will be forced to deal with a backlog of applications. According to Irene Kropp, NJDEP Deputy Commissioner, there are currently $71 million worth of Program applications that have not yet been processed. Those already in the queue must be processed prior to the review of any new submissions.

For more information on brownfields generally, please visit NJDEP’s brownfields website.


Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.
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Posted on June 7, 2011 by Gibbons P.C.

David A. Brooks to Moderate Panel at 2011 New Jersey Environmental Law Forum

On Friday, June 24, 2011, David A. Brooks, Counsel to the Gibbons Real Property and Environmental Department, will moderate a panel, “Vapor Intrusion: Old Problems - New Rules” at the 2011 Environmental Law Section Forum Weekend presented by the New Jersey State Bar Association and the New Jersey Institute for Continuing Legal Education and co-sponsored by the New Jersey Corporate Counsel Association. This full weekend program presents an annual update on environmental law in New Jersey and will also include panels discussing funding for remediation projects, New Jersey’s licensed site remediation professional program, litigation related to the remediation of urban river systems, the role of non-governmental organizations, renewable energy and climate change, and ethical issues.

The conference will be held at the Golden Inn in Avalon, New Jersey from June 24, 2011 through June 26, 2011. Please click here to register.

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Posted on April 29, 2011 by Irvin M. Freilich

Cost Recovery Under Superfund - The Eighth Circuit Fills the Void Created by the United States Supreme Court in the Atlantic Research Decision

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.

On July 3, 2008, the City and Morrison sued Dravo under §§107 and 113(g)(2) of CERCLA; they did not assert a claim under §113(f) of CERCLA. The City and Morrison argued that the costs incurred to construct and operate the groundwater remediation system could be recovered under §107. The District Court concluded that CERCLA §113(f) was the exclusive remedy available to a party that incurs response costs pursuant to an administrative order or a judicially approved consent decree. It also found that the City’s §107 cost-recovery claim for replacement of the City’s water system was barred by the applicable statute of limitations, and refused to allow Morrison’s motion for leave to amend its complaint to assert a claim under §113.

On appeal, the Eighth Circuit affirmed the decision of the District Court. Relying upon the Atlantic Research decision, the Court noted that §107(a)(4)(B) was only available to a private party who had voluntarily incurred response costs and that §113(f) allowed a contribution claim for a person who is liable or potentially liable under §107(a) during or following a civil action under §§106 or 107. It declined to allow a party with a §113(f) claim to also proceed under §107(a), because doing so would in effect, “nullify the SARA amendment and abrogate the requirements Congress placed on contribution claims under §113” quoting from Niagra Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2nd Cir. 2010). The Eighth Circuit also relied upon pre Atlantic Research cases limiting a liable party to claims under §113. See Dico, Inc. v. Amoco Oil Co., 340 F.3d 525, 531 (8th Cir. 2003). Although the Supreme Court had noted the potential overlap between §107(a) and §113(f), in not only the Atlantic Research decision but also in Key Tronic Corp. v. United States, 511 U.S. (816) (1994), the Eighth Circuit determined that there was no overlap for a liable party compelled to incur response costs pursuant to an administrative order or a judicially approved settlement.

The decision highlights the need to assert all possible bases for recovery in cost recovery cases, given the complexities of CERCLA and the divergent and oftentimes conflicting interpretations of it.


Irvin M. Freilich is a Director in the Gibbons Real Property & Environmental Department.
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Posted on April 26, 2011 by David A. Brooks

Vapor Intrusion: Opportunity for Comment with EPA

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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Posted on September 22, 2010 by David A. Brooks

The Lighter Side of LSRP: Opportunity to Reduce Remediation Funding Source in New Jersey

With the advent of New Jersey’s LSRP program comes an added financial benefit for environmental remediation matters requiring a remediation funding source (“RFS”). There is an opportunity to save on the statutory annual 1% surcharge on an RFS, especially useful for those sites subject to the requirements of the Industrial Site Recovery Act.

Among the new remediation requirements in the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C (“ARRCS”) is an annual remediation cost review to be submitted to the NJDEP on a Remediation Cost Review Form. N.J.A.C. 7:26C-5.10. For new sites subject to the LSRP program and for older sites that have opted-in to the LSRP program, the form must be certified by the site’s LSRP.

Based on the revised cost of the remediation developed in conjunction with the annual review (though this can also be done at other times as well), the person required to establish it, may reduce the amount of the RFS upon submission of the remediation cost review form to the NJDEP. N.J.A.C. 7:26C-5.11. So long as its certified by the LSRP, there is no need to obtain NJDEP approval of an RFS reduction. Of course, such a reduction is ultimately subject to the NJDEP’s broad rights of review of all documents and submissions. N.J.S.A. 58:10C-21. Thus, if the RFS is reduced by the LSRP, then, the 1% RFS surcharge required by 7:26C-5.9 will accordingly be reduced. In addition, to the extent the cost of the RFS itself is driven by the amount (such as with letters of credit), there will be further cost savings. For those sites subject to an ISRA Remediation Agreement with high initial remediation cost estimates that have not been reviewed recently, there may be an opportunity for a substantial cost savings.

For those sites with a remediation trust fund as an RFS, the NJDEP is currently developing a new form of trust agreement to replace the current form which continues to require NJDEP approval for reductions and withdrawals.

Please note that by using a self guarantee as a RFS, a responsible party can continue to avoid the 1% surcharge altogether. See N.J.A.C. 7:26C-5.9.


David A. Brooks is an Associate in the Real Property & Environmental Department.
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Posted on August 2, 2010 by David A. Brooks

NJ LSRPs Open to Frivolous Claims

Despite the new licensing program for environmental consultants in New Jersey, they still remain open to professional tort claims without the necessity of an affidavit of merit. As required by N.J.S.A. 2A:53A-27, a plaintiff making a claim for malpractice or negligence against a “licensed person” must provide an, “affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.”

Fifteen different types of “licensed persons” are subject to this requirement. N.J.S.A. 2A:53A-26. However, “licensed person” does not include “environmental consultants” broadly, though environmental engineers, licensed pursuant to N.J.S.A. 45:8-27, do fall within the definition of “licensed persons.” Those environmental consultants who are geologists by education and training and/or in the past, licensed pursuant to the requirements of the Underground Storage Tank Certification Program, N.J.S.A. 58:10A-24.1-8, are not included within the definition of “licensed person.”

In establishing Licensed Site Remediation Professionals (“LSRP”) in the Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq., the legislature did not add LSRP’s to the definition of “Licensed Person” for purposes of compliance with New Jersey’s affidavit of merit statute. Perhaps the issue is the mandate of the LSRP to, first and foremost, protect the “public health and safety and the environment,” N.J.S.A. 58:10C-16, as opposed to first serving the interest of their clients, though requiring an affidavit of merit does not appear to be inconsistent with such broad goals. In any event, LSRP’s must be aware that this new license alone does not appear to afford them the potential protections from frivolous law suits afforded by the affidavit of merit statute.


David A. Brooks is an Associate in the Gibbons Real Property and Environmental Department.

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Posted on July 29, 2010 by John H. Klock

In the 9th Circuit, Under CERCLA, the Cleanup Hitter or Liable Owner is the One on Deck When the Cleanup Occurs, Not When the Suit is Instituted

Believe it or not, in the 30 years of recorded decisions under CERCLA, the issue of who is an “owner” has not been decided, according to the Ninth Circuit Court of Appeals in California v. Hearthside Residential Corp., case number 09-55389 (Decided July 22, 2010).

CERCLA Section 107(a)(1) imposes liability on the current "owner and operator of a . . . facility." 42 U.S.C. § 9607(a)(1). In the Hearthside case, Hearthside Residential Corporation ("Hearthside") sold the property in question before the State of California sued it for reimbursement of clean-up costs. The Ninth Circuit determined that ownership for the purposes of CERCLA liability must be determined at the time of cleanup. The Court distinguished United States v. Fleet Factors Corp., 901 F.2d 1550, 1554 (11th Cir. 1990), abrogation on other grounds by statute recognized in Monarch Tile, Inc. v. City of Florence, 212 F.3d 1219, 1221 n.2 (11th Cir. 2000) by noting that Fleet Factors did not decide the temporal feature of when one is an owner for CERCLA liability. Other courts have interpreted the Fleet Factors case to impose owner liability on a party that owned or operated the facility at the time of the filing of the complaint. The Ninth Circuit noted that the Fourth and Sixth Circuits, while not squarely deciding the issue, in dicta suggested that the liable owner was an owner at the time of remediation or cleanup.

The Hearthside decision comes on the heels of two decisions recently decided by Judge Robert Bryan in the Western District of Washington State, in United States v. Washington State Department of Transportation, and discussed in an earlier blog determining what is a "'facility’ under CERCLA and interpreting 'arrranger.'" Judge Bryan’s “facility” decision was a case of first impression, while his "arranger" opinion built on the U.S. Supreme Court decision in Burlington Northern v. United States, 129 S.Ct. 1870, 1875-76 (2009).

Notwithstanding thirty years of CERCLA decisions, the courts are only now coming to determine the meanings of basic terms like "arranger," "facility," and "owner." Clearly it pays to follow basic law school advice and read the statute!


John H. Klock is a Director in the Gibbons Real Property & Environmental Department.

 
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Posted on July 15, 2010 by Gibbons P.C.

Gulf Coast Spill Impacts Legislation in Trenton, NJ

This summer, the long shadow cast by the oil rig blow-out in the Gulf of Mexico seems to be everywhere. For example, we recently reported that EPA has written to Congress endorsing the concept of reinstating the Superfund tax which expired back in 1995. Thus, it was only a matter of time before New Jersey got into the act.

On July 15, 2010, the Senate Environment and Energy Committee in Trenton took up S-2108. If adopted in its present form this bill would raise the limit on liability pursuant to the New Jersey Spill Compensation and Control Act from $50 million to $1 billion.

It is easy to question the necessity of increasing the limit on Spill Act liability. After all, the Spill Fund is used primarily to address contamination from land based facilities. If New Jersey were to experience an event where the total damages could exceed $50 million there is already overlapping state and federal authority under CERCLA, RCRA and the Oil Pollution Act of 1990.

It remains to be seen whether this sort of legislative reaction to a long hot summer of bad news from the Gulf will resonate with the new business friendly administration in Trenton. But it is already clear that the events in the Gulf have reached Trenton.

*Photo courtesy of EPA.

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Posted on June 28, 2010 by Gibbons P.C.

Site Remediation Process - NJ to Develop Remedial Priority System

New Jersey is pressing forward with its efforts to privatize the site remediation process. Since adoption of the Site Remediation Reform Act (SRRA) in May 2009, there has been a steady stream of new regulations, new guidance documents and revised forms. Because of these changes, practitioners must constantly check the New Jersey Department of Environmental Protection’s website.

As part of the SRRA, the Legislature directed NJDEP to develop a remedial priority system. This system will combine readily available information about site specific characteristics and contamination with public data about receptors to develop a risk index. (This process should sound familiar to anyone who has worked with EPA’s Hazard Ranking System outlined in its complex Final Rule.)

The remedial priority system will dictate how NJDEP allocates its scarce resources when performing remediation outside the private Licensed Site Remediation Professional program. In addition, the priority system will impact which sites find their way into the direct oversight program.

NJDEP is forming a task force of interested parties to work on the remedial priority system. Nominations closed on June 18, 2010. Additional information is available about the mission of this novel task force at the Site Remediation Program’s website.
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Posted on January 28, 2010 by Paul M. Hauge

Determining What Standards Apply to Your Site Just Got Easier

Without changing a single standard, NJDEP may have made it easier to comply with its many surface water, groundwater, drinking water, and soil remediation standards by compiling a useful on-line compendium of selected environmental standards. Standards can change, though, so the prudent developer, consultant, or attorney will check the New Jersey Administrative Code before making any decisions.


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

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Posted on January 27, 2010 by Paul M. Hauge

Keeping Up With SRRA Developments

The passage in 2009 of the Site Remediation Reform Act (SRRA) introduced a great deal of uncertainty into the site cleanup process. The procedures, paperwork, and terminology of the site cleanup process have changed. NJDEP has developed a web page to help the public to stay abreast of all SRRA developments, including information such as the new Administrative Requirements for the Remediation of Contaminated Sites (ARRCS Rules).


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

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Posted on December 28, 2009 by Susanne Peticolas

The Licensed Site Remediation Professional: Friend or Foe?

November 3 marked the launching of the Licensed Site Remediation Professional (“LSRP”) program in earnest. On that date, all new remediation projects in New Jersey must be performed under the supervision of an LSRP, a new type of environmental professional mandated by the Site Remediation and Reform Act (“SRRA”). L. 2009, c. 60, Sections 1-29 (codified at N.J.S.A. 58:10C-1 to -29).

The complete article, as published in New Jersey Law Journal, can be viewed here.


Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.

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