To Grant or Not to Grant Environmental Site Access Requests

Manko Gold Katcher & Fox
Jonathan H. Spergel and Diana A. Silva

May 19, 2015

Investigating or remediating environmental contamination at a site often requires access to neighboring property. A property owner may receive a request for access from government environmental agencies, which are vested with broad statutory rights to access properties to investigate or respond to actual or threatened releases of hazardous substances, or a private party that is responsible for addressing the contamination.  There are also significant differences in state law regarding private requests for access to off-site property for environmental investigation or remediation.  Property owners receiving an access request also face several considerations regarding liability and damages resulting from the access or from the discovery of contamination on their sites, which can be resolved through the negotiation of a private access agreement.

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Proposed New Rule Changes for Underground Storage Tanks (UST’s) in New Jersey

Synergy Environmental, Inc.
Robert J. May, PE, CHMM

May 6, 2015

NJDEP recently published proposed rule changes concerning underground storage tanks (USTs). These proposed rules were published in the New Jersey Register on May 04, 2015. Comments are requested by July 03, 2015 providing a 60 day comment period.

In general, the proposed regulations are implementing requirements and guidelines by USEPA.

The most significant proposed changes are:

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Is There Any End To Post-Closure Care Under RCRA?

Foley Hoag, LLP
Seth D. Jaffe

May 13, 2015

Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA.  It’s not good news.

Although the Guidance is technically neutral concerning shortening or lengthening post-closure periods, let’s not kid ourselves; this is all about extending post-closure care.  For how long?  How does forever sound?

Why do I think that this is all about extensions?  First, if anyone can give me any examples where EPA has ever decreased this type of monitoring/oversight period, I’d love to see them.  Second, the examples that EPA gives in the draft guidance are pretty much exclusively the types of issues that would lead to a longer post-closure period, rather than a shorter one.

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Corporate Counsel Publishes “D&O Insurance for Environmental Liability Exposures”

Bowditch & Dewey
Mary-Pat Cormier, Robert D. Cox &
Jennifer L. Garner

May 8, 2015

Last week, Corporate Counsel published an article that we wrote on environmental liability exposures for corporate directors and officers.  Companies and their directors and officers are subject to regulatory scrutiny by a variety of state and Federal regulators, including the EPA as well as the SEC, both of which have indicated an enhanced enforcement agenda.  Coupled with that increased regulatory emphasis is the potential for tag-along shareholder litigation against directors and officers:  (1) Securities class actions arising out of alleged failures to disclose environmental risks and liabilities, including scrutiny by state and federal regulators and compliance with state and federal environmental regulations; and (2) Derivative claims against directors and officers for breach of fiduciary duty, waste of corporate assets (for payment remediation, cleanup and penalties) and unjust enrichment, as well as significant and potentially costly corporate governance changes.

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