Gibbons Director David J. Freeman will serve as Program Co-Chair of an upcoming New York State Bar/New York City Bar conference on Federal and New York State brownfield and Superfund programs. The conference will take place from 10:00 a.m. to 3:00 p.m. on December 12, 2019 at the New York City Bar Association, 42 West 44th Street, New York, NY 10036. The program’s distinguished faculty includes New York State Attorney General Letitia James, Environmental Protection Agency (EPA) Region 2 Administrator Pete Lopez, and other officials from the EPA, the New York State of Department of Environmental Conservation (NYSDEC), the New York State Office of Attorney General, and the New York City Office of Environmental Remediation. The topics to be discussed will include: trends in federal Superfund enforcement, including natural resource damages claims and the impact of the Superfund Task Force recommendations; NYSDEC policies and practices in implementing the 2015 Amendments to the Brownfield Cleanup Act; the intersection between Superfund and brownfields, focusing on developments at the Gowanus Canal Superfund Site; and an analysis of case law developments in these areas. Click here for a brochure describing the program and here for a further description and registration information.
Tagged: 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...
On January 9, 2017, Governor Christie signed into law a bill aimed at fortifying New Jersey’s existing Electronic Waste Management Act, by ensuring that manufactures of certain consumer electronics shoulder the burden for recycling all such devices actually collected in the state during a calendar year. While this new law is technically a recast of the existing statutory scheme, the changes it affects are, in many ways, transformative. This blog provides a broad description of the previous law, the apparent conditions which prompted its revision, and the key innovations of the new law.
Recently, the United States Environmental Protection Agency (“EPA” or “the Agency”) shared some preliminary details regarding its impending proposal of financial assurances regulations for the hardrock mining industry. These regulations, which are still under consideration by the Agency, will likely serve as a harbinger of the financial assurances requirements EPA intends to impose on other industries, and collectively, they have the potential to have a significant financial impact on parties responsible for cleaning up contaminated properties.
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.”
N.J. Appellate Court Extends Time Limit for Bringing Strict-Liability Claim for Natural Resource Damages
Thanks to a special “extension statute” enacted in 2001, the statute of limitations that requires the State of New Jersey to commence a civil action within ten years of its accrual does not apply to an action for natural resource damages (NRDs) that is brought “pursuant to the State’s environmental laws.” The Appellate Division recently held that the Legislature intended “the State’s environmental laws” to include the common law — or at least the common law of strict liability — and revived a claim that otherwise would have been time-barred.
In Rare Application of Waiver Doctrine, Federal Court Holds That New Jersey Gave Up Right to Seek Natural Resource Damages at Contaminated Site
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.”
NJDEP and the Terrible, Horrible, No Good, Very Bad Day – Trial Judge Rejects NJDEP’s Approach to Natural Resource Damages
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.
Judge Robert J. Bryan of the United States District Court for the Western District of Washington recently issued two opinions in United States v. Washington State Department of Transportation that could have significant implications on the scope and extent of liability under the Comprehensive, Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §9601 et seq., particularly at urban river sites and harbors. Both decisions examine the liability of the Washington State Department of Transportation (“WSDOT”) at the Commencement Bay/Nearshore Tidelands Superfund Site.
On June 8, 2010, in Westport Insurance Co. v. Appleton Papers, Inc., the Wisconsin Court of Appeals for the First District held that two insurers, namely Munich Re Ag and Westport Insurance Co., are liable each for $5 million dollars to compensate Appleton Papers, Inc. (Appleton) for cleaning up the sediment contamination in the Fox River. The Fox River is undergoing a cleanup pursuant to oversight by the United States Environmental Protection Agency.