The New Jersey Appellate Division recently ruled that a landowner’s lawsuit against a former attorney and environmental consultant could proceed to the discovery phase.  In CCM Properties, LLC, et al. v. Pieper, et al, the plaintiff engaged an environmental consultant to perform a ground penetrating radar survey of a property to determine whether any underground storage tanks were present.  The contract specifically stated that no historical analysis or soil sampling would be performed, and further…
The Appellate Division has affirmed a $66,200 administrative penalty imposed by DEP against the owner of a shopping center constructed atop a closed municipal landfill. The unpublished and non-precedential decision in NJDEP v. Raritan Shopping Center LP found liability based on current ownership of the contaminated site, despite the landowner never discharging hazardous substances and conducting due diligence prior to purchasing. Raritan purchased the property in 1993 after conducting environmental tests that discovered low levels…
On September 5, 2018, the United States Third Circuit Court of Appeals (“Third Circuit”) rendered a decision that could potentially implicate the NJDEP permitting process in future Natural Gas Act and other federal permitting actions. In Township of Bordentown, et al. v. FERC, No. 17-3207 (3rd Cir.  September 5, 2018), the Third Circuit held that the New Jersey Department of Environmental Protection (“NJDEP”) could not deny the Petitioners the ability to request an adjudicatory hearing…
Effective August 6, 2018, the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) adopted amendments to several key rules governing site remediation—including Discharges of Petroleum and Other Hazardous Substances (N.J.A.C. 7:1E); Heating Oil Tank System Remediation Rules; Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS,” N.J.A.C. 7:26C); and the Technical Requirements for Site Remediation (“Technical Regulations,” N.J.A.C. 7:26E). While this rule adoption made many modifications to these regulations, we call two significant…
In a recent decision, U.S. Masters Residential Property (USA) Fund v. New Jersey Department of Environmental Protection – Financial Services Element, the New Jersey Superior Court’s Appellate Division held that a claimant could not recover from the Spill Fund where contamination on the claimant’s properties was the result of historic fill and defuse anthropogenic pollution (“DAP”), not oil. The claimant owned several contiguous residential properties in Bayonne not far from Upper New York Bay and…
The EPA’s 2014 cooling water rule for existing power plants (40 C.F.R. pts. 122, 125) has survived challenges from both environmental and industry groups. The Second Circuit Court of Appeals upheld the contentious rule which allows for, among other things, case-by-case determinations of best technology available (BTA) required for minimizing adverse environmental impacts from cooling water intake structures (CWISs), finding that the rule was based on reasonable interpretations of applicable statutes and sufficiently supported by…
The Appellate Division of the Superior Court of New Jersey recently (in an unpublished opinion) applied the six year statute of limitations (“SOL”) for tortious injury to real property in barring plaintiff’s claim for permanent diminution in the value of its property. 320 Associates, LLC v. NJ Natural Gas Co., Docket No. A-1831-16T2 (N.J. App. Div. June 29, 2018). As a result, the neighboring property owner was unable to bring a claim for tortious injury…
On Monday, the United States Environmental Protection Agency (“EPA”) issued a Compliance Advisory Update announcing the implementation of streamlined changes to the Hazardous Waste Manifest submission process.  Pursuant to the Hazardous Waste Electronic Manifest Establishment Act, beginning on June 30, 2018, EPA will launch a new e-Manifest system nationwide, allowing Hazardous Waste Manifests to be created and submitted via the EPA website. Consequently, EPA will no longer be accepting paper manifests and paper manifests submitted…
The next time a government inspector comes to a business and inspects its dumpster, do not be surprised if the resulting legal problem involves both environmental and consumer fraud actions. During the last few years, a number of national corporations have found themselves in legal trouble because the inspector found both hazardous waste and customer records containing personal information in a dumpster. If the business is in New Jersey that means it will be dealing…
ESG investing is back in the news.  ESG investing evaluates a company’s or fund’s environmental, social and corporate governance performance when considering an investment in company stock or fund shares. Unlike years past, it is now conventional wisdom that companies and funds with strong ESG policies are good economic investments.  Those with weak or non-existent policies are not as prudent investments because they present a greater risk of facing events or publicity that will lower…