Author:

N.J. Appellate Division: Both Parties Were Ineligible for Public Entity Cleanup Grant Where Private Party Conducting Remediation for County’s Benefit Was Not County’s Redeveloper or Agent

N.J. Appellate Division: Both Parties Were Ineligible for Public Entity Cleanup Grant Where Private Party Conducting Remediation for County’s Benefit Was Not County’s Redeveloper or Agent

For purposes of obtaining financial assistance from the State, cleaning up environmental contamination for a governmental body’s benefit is not the same as cleaning it up on behalf of the government as its formal designee. That is the hard lesson that a former landowner learned in the New Jersey Appellate Division’s August 29, 2018 decision in In re Hazardous Discharge Site Remediation Fund Public Entity Grant Application for Remedial Investigation and Remedial Action. When Barry Rosengarten contracted to sell a parcel of land in Perth Amboy to Middlesex County for use as open space, he agreed to remediate environmental contamination, and the County escrowed monies from the sale to be released to Mr. Rosengarten as he performed the cleanup. The County also agreed to cooperate in seeking State grants that could offset those costs and thus reduce Mr. Rosengarten’s net cleanup expenses. Through Mr. Rosengarten’s counsel, the County applied to the New Jersey Department of Environmental Protection (NJDEP) for either a Brownfield Development Area Grant or a 75% Recreation and Conservation Grant. NJDEP denied the application after finding that the County was not performing the cleanup and that the contract did not provide that Mr. Rosengarten was doing the work...

Superfund Task Force Listening Session on Recommendation 16-2, Part 2: Improving Implementation of Cleanup Agreements for Response Actions by PRPs

Superfund Task Force Listening Session on Recommendation 16-2, Part 2: Improving Implementation of Cleanup Agreements for Response Actions by PRPs

On June 18, 2018, the United States Environmental Protection Agency’s (“EPA”) held the last of eight listening sessions on the recommendations of its Superfund Task Force. This last listening session concerned Part 2 of Recommendation 16-2018, which calls for improvement in the process of implementing cleanup agreements under which potentially responsible parties (PRPs) commit to carry out site cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA speakers included Ellen Stern (Office of Regional Counsel, Region 10), Ken Patterson (Office of Site Remediation Enforcement (OSRE), Douglas Dixon (OSRE), and Charles Howland (Office of Regional Counsel, Region 3). They noted a number of reasons for delays in the completion of cleanups under such agreements, ranging from the submission of multiple versions of the same deliverable and time-consuming dispute resolution procedures to lax (or, conversely, excessively stringent) enforcement of deadlines and imposition of stipulated penalties. They also acknowledged EPA’s reluctance to exercise its most extreme enforcement tool – taking over the work and using financial assurance established by the PRPs. Outside participants called on EPA to expand the number of PRPs that are called upon to perform cleanups (including municipalities) to reduce the financial burden on any one PRP. The Superfund...

New Jersey Appellate Division Upholds $225 Million NJDEP Settlement With Exxon Mobil for Natural Resource Damages

New Jersey Appellate Division Upholds $225 Million NJDEP Settlement With Exxon Mobil for Natural Resource Damages

In 2004, the New Jersey Department of Environmental Protection (NJDEP) sued Exxon Mobil Corporation under the Spill Act to recover natural resource damages (NRDs) for the Bayway refinery in Linden and another facility in Bayonne. Fourteen years later, New Jersey’s Appellate Division has upheld a consent judgment, entered by Judge Michael J. Hogan after a sixty-day bench trial, that settled NJDEP’s claims at the Bayway and Bayonne sites as well as 16 other Exxon facilities (including a terminal in Paulsboro) and over 1,000 retail gas stations, in exchange for a record payment of $225 million. In addition to the validity of the consent judgment itself, the case presented a number of important procedural questions regarding the ability of the non-party appellants – here, State Senator Raymond Lesniak and several environmental organizations – to participate in the litigation and to appeal from the trial court’s entry of the consent judgment. First, the Court upheld the trial court’s refusal to permit Senator Lesniak and the environmental groups to intervene in the case (either as of right or permissively) to argue against the settlement, holding for the first time in a reported decision that a putative intervenor must have standing, and that even under...

We Have to Talk: New Jersey Appellate Division Invalidates Discharge Permit for Failure of Agency to Consult with Highlands Council

We Have to Talk: New Jersey Appellate Division Invalidates Discharge Permit for Failure of Agency to Consult with Highlands Council

In the latest twist in a saga that began in 2002, the New Jersey Appellate Division held that the Department of Environmental Protection’s (DEP) failure to consult with the Highlands Council invalidated a wastewater discharge permit that DEP had issued to the prospective developer of a site located in the “planning area” covered by the state’s Highlands Water Protection and Planning Act (Highlands Act). As a result, the story is guaranteed to continue for several more months and perhaps, in light of likely appeals, several more years. Bellemead Development Corporation first received a New Jersey Pollution Discharge Elimination System (NJPDES) permit for the discharge of treated wastewater from a planned development in Tewksbury in 1998. In 2002, with the permit set to expire the next year, Bellemead applied for a renewal of its original permit. DEP’s denial of the application in 2006 set in motion a chain of administrative hearings, apparent settlements, and new applications that culminated in DEP’s issuance of a new permit in 2014. The Township of Readington and several citizen groups appealed. The appellants pointed to a number of procedural missteps by DEP, but the court focused on the department’s failure to consult the Highlands Council prior...

Sovereign Impunity?: State Cannot Be Sued Under New Jersey Spill Act for Pre-Enactment Discharges

Sovereign Impunity?: State Cannot Be Sued Under New Jersey Spill Act for Pre-Enactment Discharges

Since its original enactment in 1976, New Jersey’s Spill Compensation and Control Act (commonly known as the Spill Act) has been amended no fewer than ten times. The New Jersey Supreme Court had to grapple with that complicated history in its recent decision in NL Industries, Inc. v. State of New Jersey, No. A-44-15. Reversing the 2015 opinion of the Appellate Division, on which we have already written, the Court held that while the original statute made New Jersey subject to Spill Act liability by including the State in the definition of a “person,” subsequent amendments that (among other changes) expanded some portions of the statute to cover pre-enactment discharges did not “clearly and unambiguously” abrogate the State’s sovereign immunity for pre-enactment activities. As a result, the State can never face Spill Act liability associated with its discharges that occurred before the statute’s effective date of April 1, 1977. The case concerned the remediation of a contaminated site on the shoreline of Raritan Bay with an estimated cleanup cost of $79 million. Development plans for the area in the 1960s led to a proposal to construct a seawall. At least some of the material used in the seawall, which was completed...

Sentence First – Verdict Afterwards?: N.J. Appellate Division Holds That Spill Act Allows Private Parties to Compel Participation in Investigation Based on Potential Responsibility

Sentence First – Verdict Afterwards?: N.J. Appellate Division Holds That Spill Act Allows Private Parties to Compel Participation in Investigation Based on Potential Responsibility

The New Jersey Spill Compensation and Control Act (Spill Act) has long included a contribution provision that permits private parties to recover cleanup costs incurred to the extent that they exceed their equitable share of those costs. In its recent opinion in Matejek v. Howard, the New Jersey Appellate Division interpreted the statute to give private parties another powerful remedy: the ability to compel other private parties who may be responsible for the contamination to participate in the investigation of the contamination, even before any findings about their respective responsibility. The case arose in Hillsborough, where the Department of Environmental Protection (DEP) removed underground tanks from five units in a condominium project after oil was discovered in a nearby stream. After confirming the absence of oil in the stream a few months later, DEP took no further steps. Seven years later, with DEP’s file on the matter still open, the owners of one of the units sued the owners of the other four units, seeking to compel them to participate in and equally share in an investigation and, if necessary, cleanup of their property. Even though there was no evidence about the precise source(s) of the contamination, the trial court...

A Final Word on EPA’s New Recommendations on Sediment Cleanups

A Final Word on EPA’s New Recommendations on Sediment Cleanups

We recently wrote about a new memorandum from EPA’s Office of Land and Emergency Management that sets forth eleven recommendations for the agency’s regional offices on how to clean up contaminated sediments, and later covered some of the recommendations in greater detail. Here we discuss the rest of EPA’s recommendations. EPA’s recommendations are shown below in bold text, followed by our comments and analysis. Recommendation 6: Develop risk reduction expectations that are achievable by the remedial action. The National Contingency Plan requires EPA’s remediation goals at a given site to be protective of human health and the environment, but sometimes natural or anthropogenic background concentrations unrelated to the CERCLA release being remediated (especially for persistent contaminants associated with cancer risks, such as PCBs and dioxins) can make it impossible to achieve that goal via the cleanup. In such cases, expectations need to match reality, and the remedy should include additional risk reduction strategies (e.g., fish consumption advisories) to ensure protectiveness. Recommendation 7: Consider the limitations of models in predicting future conditions for purposes of decision making. Environmental professionals, no less than anyone else, can forget that computers are tools that help to inform decisions, but cannot replace human judgment. Even the most sophisticated...

More on EPA’s New Recommendations on Sediment Cleanups

More on EPA’s New Recommendations on Sediment Cleanups

Last month, we wrote about a new memorandum from the EPA’s Office of Land and Emergency Management that sets forth 11 recommendations for the agency’s regional offices on how to clean up contaminated sediments. Here we discuss some of those recommendations in greater detail. The EPA’s recommendations are shown below in bold text, followed by our comments and analysis. Recommendation 1: Consider early actions during the remedial investigation/feasibility study in site areas presenting high risks to help reduce risks quickly. Here, the EPA advises its regional offices not to wait until the sediments at a site are well characterized before taking steps to reduce serious risks. In many situations, the EPA can use its removal authority to reduce serious risks while other portions of the site are studied. Recommendation 2: Ensure adequate data collection during the remedial investigation/feasibility study to support the evaluation of alternatives. It’s never too early to plan ahead. From the very start of the process, the focus should be on collecting data that will support an eventual evaluation of remedial alternatives. Avoid “study for study’s sake.” Recommendation 3: Evaluate the risks associated with exposures to contaminated sediments, including submerged sediments. While the greatest risks at many sites likely involve...

EPA Issues Directive to Clarify Existing Guidance on Sediment Cleanups 0

EPA Issues Directive to Clarify Existing Guidance on Sediment Cleanups

From Portland Harbor in Oregon to New Jersey’s Passaic River, contaminated sediment sites present unique challenges. While the EPA issued guidance documents for addressing contaminated sediment sites in 2002 and 2005, it has since learned many lessons in addressing dozens of such sites. A new memorandum from the EPA’s Office of Land and Emergency Management (OLEM), formerly the Office of Solid Waste and Emergency Response, sets forth 11 recommendations for improving the way the agency’s regional offices handle the complex process of cleaning up contaminated sediments.

No Need to Wait: Supreme Court Permits Judicial Review of Wetlands Jurisdictional Determinations 0

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

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