Category: Environmental and Green Issues

Budget Act Makes Changes to Federal Brownfield Program

Budget Act Makes Changes to Federal Brownfield Program

As noted in last week’s blog, the recently-passed Consolidated Omnibus Appropriations Act made a number of modifications to the federal brownfield program. That blog focused on the expansion of lessees’ ability to qualify for Bona Fide Prospective Purchaser (BFPP) status (and thereby obtain protection from Superfund liability). However, the Act made other changes that are of interest to brownfield site owners, developers, states, municipalities, and potential applicants for federal brownfield grant money. These modifications are found in Division N of the legislation, entitled “the Brownfields Utilization, Investment, and Local Development Act of 2018” (“BUILD Act”). They include the following: eliminating state and local government Superfund liability for sites acquired through seizure or otherwise in connection with law enforcement activity. State and local governments were previously protected only with respect to sites acquired “involuntarily”; eliminating the restriction for grants to petroleum sites that a site must be “relatively low risk” as compared with other petroleum-only sites in a state; allowing grants to be used for the cleanup of publicly-owned properties even if the public owner is not a BFPP; increasing the maximum federal brownfield grant per site from $200,000 to $500,000, which limit can be waived by EPA up to a...

Federal Budget Act Expands Lessees’ Ability to Claim Superfund Exemption as Bona Fide Prospective Purchasers

Federal Budget Act Expands Lessees’ Ability to Claim Superfund Exemption as Bona Fide Prospective Purchasers

The recently-enacted Consolidated Omnibus Appropriations Act made headlines in extending funding for federal government programs through September 30, 2018. Less widely noted were the myriad changes wrought by the Act to the administration of many federal programs. Among the programs affected was the federal brownfields program. The major substantive change in the Act was the expansion of the Bona Fide Potential Purchaser (BFPP) protection for lessees of properties. BFPP status exempts from Superfund liability parties who become owners or operators of facilities after the discharge of contaminants, so long as they are unrelated to parties responsible for the discharge, conduct “all appropriate inquiries” (e.g., a Phase I environmental site assessment) prior to closing, and observe certain other protocols post-closing. Until now, lessees were precluded from qualifying as a BFPP unless the property owner was also a BFPP. Now, if a lessee performs the required actions, it can obtain BFPP protection irrespective of whether its landlord is similarly exempted. This change will have a major impact on the liability exposure of lessees, particularly those who are developing and operating properties under long term ground leases. Most of the Act’s other brownfield-related provisions concern the funding of federal brownfield grants. Non-profit organizations are now...

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...

David Freeman to Speak at New York University Brownfields Program

David Freeman to Speak at New York University Brownfields Program

David J. Freeman, a Director in the Gibbons Environmental Department, will participate in an upcoming program entitled “New Opportunities in Brownfield Urban Redevelopment.” The event will be hosted by the NYU School of Professional Studies (NYUSPS) Schack Institute of Real Estate on February 22 from 9:00 to 11:00 a.m. This event is free to attend, but registration is required. Mr. Freeman will discuss recent developments in the federal, New York State, and New York City brownfield programs, including the controversial proposal in Governor Cuomo’s budget bill to defer payment of certain tax credits earned under the New York State program. In addition to Mr. Freeman, panelists will include Barry Hersh, Clinical Associate Professor, NYUSPS Schack Institute of Real Estate; Jean Hamerman, Deputy Director, Center for Creative Land Recycling; Michael Taylor, President, Vita Nouva LLC; and Daniel Walsh, Director, New York City Mayor’s Office of Environmental Remediation. For a detailed agenda or to register, click here.

Catherine McCabe Assumes Duties as Acting Commissioner of the New Jersey Department of Environmental Protection

Catherine McCabe Assumes Duties as Acting Commissioner of the New Jersey Department of Environmental Protection

Governor Phil Murphy’s nominee for Commissioner of the New Jersey Department of Environmental Protection (“NJDEP”) assumed her new duties as Acting Commissioner on January 22, 2018 while she awaits confirmation by the Senate. The new Acting Commissioner has extensive experience with the United States Environmental Protection Agency (“EPA”), having served most recently as both deputy and acting regional administrator of EPA’s Region 2, and as acting administrator of the EPA itself. EPA’s Region 2 includes New Jersey, New York, Puerto Rico, and the U.S. Virgin Islands. Acting Commissioner McCabe also served as Deputy Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance, as a judge on EPA’s Environmental Appeals Board. Prior to joining EPA, McCabe held various managerial positions with the U.S. Department of Justice in its Environmental and Natural Resources Division, Environmental Enforcement Section, Natural Resources Section, and Policy, Legislation and Special Litigation Section. She earned her law degree from Columbia Law School, a bachelor’s degree in Environmental Science from Barnard College, and studied environmental science at the Columbia University Graduate School of Arts and Sciences. The appointment of an experienced environmental administrator evidences the Governor’s commitment to his ambitious environmental agenda. Susanne Peticolas is a Director in...

Gibbons Ranked Best Law Firm and Best Lobbying Firm in Inaugural NJBIZ Reader Rankings

Gibbons Ranked Best Law Firm and Best Lobbying Firm in Inaugural NJBIZ Reader Rankings

Gibbons P.C. has been selected as the best law firm and the best lobbying firm in New Jersey in the inaugural NJBIZ Reader Ranking Awards. The Reader Rankings were compiled through an online survey seeking the best of the best in a wide range of categories and subcategories. According to NJBIZ, “The publication of the 2017 Reader Rankings by NJBIZ is our way of recognizing the regard our readers have for the businesses in their communities. What makes the companies listed here distinct is the devotion they inspire among our region’s business leaders.” Gibbons has been recognized by numerous organizations and publications for the firm’s work on behalf of clients, including being named among the New Jersey Law Journal’s Litigation Departments of the Year, earning the top overall honors in 2014, as well as recognition for the practice areas of class actions (2017), products liability (2016), and commercial litigation (2013). The Gibbons Government Affairs Department has ranked as the #1 lawyer-lobbying firm in New Jersey for nine consecutive years, according to the New Jersey Election Law Enforcement Commission In addition, the firm and Gibbons attorneys are also consistently recognized in annual client-review publications such as the Chambers USA Guide to...

All in the Family: N.J. Appellate Division Holds That Status of Pre-1983 Purchaser as “Innocent Party” Applied to Current Owner Despite Property Transfers Among Family Members Via Trusts

All in the Family: N.J. Appellate Division Holds That Status of Pre-1983 Purchaser as “Innocent Party” Applied to Current Owner Despite Property Transfers Among Family Members Via Trusts

Reversing the denial of an application for an “innocent party” grant, the New Jersey Appellate Division recently held in an unpublished opinion, Cedar Knolls 2006, LLC v. New Jersey Department of Environmental Protection, that property transfers among family members, even through the use of trusts, are not “changes of ownership.” Thus, a corporation that acquired a parcel of land in 2006 was eligible to seek an “innocent party” grant that is available only to pre-1983 transferees because the property had remained within the same family since its original acquisition in 1977. The property at issue was originally acquired in 1977 by Robert Higginson, well before the December 31, 1983 cutoff for eligibility as an “innocent party” under New Jersey law. Upon his death 16 years later, he bequeathed the property to his wife through two 50% shares placed into separate trusts. His wife then assigned her shares in the property to two new trusts. The interests of those trusts in the property were subsequently transferred to their son, who created a new entity, Cedar Knolls 2006, LLC, to which he transferred the two 50% shares, making Cedar Knolls the sole owner of the property. Nine years later, Cedar Knolls applied for...

NJDEP Announces Change to Remediation Standards for Certain Contaminants

NJDEP Announces Change to Remediation Standards for Certain Contaminants

On September 18, 2017, the New Jersey Department of Environmental Protection (“NJDEP”) announced updated soil remediation standards for 19 contaminants. The updates are based on changes to toxicity data for the specified contaminants maintained by the United States Environmental Protection Agency in the agency’s Integrated Risk Information System database. Responsible parties and others conducting cleanups should consult with their Licensed Site Remediation Professionals and other environmental consultants regarding the applicability of the new standards to their sites. The new standards are in effect as of September 18, 2017. A copy of the updated standards can be viewed at NJDEP’s website. David J. Miller is an Associate in the Gibbons Real Property & Environmental Department.

Do You Like What You’re Reading? Rate Our Blog: The ABA Journal’s “Web 100” Award

Do You Like What You’re Reading? Rate Our Blog: The ABA Journal’s “Web 100” Award

Thank you for visiting the Gibbons Real Property & Environmental Law Alert blog! Content on our site, authored by members of the Gibbons Real Property & Environmental Department, integrates topics in transactional real estate, development, and environmental law that are critical to the success of property acquisitions and dispositions, real estate financings, lease transactions, major development projects, and remediation and redevelopment of brownfield sites. How are we doing? To review our blog and nominate the Gibbons Real Property & Environmental Law Alert for this year’s ABA Journal’s “Web 100” award, please visit abajournal.com/blawgs/web100 and share why you are a “fan” of our site (Please note: the voting process closes on Sunday, July 30). Thank you in advance for your support.

Opinion from Eastern District of New York May Have Opened the Door to a New Defense for Potential CERCLA “Arrangers”

Opinion from Eastern District of New York May Have Opened the Door to a New Defense for Potential CERCLA “Arrangers”

In Town of Islip v. Datre, a recent decision out of the Eastern District of New York, the court adopted an approach to “arranger liability” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) that holds parties cannot be liable unless they knew that the substances they arranged for disposal were, in fact, hazardous. The Islip court’s approach represents a departure from traditional considerations of arranger liability and, if followed by future courts, may present a defense for potentially responsible parties who, though intentionally arranging for disposal of materials which ultimately lead to contamination, lacked specific knowledge that such materials contained hazardous substances. The Islip case arises out of illegal dumping of hazardous construction and demolition debris that occurred at a public park (“the park”) in Islip, New York between 2013 and 2014. Though the case involves an elaborate and bizarre dumping scheme involving, among many others, a local church, the parks department, and a number of haulers, as well as the eventual filing of criminal charges, it is sufficient for present purposes to distill the facts as follows. Relevant to the issue of arranger liability, a civil complaint filed by the Town of Islip (“the Town”) alleged that...