Gibbons Law Alert

Gibbons Law Alert

Tagged: NJDEP

Gibbons Environmental Law Department Congratulates Former Director Shawn LaTourette on Being Named NJDEP Acting Commissioner

by

Posted in Environmental and Green Issues

On January 14, 2021

The Gibbons Environmental Law Department proudly congratulates former Director Shawn LaTourette on his being named Acting Commissioner of the New Jersey Department of Environmental Protection (NJDEP) by Governor Murphy. Shawn joined the Gibbons Environmental Law Department as an associate in 2015 where he was provided with a supportive platform on which to develop and expand his legal and environmental skills. Recognizing his significant talent, Gibbons elevated him to Director in 2018. Shortly thereafter, he was tapped to serve as Chief Counsel for the NJDEP. During his time at Gibbons, he was an integral part of the Environmental Law Department where he worked on complex environmental litigation matters under the New Jersey Spill Compensation and Control Act and the federal Comprehensive Environmental Response, Compensation, and Liability Act, as well as other significant litigation matters involving contract and common law claims between private parties. He also represented clients in cutting-edge permitting and regulatory compliance matters, and on brownfields redevelopment projects. “We are extremely proud of Shawn, and we are glad that our department was able to enhance his development as an environmental attorney such that he has been able to succeed so profoundly in public service,” said Camille V. Otero, Director and Chair of the Gibbons Environmental Law Department. “Shawn was a vital part of our Department’s...

Former Gibbons Director Shawn LaTourette Named NJDEP Acting Commissioner

by

Posted in Environmental and Green Issues

On January 13, 2021

Shawn LaTourette, formerly a Director in the Environmental Department at Gibbons P.C., has been named Acting Commissioner of the New Jersey Department of Environmental Protection (NJDEP), as announced by New Jersey Governor Murphy earlier today. Mr. LaTourette previously served as NJDEP Chief Counsel. Mr. LaTourette joined Gibbons in 2015 as an associate and was promoted to Director in 2018, prior to joining the NJDEP. At Gibbons, his practice focused on environmental and closely related legal fields, in both litigation and transactional settings involving environmental conditions, land use, and development. He helped clients across various industries manage compliance with and enforcement of state and federal environmental and land use laws, including their application to commercial, real estate, construction, and infrastructure transactions. At Gibbons, Mr. LaTourette was the firm’s go-to lawyer to handle all environmental aspects of our clients’ real property acquisitions, developments and redevelopments, and construction projects, which included some of the most high-profile real estate, construction, and infrastructure matters in New Jersey. “When he was here, all of us at Gibbons recognized that Shawn was a rising leader in the environmental bar in New Jersey and throughout the region,” said Patrick C. Dunican Jr., Chairman and Managing Director of the firm. “We are delighted to congratulate him on proving us right.” For an article on...

Jordan Asch to Participate in Upcoming NJSBA Panel Discussion – “Resolving Everyday Environmental Problems” – November 5

by

Posted in Environmental and Green Issues

On October 29, 2020

Jordan M. Asch, an Associate in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by the New Jersey State Bar Association, in cooperation with its Environmental Law Section. The panel, “Resolving Everyday Environmental Problems,” will take place virtually on Thursday, November 5 from 9:00 – 10:30 am. The discussion will cover some of the complex, and often expensive, environmental issues that small businesses and homeowners may face, including site remediation issues, funding sources, environmental permitting, and the permitting process. Attorneys who represent small business owners that own or lease real property, or that may develop or improve real property, as well as homeowners that may face environmental remediation or permitting issues are encouraged to attend. For additional information or to register, click here.

NJDEP Posts List of Approvals Extended by Permit Extension Act of 2020

by and

Posted in Development/Redevelopment

On October 28, 2020

The New Jersey Department of Environmental Protection (NJDEP), in its function as the repository for registering approval extensions under the Permit Extension Act of 2020 (“PEA2020”), codified at N.J.S.A. 40:55D-136.7, has posted the list of approvals which were registered by the October 8, 2020 deadline. There are actually two separate lists available from NJDEP, one consisting of permits issued by the NJDEP, and the other consisting of approvals issued by all other agencies. The second list encompasses a broad array of approvals including municipal and county planning board approvals, health department approvals, highway access permits, road opening permits, redevelopment agreements, soil conservation district certification, and a host of others. Both lists provide the name of the permittee, permitting agency, type of permit, and permit number. They are searchable by keyword. It appears that these lists are only inclusive of the approvals that have been granted extensions, and developers and permitted parties should review them carefully to confirm whether their approvals have been included. As reported previously, PEA2020 authorizes the extension of a wide variety of approvals, including, but not limited to, soil conservation district approvals, waterfront development permits, wetlands permits, CAFRA permits and center designations, septic approvals, municipal utility authority approvals, county and municipal planning board approvals, and a host of other municipal, county, regional,...

NJDEP Solicits Input as It Begins Process of Drafting Regulations to Implement Landmark Environmental Justice Legislation

by

Posted in Environmental and Green Issues

On October 27, 2020

As we reported, New Jersey Governor Phil Murphy recently signed the nation’s first environmental justice law, which seeks to address the unfair distribution of the environmental and public health impacts of polluting activities by imposing additional requirements on parties seeking to site, expand, or renew permits for various types of facilities in “overburdened communities,” which are defined in the statute in terms of economic and demographic criteria. The statute requires the New Jersey Department of Environmental Protection (NJDEP) to promulgate regulations to implement its requirements. NJDEP began the public process of developing those regulations on October 22 when Olivia Glenn, Deputy Commissioner for Environmental Justice and Equity, and Sean Moriarty, Chief Advisor for Regulatory Affairs, hosted an online public information session in which they sought the public’s input on how the regulations should address numerous definitional and procedural issues. (The statute will not take effect until NJDEP promulgates its regulations.) Companies seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope and are located in overburdened communities must prepare an “environmental justice impact statement” and provide for expanded public hearings on their project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility...

Insurer Alleges Pollution Policy Void Because of Policyholder’s Failure to Disclose

by

Posted in Environmental and Green Issues

On October 7, 2020

AIG Specialty Insurance Co. (“AIG”) recently asserted in a New Jersey Federal District Court Complaint that it owes no coverage to Thermo Fisher Scientific Inc. (“Thermo Fisher”) for cleanup costs associated with contaminated groundwater at a facility owned by Thermo Fisher in Fair Lawn, New Jersey. The crux of AIG’s claim is the fact that Thermo Fisher failed to disclose to AIG that the company had been monitoring groundwater pollution at its site for nearly three decades. AIG alleges the existence of two consent orders relating to groundwater contamination at the site and, more specifically, the presence of PFAS, so-called “forever chemicals” detected in a wellfield affected by the site. Both of these consent orders were in existence when Thermo Fisher sought a pollution liability policy with AIG. AIG asserts that Thermo Fisher either knew or should have known about the groundwater pollution conditions at its facility and the claims against the facility by the United States Environmental Protection Agency (“EPA”) prior to seeking the pollution liability policy at issue, facts that should have been disclosed in the application. AIG alleges that Thermo Fisher’s failure to disclose these consent orders and the fact that the Thermo Fisher plant was part of a Superfund site is sufficient to trigger a number of exclusions in the pollution...

Permit Extensions: Looming Deadline and Best Practices

by and

Posted in Development/Redevelopment

On September 24, 2020

The period within which to register development approvals for tolling or extension under the Permit Extension Act of 2020 (“Act”) concludes on October 8, 2020. Permits and approvals which are not timely registered by that date may expire without receiving the benefit of tolling afforded by the Act. We have detailed both the Permit Extension Act of 2020 and the recently published notices from various state agencies on our website. While the language of the Act as adopted, and the accompanying notices from the various state agencies, are not fully consistent with respect to what approvals are required to be registered, we wanted to pass along two key suggestions regarding how to best take advantage of the Act: Register All Approvals. We suggest to err on the side of registering all approvals – this means not only State agency permits, but also municipal land use approvals, agreements for sewerage capacity, water permits, construction permits, plan endorsements under the State Planning Act, and any approval for permits related to any development application. While the statutory language seemed to suggest that it was only state level permitting that would be subject to registration, it appears that NJDEP will be serving as a database and repository for all approvals – not just those of state agencies – and...

New Jersey Governor Signs Environmental Justice Legislation

by

Posted in Environmental and Green Issues

On September 23, 2020

On September 18, 2020, New Jersey Governor Phil Murphy signed legislation intended to address the disproportionate environmental and public health impacts of pollution on overburdened communities. The legislation, versions of which have been proposed several times over the past decade, imposes additional requirements on companies seeking permits for new or expanded facilities under a variety of environmental statutes. It also requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate how the proposed permitted activities would impact those communities determined to be “overburdened” under the new law. Earlier this summer, marking the “Juneteenth” anniversary of the emancipation of slaves in the United States, Governor Murphy had indicated his support for the legislation, which some environmental advocates have dubbed the “holy grail” of the environmental justice movement. Although critics of the law raised concerns about its effect on manufacturing and business investment in New Jersey, the bill passed the state legislature in late August, with votes of 49-28-1 in the state Assembly and 21-14 in the state Senate. The types of facilities covered by the new law include certain power plants, incinerators, sewage treatment plants, solid waste facilities, and landfills, as well as other facilities deemed to be “major sources of air pollution” (as determined by the federal Clean Air Act). Governor Murphy stated that,...

Pre-SRRA? SRRA!: NJDEP Clarifies Applicability of SRRA to Pre-SRRA Cleanup Orders and Agreements

by

Posted in Environmental and Green Issues

On September 15, 2020

In a listserv published on September 10, 2020, the New Jersey Department of Environmental Protection (NJDEP) has once again made clear that the innovative requirements of the 2009 Site Remediation Reform Act (SRRA), including the requirement to retain a licensed site remediation professional (LSRP), apply to any cleanup being performed under an administrative consent order (ACO) or remediation agreement (RA) that predates the enactment of SRRA on November 4, 2009. (SRRA was amended last year in what some commentators termed “SRRA 2.0.”) The NJDEP release, which supersedes a 2012 listserv on the same subject, confirms that (except for cleanups at certain federal facilities or sites being addressed under federal statutes) all parties conducting remediation work must retain an LSRP, even if they are subject to a pre-SRRA ACO or RA. NJDEP will hold in abeyance all ACO/RA requirements regarding departmental pre-approval of reports and work plans, as well as any deadlines contained in the order or agreement. Remediating parties must instead meet all regulatory and mandatory timeframes in NJDEP’s regulations. Other requirements in the ACO/RA will remain in effect, including those relating to a remediation funding source (RFS), RFS surcharges, and stipulated penalties. The new listserv also clarifies that SRRA overrides any termination provision in a pre-SRRA ACO or RA. NJDEP will not terminate an...

(State) Settlors Beware, Too: In Reversal, Third Circuit Declares that State Settlement Does Not Protect Against Federal Claims under CERCLA

by

Posted in Environmental and Green Issues

On September 14, 2020

Previously, the District of New Jersey ruled that a polluting party’s settlement agreement with the New Jersey Department of Environmental Protection (NJDEP) provided contribution protection from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims based on costs incurred by the United States Environmental Protection Agency (USEPA) at the same site, even though USEPA was not a party to the settlement. In a prior blog post discussing that decision, we noted that the District Court’s decision was likely to be appealed. It was. On appeal, the Third Circuit considered the inquiry of “[w]hether a polluting party’s settlement with the State of New Jersey protects it from lawsuits seeking contributions toward expenditures made by the Federal Government on the same site,” and determined in a precedential opinion that, “the answer here is no.” CERCLA section 113(f)(2) provides that “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” The District Court applied the analysis commonly adopted by other federal courts to determine the “matters addressed” of the previous settlement where the scope is not made explicit by the agreement itself. This analysis includes factors such as the location, time frame,...

Connect:

About Gibbons

With 200 attorneys, Gibbons is a leading law firm in New Jersey, New York, Pennsylvania, Delaware, Washington, DC, and Florida, ranked among the nation’s top 200 by The American Lawyer. More…

Subscribe

Archived Blog Posts

Categories