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Environmental Obligations for Businesses in New York During the Coronavirus Pandemic

Environmental Obligations for Businesses in New York During the Coronavirus Pandemic

The pandemic caused by the novel coronavirus, or COVID-19, has slowed business—and activity in general in many areas of the United States—to a crawl. New York State is one of the places hit hardest by this pandemic. Indeed, at the time of this writing, New York has the highest number of confirmed COVID-19 cases in the country. Unfortunately, the spread of the virus shows no signs of relenting. Nonetheless, manufacturing, the real estate industry, and other regulated businesses continue to face environmental reporting obligations, regulatory deadlines, and potential penalties for non-compliance. Businesses and other property owners are dealing with remediation deadlines, as well as operation and maintenance obligations of environmental controls. Businesses are also rightly concerned about reporting requirements under various permits, including under such federal permitting programs as the Resource Conservation and Recovery Act and others. Meeting these obligations has become significantly complicated by the pandemic and the ancillary issues it has brought on, such as the illness of key personnel, inaccessible facilities, and other impediments. On March 20, 2020, Governor Andrew Cuomo signed Executive Order 202.8, which directs that all “non-essential” businesses implement remote work policies for 100 percent of their respective workforces, effective March 22 through April...

Governor Murphy Continues to Develop Climate Change Resiliency Strategy for New Jersey

Governor Murphy Continues to Develop Climate Change Resiliency Strategy for New Jersey

Building on his vision to develop a Statewide Climate Change Resiliency Strategy launched last year by signing Executive Order 89, on January 27, 2020, Governor Murphy signed Executive Order 100 (EO 100), which the Governor’s office described in a press release as directing the “most sweeping set of climate change reforms in the nation.” The EO labels the reforms as the “Protecting Against Climate Threats” regulations, or “PACT.” EO 100 references the State’s Global Warming Response Act (“GWRA”), N.J.S.A. 26:2C-37, et seq., and the updated Energy Master Plan, which outlines seven “key strategies and includes an implementation plan that lays out next steps and timelines.” The seven key strategies are: 1) reducing energy consumption and emissions from the transportation sector; 2) accelerating deployment of renewable energy and distributed energy resources; 3) maximizing energy efficiency and conservation, and reducing peak demand; 4) reducing energy consumption and emissions from the building sector; 5) decarbonizing and modernizing New Jersey’s energy systems; 6) supporting community energy planning and action in underserved communities; and, 7) expanding the clean energy innovation economy. It is in furtherance of these “key strategies” that EO 100 directs DEP to draft and implement “the sweeping suite of climate change regulations.”...

Governor Murphy Signs Executive Order Addressing Climate Change Resiliency for New Jersey

Governor Murphy Signs Executive Order Addressing Climate Change Resiliency for New Jersey

As storms like Superstorm Sandy continue to grow more devastating and frequent, communities, governments, businesses, and industries of all sizes and varieties must face the challenge of adapting to a changing climate. October 29, 2019 marked the seventh anniversary of Sandy hitting New Jersey. Governor Murphy marked this occasion by signing Executive Order 89, which calls on the Department of Environmental Protection (DEP) to establish a Statewide Climate Change Resilience Strategy, among other initiatives related to climate change adaptation. “New Jersey is extremely vulnerable to the impacts of sea-level rise and global warming, and [this] Executive Order outlines a bold and comprehensive set of actions to ensure that our communities and infrastructure are more resilient against future storms,” said Government Murphy about the signing. The preamble to the Executive Order notes that New Jersey is especially vulnerable to the impacts of climate change as a coastal state. Picking up on this administration’s Environmental Justice efforts, the Order acknowledges that minority and low-income communities are disproportionately affected by the impacts of climate change. Climate change of course is an issue that also impacts all communities, including the business community, industry, and government. The preamble also notes that “studies show that each...

NJ District Court Leaves Plaintiff Without Course of Relief Under CERCLA

NJ District Court Leaves Plaintiff Without Course of Relief Under CERCLA

In Stahl v. Bauer Auto, Inc., the U.S. District Court for the District of New Jersey handed down a decision that may be troubling for parties seeking to recover environmental cleanup costs under the Comprehensive Environmental Responsive Compensation and Liability Act (CERCLA). By way of background, CERCLA generally provides a private cause of action to plaintiffs in two circumstances. The first falls under section 107(a), which allows a plaintiff to seek recovery of response costs that it has incurred from other potentially responsible parties. The second falls under section 113(f), which allows a plaintiff that is or was the defendant of a cost recovery claim, or that has resolved its liability with the Environmental Protection Agency (EPA) under a judicially approved settlement, to seek contribution from other potentially responsible parties. Generally, a party that has incurred or will incur costs under CERCLA falls under one or both of these two categories. However, the N.J. District Court in Stahl held that there is at least one scenario where a plaintiff does not fall into either of these two categories and therefore has no claim under CERCLA. The factual history in the Stahl matter is long and complex. In short, the underlying...

U.S. Supreme Court Provides Guidance on the Disclosure of Confidential Information Under FOIA

U.S. Supreme Court Provides Guidance on the Disclosure of Confidential Information Under FOIA

Businesses often share sensitive information with the government either voluntarily or by mandate. This information becomes subject to requests under the Freedom Of Information Act (FOIA), which is a source of concern to any business worried about disclosure of competitive business information. The United States Supreme Court recently handed down a decision that directly addresses this concern. In Food Marketing Institute v. Argus Leader Media, the Court provides guidance on the protection from the disclosure of shared information deemed “confidential” under FOIA’s Exemption 4. In addition to businesses, this decision will have significant impact on public interest groups and media that may seek information through FOIA. Justice Gorsuch authored the opinion for the majority, which Chief Justice Roberts and Justices Thomas, Alito, Kagan, and Kavanaugh joined. Justice Breyer added an opinion concurring in part, and dissenting in part that Justices Ginsburg and Sotomayor joined. Argus Leader Media, a newspaper in South Dakota, filed a request under FOIA seeking information the United Stated Department of Agriculture collected as part of the national food stamp program known as the Supplemental Nutritional Assistance Program (SNAP). Specifically, Argus Leader sought the names and addresses of retailers that participate in SNAP and each store’s annual...

UPDATE: The Deepwater Horizon Drilling Rig Accident Continues to Cause Ripples: Texas Supreme Court Holds That Defense Costs are Not Liabilities Under Insurance Policy

UPDATE: The Deepwater Horizon Drilling Rig Accident Continues to Cause Ripples: Texas Supreme Court Holds That Defense Costs are Not Liabilities Under Insurance Policy

UPDATE: The Supreme Court of Texas recently refused an application for rehearing and declined to revisit its January holding that defense costs are not liabilities under an energy insurance policy. That decision, in the matter captioned Anadarko Petroleum Corporation, et al. v. Houston Casualty Company, et al., stemmed from the April 20, 2010 Deepwater Horizon drilling-rig accident that has been called, “the largest accidental marine oil spill in U.S. history.” The Court held that Lloyd’s of London Underwriters (“Lloyd’s”) were liable to cover approximately $112 million as a result of policy language that the Court interpreted as distinguishing between “liability” and “expenses.” The case involved the Anadarko Petroleum Corporation and Anadarko E&P Company, L.P. (collectively, “Anadarko”) and a group of insurance underwriters led by the Houston Casualty Company (the “Underwriters”). Anadarko was a 25% minority interest holder in the Macondo Well that blew out in the Gulf of Mexico in April 2010. Anadarko reached a settlement agreement with BP under which Anadarko agreed to provide its 25% interest and to pay $4 billion to BP in exchange for a release and indemnity against all other liabilities arising out of the accident. Anadarko’s legal fees and defense expenses were not included...

The Deepwater Horizon Drilling Rig Accident Continues to Cause Ripples: Texas Supreme Court Holds That Defense Costs are Not Liabilities Under Insurance Policy

The Deepwater Horizon Drilling Rig Accident Continues to Cause Ripples: Texas Supreme Court Holds That Defense Costs are Not Liabilities Under Insurance Policy

The Supreme Court of Texas recently issued a decision in which the community of insured parties and insurer parties alike will be interested. The case, Anadarko Petroleum Corporation, et al. v. Houston Casualty Company, et al., stems from the April 20, 2010 Deepwater Horizon drilling-rig accident that has been called, “the largest accidental marine oil spill in U.S. history.” The decision distinguishes between an insured’s “liability” and “expenses” under certain policy language to the consequent of $112 million. The case involved the Anadarko Petroleum Corporation and Anadarko E&P Company, L.P. (collectively, “Anadarko”) and a group of insurance underwriters led by the Houston Casualty Company (the “Underwriters”). Anadarko was a 25% minority interest holder in the Macondo Well that blew out in the Gulf of Mexico in April 2010. Anadarko reached a settlement agreement with BP under which Anadarko agreed to provide its 25% interest and to pay $4 billion to BP in exchange for a release and indemnity against all other liabilities arising out of the accident. Anadarko’s legal fees and defense expenses were not included in the settlement agreement, and Anadarko sought these fees and expenses from the Underwriters pursuant to its “energy package” insurance policy. The policy included...

Settlors Beware: A Recent NJ District Court Decision Has the Potential to Have Far Reaching Impacts on Parties Entering into Settlements Under CERCLA

Settlors Beware: A Recent NJ District Court Decision Has the Potential to Have Far Reaching Impacts on Parties Entering into Settlements Under CERCLA

A recent decision from the United States District Court for the District of New Jersey may throw a new wrinkle into the already complex settlement process under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, the decision addresses the question of what claims are included in the “matters addressed” in a settlement and entitled to contribution protection. On July 23, 2018, in N.J. Dep’t of Envtl. Prot. v. Am. Thermoplastics Corp, et al., Judge William H. Walls granted summary judgment in favor of the third-party defendants Carter Day Industries, Inc. (CDI), Combe Fill Corporation (CFC), and Combustion Equipment Associates, Inc. (“CEA”) (collectively, “Carter Day Parties”). Judge Walls held that the Carter Day Parties are entitled to contribution protection from claims for CERCLA costs incurred by the United States Environmental Protection Agency (USEPA) based on a settlement agreement between the Carter Day Parties and the State of New Jersey, notwithstanding that USEPA was not a party to the settlement. In following, the five-count first amended complaint of the third-party plaintiffs’ Compaction Systems Corporation of Connecticut, Inc. and Compaction Systems Corporation of New Jersey (together, “Compaction”) was dismissed with prejudice. The five counts of the complaint were: i) cost recovery...

EPA Provides Guidance to BFPPs Regarding Their Ability to Receive Reimbursement from EPA Superfund Special Accounts

EPA Provides Guidance to BFPPs Regarding Their Ability to Receive Reimbursement from EPA Superfund Special Accounts

One underused provision in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) makes Environmental Protection Agency (EPA) Superfund Special Accounts available for reimbursement to Bona Fide Prospective Purchasers (BFPPs). This provision has received greater scrutiny by EPA following the creation of the Superfund Task Force (“Task Force”) in May 2017, and BFPPs should carefully consider the potential benefits that Superfund Special Accounts might provide. The Task Force includes senior representatives from different EPA Regional Offices with responsibility for Superfund policy and enforcement. EPA created the Task Force to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and 42 recommendations. The full report is available here. Goal number two in the report is to reinvigorate responsible party cleanup and reuse of Superfund sites. One of the specific recommendations relating to this goal is to maximize the use of special accounts to facilitate site cleanup and/or redevelopment. EPA has begun to implement this recommendation with the issuance of a March 27, 2018 memorandum to its Regional Offices entitled: “Guidance on Disbursement of Funds from EPA Special Accounts to Entities Performing CERCLA Response Actions.” The full memorandum is available here. On July...

Superfund Task Force Recommendation 23 Listening Session: Informing Parties About Streamlining the Cleanup and Redevelopment Process

Superfund Task Force Recommendation 23 Listening Session: Informing Parties About Streamlining the Cleanup and Redevelopment Process

The Environmental Protection Agency (“EPA”) held a listening session concerning the Superfund Task Force (“Task Force”) Recommendation 23 on June 13, 2018. Recommendation 23 focuses on tools designed to assist parties interested in redevelopment of contaminated sites. The EPA created the Task Force in May 2017, which is comprised of senior representatives from various EPA offices associated with Superfund policy and enforcement. The Task Force intends to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and 42 recommendations. The Task Force’s five goals are to: i) expedite the cleanup and remediation process; ii) reinvigorate responsible party cleanup and reuse; iii) encourage private investment; iv) promote development and community revitalization; and v) engage parties and stakeholders. The full report is available here. Phil Page from EPA’s Office of Site Remediation Enforcement, Policy, and Program Evaluation Division presented the listening session for Recommendation 23. The slide deck from the session is available here. Recommendation 23 aims to deliver an efficient and effective process to identify site-specific liability issues, to identify best manage practices to quickly respond to third-party concerns regarding liability, and to create a national team of redevelopment experts. Recommendation 23...