|
|
|
|
|
|
|
|
ENVIRONMENTAL LAW & LAND USE NEWSLETTER
JANUARY 2013
Happy New Year to our colleagues and friends! In 2013, we look forward to continuing our record of securing environmental law, insurance coverage and land use victories for our clients, while sharing news of the latest developments in our practice areas and beyond. You can read more about the latest issues below, and as always, we invite you to continue the conversation by visiting and commenting on our environmental and land use law blog, or by following us on LinkedIn, Facebook or Twitter.
Sincerely,
|
|
|
 As 2012 drew to a close, New Jersey's appellate courts reached decisions in a number of Spill Act cases that are sure to have far reaching impact. The New Jersey Spill Compensation and Control Act (or "Spill Act" for short), enacted in 1976, allows the State (and others) to pursue parties in any way responsible for discharges of hazardous substances, including petroleum, into the environment.
In late September, 2012, the New Jersey Supreme Court made a landmark ruling concerning the causation requirements of the Spill Act. The case, NJDEP v. Dimant, involved a claim by the State against a dry cleaning operator that allegedly caused groundwater contamination in the Borough of Bound Brook. The high court found that a single site visit during which the State observed a pipe leaking dry cleaning solvents was insufficient to impose liability upon the owner/operator for area-wide groundwater contamination. The Court concluded that a responsible party "must be shown to have committed a discharge that was connected to the specifically charged environmental damage of natural resources - groundwater damage - in some real, not hypothetical, way. A reasonable nexus or connection must be demonstrated by a preponderance of the evidence." In other words, mere observation of hazardous substances being discharged from a facility in the vicinity of a groundwater plume-even a plume composed of similar substances-does not relieve the NJDEP (or a private party suing for contribution) of its obligation to prove that the discharge was reasonably linked to the contamination. (Read more about the decision here.)
In October, the Appellate Division reached a decision in State Farm v. Shea that may serve as a due diligence wake up call to the residential real estate market. In that case, the Appellate Division found that a residential property owner was responsible for an underground storage tank that leaked fuel oil onto his neighbor's property. The owner never used the tank and did not know that it existed or was leaking, but he did not conduct any environmental inspection before buying his property. The Court found that, had the owner conducted an environmental assessment before closing, he may have been able to assert the innocent property owner defense under the Spill Act.
Later in October, the Court again addressed the innocent purchaser defense when it found that, pursuant to a 2001 amendment, the defense creates liability for current owners of contaminated property who purchased the property before 1993 (a watershed year for Spill Act liability), unless the owner conducted environmental due diligence based on generally accepted good and customary standards.
These developments have important impacts on owners and operators of contaminated property. Owners and operators may not be liable if the government (or an allegedly impacted third party) cannot show that contamination is directly attributable to a prior release for which an owner/operator is responsible. The fact that an owner/operator used materials in their processes that were later found in the environment may not alone be enough to prove liability.
|
|
NJDEP Updates Vapor Intrusion Guidance,
Defends "Waiver Rule" Before Appellate Court
Effective this month, the NJDEP has updated its vapor intrusion guidance. Vapor intrusion, or "VI," refers to hazardous substances in contaminated soil or groundwater that may volatilize (i.e., disperse as a gas) and migrate upward through subsurface soils or other pathways and impact the indoor air quality of overlying buildings. Depending on the extent of hazardous substances present in the sub-slab or indoor air of a building, a responsible party may be required to monitor and/or mitigate the vapor intrusion pathway. Where levels of vapor intrusion exceed applicable standards, it may present an "immediate environmental concern" requiring rapid action. Site owners/operators should be sensitive to the changes in VI requirements, which apply to ongoing cleanup sites. More information is available at the NJDEP vapor intrusion website or by contacting a member of our environmental law team.
Earlier this month, the New Jersey's intermediate appellate court heard oral arguments on a case challenging the validity of the so-called "waiver rule," which enables the NJDEP to forego strict compliance with certain environmental regulations. The Court will decide whether the Christie administration exceeded its authority in enacting the waiver rule, or whether it should stand as a proper exercise of executive power. The Court's decision will impact landowners and developers who seek relief from what may be viewed as onerous land use regulations, as well as other stakeholders whose properties or businesses may be impacted by waiver of certain environmental requirements.
|
|
Court Rejects "It's My Environmental Consultant's Fault" Argument In Sampling Penalty Case
In a penalty assessment case decided last month, the Appellate Division was not persuaded by a site owner/operator's argument that its environmental consultant failed to conduct sampling required by the NJDEP following a fuel oil leak. At issue was a leading South Jersey fuel oil company's failure to adhere to NJDEP requirements that it test neighboring potable wells following discharges from its gasoline station. In their defense, the responsible parties argued that the failure to submit sample results was caused by the environmental consultant hired to perform the work. The Court held that the responsibility to respond to NJDEP directives belongs to the responsible parties, who had to make sure that the work was being undertaken by their consultants.
This decision signals that if a responsible party has specified environmental responsibilities, that party must ensure that its obligations are fully satisfied. It may not be a legal defense that a consultant fails to fully perform the obligations delegated to him or her by the responsible party.
|
Firm Brings Suit on Behalf of Paulsboro Residents
The environmental attorneys at Lieberman & Blecher have filed suit in on behalf of residents of Paulsboro, New Jersey impacted by vinyl chloride that was released when a train derailed on the morning of November 30, 2012. This case, brought on behalf of more than 50 adults and minors who live in close proximity to the site of the train derailment, was initially filed in Gloucester County State Court. The eight count Complaint alleges that the railroad defendants, as well as the engineer of the train that derailed and the dispatcher who allegedly authorized the train to proceed under unsafe conditions, committed negligence, engaged in an abnormally dangerous activity, committed negligent supervision, committed a trespass, committed assault and battery, and created a private and public nuisance. The suit seeks compensatory damages, punitive damages, medical surveillance and attorneys' fees for those who have been injured or otherwise impacted by the derailed train, which released a toxic cloud of vinyl chloride that adversely affected the residents of this community. A copy of the Complaint in the case, titled Kidd, et al. v. Conrail, et al., is available on our website.
|
|
L&B Attorneys Continue to Assist Sandy Victims
In the aftermath of Superstorm Sandy, the attorneys of Lieberman & Blecher have been diligently assisting clients in responding to the impacts of the storm and beginning to rebuild. Our team has helped clients confront various storm-related issues, including environmental damage that occurred during Sandy, such as discharges of hazardous substances and petroleum that impacted clients' properties along with flood waters.
Our team of environmental, insurance coverage, and land use attorneys are prepared to assist clients with insurance and regulatory challenges involved in post-Sandy rebuilding efforts. Property and business owners impacted by Sandy can rely on our team's long history of excellence in insurance coverage, regulatory issues, and land use matters.
|
10 Jefferson Plaza, Suite 400
Princeton, New Jersey 08540845 Third Avenue, 6th FloorNew York, NY 10022Telephone: 732.355.1311
|
|
|
|
|
|
|
|
|
|
