Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

Tag Archives: Spill Act

New Jersey Supreme Court Finds Neither Plan Approval Nor Complete Remediation are Prerequisites to a Spill Act Contribution Action

Posted in Environmental & Green Issues
In Magic Petroleum Corporation v. Exxon Mobil Corporation, the New Jersey Supreme Court held that a party funding remediation of a contaminated site may bring a contribution claim against other potentially responsible parties (“PRPs”) before completing remediation and prior to receiving the New Jersey Department of Environmental Protection’s (“DEP’s”) written approval of the remediation plan. In so doing, the Court has provided certainty, to a degree, to the environmental remediation process in New Jersey… 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

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

N.J. Appellate Court Clarifies That Owners of Pre-1993 Property Must Prove Due Diligence During Acquisition Under the Innocent Purchaser Defense Codified in the Spill Act

Posted in Environmental & Green Issues
On October 29, 2012, as Hurricane Sandy began its assault on the State, a New Jersey Appellate Court in New Jersey School Developments Authority v. Marcantuone created its own "storm" in Spill Act jurisprudence by holding that purchasers of contaminated property prior to September 14, 1993, can be liable under the Spill Act if they failed to conduct due diligence prior to purchase. In reaching this conclusion, the Appellate Division held that the long-standing 2001 decision in White Oak Funding, Inc. v. Winning had been superseded, in part, by the 2001 amendments to the Spill Act ("2001 Amendments"), which had been adopted a few weeks before the White Oak decision and became effective a week after the decision… Continue Reading

NJ Supreme Court Clarifies Nexus Standard Under Spill Act

Posted in Environmental & Green Issues
In NJDEP v. Dimant, et al., the Department filed suit under New Jersey's Spill Compensation and Control Act (the "Spill Act"), alleging that the defendant, Sue's Clothes Hanger, Inc. ("Sue's"), a dry cleaning business, was responsible for damages related to groundwater contamination on various properties in Bound Brook. The sole evidence supporting DEP's claim for damages against Sue's rested on a pipe that was found dripping perchloroethylene (PCE) onto a driveway in the late 1980s. The trial court judge ruled that the DEP had not sufficiently proved a nexus between the PCE dripping from Sue's pipe in the 1980s and the groundwater contamination at issue. The plaintiffs appealed… Continue Reading

Gibbons Director David A. Brooks to Serve on Panel at NJSBA Mid-Year Meeting 2012

Posted in Environmental & Green Issues
David A. Brooks, a Director in the firm's Real Property & Environmental Department, will be a featured panelist at the New Jersey State Bar Mid-Year Meeting this October in Las Vegas, Nevada. The topic of his seminar is, "Recent Developments in the New Jersey Spill Compensation and Control Act." The program will address various cases decided in the past year or two concerning efforts to establish liability for environmental releases under the "Spill Act." Several of those cases set forth the burden that a plaintiff must meet when using scientific evidence to prove its case. The seminar will discuss the recent rulings and predict where the law on this subject is heading. It is being held on Thursday, October 11, from 10:00 - 11:15 am… Continue Reading

NY Court Denies Summary Judgment in Seemingly Clear-Cut Case Under NY Navigation Law

Posted in Environmental & Green Issues
An upstate Supreme Court Justice has denied summary judgment on liability under Section 181 of the state's Navigation Law against a company whose predecessor owned and operated a petroleum refinery on the site for almost 60 years. The decision in One Flint Street LLC v. Exxon Mobil Corp, et al., Index No. 2011/4470 (July 18, 2012, Monroe Co. Sup. Ct.) establishes a high bar for obtaining summary judgment in Nav Law cases… Continue Reading

Cause for Concern? NJDEP to Score Contaminated Sites Under the Remedial Priority Scoring System

Posted in Environmental & Green Issues
The New Jersey Department of Environmental Protection ("NJDEP") will soon release scores for contaminated properties pursuant to the Remedial Priority Scoring ("RPS") system. The RPS system was mandated by the Spill Compensation and Control Act (N.J.S.A. 58:10-23.16) as amended by the Site Remediation Reform Act ("SRRA")… Continue Reading

Gibbons Environmental Attorneys Publish in New Jersey Law Journal

Posted in Environmental & Green Issues
Irvin M. Freilich, Team Leader of the Gibbons Environmental Practice, Susanne Peticolas and Paul M. Hauge (Director and Associate, respectively) authored the lead article in the Environmental Law section of the February 27, 2012, New Jersey Law Journal. The article, entitled "Step Aside or Step Up?," discusses recent decisions from the New Jersey Appellate Division in Magic Petroleum Corp. v. Exxon Mobil Corp. and from the Third Circuit in Raritan Baykeeper v. NL Industries, Inc. These environmental cases involve the often-confusing doctrine of primary jurisdiction, under which courts -- sometimes -- abstain from rendering a decision in a given case to allow an expert agency to make its own determination first. You can read the entire article here… Continue Reading

NJDEP to Issue Draft Remedial Priority Scores for Contaminated Sites

Posted in Environmental & Green Issues
In the next few weeks, responsible parties for some 12,000 known contaminated sites in New Jersey will be receiving a letter with a draft Remedial Priority Score (RPS) for their particular site compliments of the New Jersey Department of Environmental Protection (NJDEP). The NJDEP has not specified how the rankings will be used, although the RPS system has been described by the NJDEP as "a triage tool to sort sites for further consideration."… Continue Reading

NJDEP Proposes New Rules for Site Cleanups

Posted in Development/Redevelopment, Environmental & Green Issues
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, … Continue Reading

NJICLE Holds its Annual Environmental Law Section Forum

Posted in Development/Redevelopment, Environmental & Green Issues
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… Continue Reading

NJ Proposes to Ban decaBDE Flame Retardant in Products

Posted in Environmental & Green Issues
In February and May of 2011, the New Jersey legislature induced identical bills in the Senate (S 2722) and Assembly (A3915) to ban the manufacture and sale of products containing decabromodiphenyl ether (decaBDE). DecaBDEs are used in plastics for TV cabinets, consumer electronics, wire insulation, back coatings for draperies and upholstery. Growing concerns over the connection between decaBDEs and liver, thyroid and neurodevelopmental toxicity have lead a number of states, countries, as well as the European Union to institute bans… Continue Reading

Updated Guidance From USEPA Concerning Brownfield Redevelopment

Posted in Environmental & Green Issues
Encouraging development of environmentally challenged real estate -- brownfields -- is usually the task of state agencies. In New Jersey the Office of Smart Growth; the Economic Development Authority and the Department of Environmental Protection all offer programs intended to encourage redevelopment of brownfields. However, states are struggling to fund and support their brownfield programs and funds for outreach to potential developers and their allied professionals are in short supply… Continue Reading

Proving Liability for Clean-Up Costs – Nexus; Circumstances and Experts – Lessons from Dimant and DVL

Posted in Environmental & Green Issues
On May 18, 2011, the New Jersey Appellate Division upheld a trial court's decision that the New Jersey Department of Environmental Protection had failed to establish sufficient "nexus" or connection between the operator of a dry cleaner and regional groundwater contamination. In New Jersey Department of Environmental Protection v. Dimant, et al., (Docket A-3180-09T2), the Appellate Division soundly rejected New Jersey's claim that "the Spill Act must be interpreted and applied very broadly to find that any discharge at any time, even a de minimis one, imposes liability on all operators handling that product, and that a direct causal connection between the discharge and the damages need not be established." This sort of argument which asks the court to overlook critical connections is all too common in environmental cases. Indeed, governmental plaintiffs often invoke policy reasons when asking for relaxed nexus requirements whereas private parties seeking contribution frequently call on the courts to shift the burden to the alleged dischargers… Continue Reading

NJDEP Site Remediation Implements Steps to Increase Permit Efficiency

Posted in Development/Redevelopment, Environmental & Green Issues
One perennial criticism leveled at the Department of Environmental Protection ("NJDEP") is that it takes too long to issue permits. There have been a long list of initiatives intended to ensure that the NJDEP makes permit decisions which are predictable and timely. Indeed, Commissioner Martin has repeatedly commented on the need to ensure that NJDEP perform efficiently and focus on servicing all stakeholders - including applicants, and included this goal in his 2010 Vision Statement for the department. At long last, NJDEP appears to be taking concrete steps to implement efficiencies in the permit process. On January 27, 2011, NJDEP announced that it would begin to tackle this problem by changing the way it processes the most common land-use permits for contaminated sites and landfill closures… Continue Reading

USEPA Soliciting Comments on Guidance for Institutional Controls

Posted in Environmental & Green Issues
Institutional controls, regulatory limits on human activity at a site, go by many names. The Department of Defense uses the term "land use controls." ASTM E2091-00 has elected to use the phase "activity and use limitations." Traditional real estate lawyers often think in terms of "covenants" or "easements." Here in New Jersey, the Site Remediation Program uses the term "Deed Notice," while the Freshwater Wetlands Permit Program has adopted the term "Conservation Restriction or Easement," N.J.A.C. 7:7A-1.4. Whatever name they go by, institutional controls are intended to regulate human behavior and are used to supplement environmental remediation efforts by reducing the risk of unintended exposure to residual contamination. As a result, institutional controls are critical to the redevelopment of contaminated real estate and cost-effective clean-ups… Continue Reading

What is NJ’s LSRP?

Posted in Environmental & Green Issues
After over a year since its creation, the nature of New Jersey's Licensed Site Remediation Professional (LSRP) is still unclear. The program, signed into law in May 2009, removes the responsibility for oversight of clean-ups of contaminated sites from the New Jersey Department of Environmental Protection (NJDEP) to a cadre of licensed privately paid professionals. NJDEP will retain direct oversight of more complex sites and will resume direct oversight of LSRP sites under certain circumstances. It will take some time for the kinks in the program to be worked out. Depending on who you speak to, the view of what the LSRP is differs… Continue Reading

Irv Freilich and Susanne Peticolas to Speak on New Jersey’s LSRP Program at ABA Regional CLE Workshop

Posted in Environmental & Green Issues
Irv Freilich and Susanne Peticolas, Directors in Gibbons Real Property & Environmental Department, will be panelists at ABA's upcoming Regional CLE Workshop on October 27, 2010, titled "The Road Ahead: The Obstacles and Pitfalls to New Jersey's Implementation of the LSRP Program" at Seton Hall Law School… Continue Reading

In Rare Application of Waiver Doctrine, Federal Court Holds That New Jersey Gave Up Right to Seek Natural Resource Damages at Contaminated Site

Posted in Environmental & Green Issues
It is difficult for a defendant to avoid a claim by invoking the doctrine of waiver, which requires proof of a clear, unequivocal act showing that the plaintiff deliberately intended to relinquish a known legal right. It is doubly difficult when the plaintiff is the State of New Jersey, against which the application of the doctrine is, in the words of a leading Supreme Court case, to be "most strictly limited."… Continue Reading

NJDEP Proposes Relief From Site Remediation Reform Act Requirements

Posted in Environmental & Green Issues
On October 4, 2010, the New Jersey Department of Environmental Protection (NJDEP) formally proposed revisions to the Site Remediation Reform Act's (SRRA) interim rules. The revisions impact two important components of the interim rules: remediation deadlines and vapor intrusion investigations. These technical amendments are based upon stakeholder input and are intended to reduce the burden on the regulated community and New Jersey's newly minted Licensed Site Remediation Professionals (LSRPs)… Continue Reading

NJDEP and the Terrible, Horrible, No Good, Very Bad Day – Trial Judge Rejects NJDEP’s Approach to Natural Resource Damages

Posted in Environmental & Green Issues
New Jersey's Natural Resource Damage ("NRD") program is cobbled together from an aging policy directive issued in 2003, an Appellate Division decision, NJDEP v. Exxon Mobil Corporation, [393 N.J. Super 388 (App. Div. 2007)] and a handful of lower court rulings on various and sundry motions. There is no specific enabling statute and the agency has never adopted any formal regulations. In short, it's the type of program which is bound to leave the regulators, the regulated community (and the lawyers who advise them) with plenty of questions. Because there are no clear rules, New Jersey's NRD program has generated a significant amount of litigation… Continue Reading

The Licensed Site Remediation Professional: Friend or Foe?

Posted in Environmental & Green Issues
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)… Continue Reading
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