APRIL-MAY 2012 NEWSLETTER
 
Greetings colleagues and friends!
 
There are a number of new and exciting developments this Spring concerning Lieberman & Blecher's environmental, land use and litigation practice areas that we are excited to share with you.  Our attorneys have been following the latest developments in site remediation and natural resource damage law, and we have been participating in regional and national seminars relevant to our environmental and real estate practices.  You can read more about these 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. 
 
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SRRA-LSRPDeadline to Begin Complying with New Jersey's Site Remediation Reform Act Looms; Do You Have an LSRP?

  

NJDEP

Under New Jersey's Site Remediation Reform Act, owners of contaminated sites have until Monday, May 7, 2012 to select an independent environmental professional to supervise their site remediation plans, a function that, until recently, was performed by the State.  While property owners scramble to meet the May 7, 2012 deadline from the New Jersey Department of Environmental Protection ("NJDEP") to hire a Licensed Site Remediation Professional ("LSRP"), many property owners may still not appreciate the full implication of this policy change.  While the aim of the legislation is to cut through red tape and make contaminated site remediation faster, there is also the possibility of increased cost, as some property owners consider whether they should hire both an LSRP as well as a second  and independent environmental consultant that does not carry a state license (and the reporting and other requirements that come with it).  Further, the Site Remediation Reform Act imposes certain cleanup time frames and the penalties for non-compliance with these deadlines are severe, including the possible loss of control over remedial strategy at your site.

 
Owners of contaminated sites can also look forward to a new ranking system that is being implemented by the NJDEP this fall, which will rank sites based upon their potential danger to public health, safety or the environment.  The sites will be separated into five categories with Category 1 representing the least potential risk and Category 5 representing the highest potential risk.  This list will be posted online and property owners will only have one chance to appeal the rankings and categories once the list is published.  It is imperative that property owners consider the status of their sites, and contact an attorney to lodge an appeal with the NJDEP if they believe that their site is inaccurately categorized because this categorization may impact their cleanup responsibilities under the new law and regulations.

For more on these impending changes, browse our environmental law blog.

 

NRDsNatural Resource Damage Claims by NJDEP Suffer Setback

  

The Appellate Division of the New Jersey Superior Court recently dealt a blow to the New Jersey Department of Environmental Protection's ("NJDEP") Natural Resource Damage ("NRD") program.  On March 20, 2012, the intermediate appellate court upheld a trial court's decision denying the State natural resource damages for groundwater contamination at an industrial site in Central Jersey. The case, NJDEP v. Essex Chemical Corp., may signal a reduction in the number of NRD claims brought or the amount of damages sought by the State, as their methodology for calculating NRDs -- particularly for groundwater contamination -- has been seriously questioned.

Natural resource damages, or NRDs, are separate and distinct from the costs associated with cleaning up a contaminated site.  While cleanup relates to the removal of hazardous substances from the environment, NRDs refer to the loss of public resources -- such as bodies of water, beaches, streams, and groundwater -- which may be made unavailable to the public as a result of contamination.  When the NJDEP seeks NRDs (at least in litigation), the State demands that the allegedly impacted resource be returned to a pristine condition, which may require additional cleanup not envisioned during the underlying site remediation.  The State also demands compensation for the time period (usually years) during which the resource was "offline,"
i.e., from the time the contamination began, to the time when the resource was returned to a pristine condition.  In the Essex Chemical case, these damages topped $8 million. 
 
In Essex Chemical, the trial court refused to award NRDs because the State failed to prove that the original cleanup--which was ongoing, approved by the NJDEP, and had drastically reduced the contamination--was insufficient to return the resource (groundwater) to its predischarge condition.  The trial court was also critical of the State's evidence on its compensatory damage claim, finding no proof that the state suffered a loss of natural resource services that would entitle it to a multi-million dollar NRD award.  The Appellate Division found no basis for reversing the trial court decision and was likewise critical of the methodology that the State relied on to calculate its alleged losses.  Like the trial court, the Appellate Division found that the claimed NRDs would impose costs on the company that were not related to injuries supposedly resulting from the contamination, and would provide the State with an unwarranted "windfall."

The decision in Essex Chemical is good news for those facing natural resource damage claims, and it will be interesting to see if the NJDEP appeals this decision to the New Jersey Supreme Court. The attorneys at Lieberman & Blecher will continue to monitor this and other natural resource damage issues.  You can subscribe to our blog for the most recent developments.

 

EDRL&B Attorneys Participate in National Environmental Summit Concerning Residential Land Contamination Issues
 

For over a decade, the attorneys at Lieberman & Blecher have assisted clients who have experienced contamination of their residential land. Environmental impacts affecting residential land may include contamination from underground heating oil storage tanks located on a homeowner's property or emanating from a neighbor's property. Groundwater contamination can also migrate from off-site and impact a homeowner's land.  Likewise, potentially harmful vapors from a contaminated groundwater plume can rise in a gas phase and enter residential structures. 

 

EDR Logo

On, April 26, 2012, shareholder Stuart Lieberman and associate Shawn LaTourette joined other environmental professionals from across the country at a summit hosted by Environmental Data Resources to consider how residential property owners and prospective property owners could be better informed about environmental impacts that affect their land.  Many of those in attendance believed that prospective property owners should consider conducting a low-cost environmental screening that would identify known environmental issues within the vicinity of the new home.  Armed with basic information about contaminated sites and other environmental impacts in their neighborhood, homeowners could make more informed decisions, such as determining whether to conduct environmental testing prior to committing to what, for many, is the largest investment one can make.  While the group also expressed concern over adding more cost and procedure to the already expensive and time consuming home-buying process, many believed that information is power and that potential homeowners can make decisions about the extent of the environmental due diligence they wish to conduct.  Seeking baseline information about the environmental impacts present in your neighborhood before closing could be the place to start.

 

Our attorneys plan to remain engaged in this discussion about how best to address the environmental issues that impact residential property.  In the meantime, we will continue to guide clients through both the residential and commercial real estate process, using our environmental experience to help them navigate this complex area.

eBillboardsFirm Helps Community Avoid Electronic Billboards  
 
Lieberman & Blecher was recently retained by the Neighborhood Coalition of Franklin Township,a non-profit organization, to represent the group's concerns about a proposed Franklin Township (Somerset County, New Jersey) electronic billboard ordinance.  The group opposes the new ordinance, which would allow electronic billboards within municipal limits, including in residential areas. Our clients oppose the new ordinance for a variety of reasons, including public safety and aesthetics.  

 

Throughout New Jersey and New York, communities have been confronting the electronic billboard issue. Studies show that electronic billboards can present a public safety threat.  For example, while electronic billboard images may change every 5 to 10 seconds, studies show that as little as 2 seconds of road distraction may be dangerous for drivers.

 

Lieberman & Blecher has represented many community groups and municipalities themselves in similar cases. Often, these cases are heard before a municipal body, such as a local land use board. However, these cases can end up in litigation if the local board fails to property consider the concerns of the parties or the public.  Our land use attorneys have a long history of representing clients, including non-profit opposition groups, in land use matters and frequently appeal land use and zoning decisions where our clients believe that local decision-making does not adequately serve the interests of the community.
RealEstateFirm Presents at Annual Real Estate Conference  
 

On April 18, 2012, shareholder Stuart Lieberman and member Michael Sinkevich participated in the annual Real Estate conference hosted by the New Jersey Institute for Continuing Legal Education.  Mr. Lieberman moderated the seminar and spoke about the ethical obligations of attorneys in real estate transactions, in both the residential and commercial contexts.  Mr. Sinkevich advised the group, which consisted of attorneys, brokers, agents and other real estate professionals, about recent changes in New Jersey environmental law that will affect real estate transactions throughout the state, including the implementation of the New Jersey Site Remediation Reform Act, which will have implications for transactions involving contaminated property, such as brownfields sites that property owners and investors plan to return to productive industrial, commercial or residential use following an environmental cleanup.