Month: September 2016

Gordon & Rees LLP
Lee Henig-Elona

September 13, 2016

On August 18, 2016, a New Jersey appellate court ruled that a property seller’s failure to disclose environmental contamination and cleanup could expose the seller to liability for fraud. In Catena v. Raytheon Co. the Appellate Division reversed a trial court’s decision which had granted summary judgment based on the statute of limitations. The Appellate Division found that the “discovery rule” applied to claims asserting fraud and that Catena, the purchaser of commercial property, was not time barred in his lawsuit which was brought more than a decade after his purchase. The “discovery rule” delays the commencement of the limitations period, i.e., a plaintiff’s claim does not accrue until the plaintiff discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an action claim. In a real estate setting, intentional nondisclosure of a material defect which is not observable by a Buyer can give rise to a finding of fraud by the Seller and the statute of limitations will not bar a suit many years after the sale if the Buyer, after appropriate due diligence, had no reason to know of the defect.

Continue Reading

Thompson Coburn LLP
Peter S. Strassner, Paul Sonderegger and Sara Chamberlain

September 12, 2016

Originally Published by Thompson Coburn LLP

Real estate developers recognize the importance of obtaining a Phase I environmental site assessment to review existing environmental site conditions. However, other conditions — creeks, streams, ditches or other water features — can too often be overlooked. Absent proper planning, such features may lead to major delays and cost overruns, not to mention civil and criminal penalties.

Under the Clean Water Act, a party must obtain a Section 404 permit from the Army Corps of Engineers before discharging any dredged or fill material into “waters of the United States.” This typically means that a permit must be obtained before construction or other work is performed in those areas, together with a water quality certification.

The term “waters of the United States” has been broadly interpreted to include traditional waters such as tributaries, lakes, rivers, streams, creeks, and wetlands, and more minor features such as prairie potholes, natural ponds, wet meadows and even ditches. In fact, an area can be classified as a water of the United States even if it does not hold water during most periods of the year. The rule defining “waters of the United States” has been repeatedly challenged, and the EPA and appellate courts have struggled to recognize and uphold a bright line rule.

Continue Reading

Squire Patton Boggs
Larry P. Schiffer

September 6, 2016

Originally Published in the Squire Patton Boogs Blog

In a case of first impression, a New York intermediate appellate court has held that the policyholder, rather than existing insurers, must be allocated environmental cleanup costs for periods of time when environmental cleanup insurance was not available in the marketplace. The decision reverses the denial of the insurer’s partial motion for summary judgment.

The case involved insurance coverage for long-term environmental property damage. Keyspan Gas East Corp. v. Munich Reins. Am., Inc., No. 16626, 2016 N.Y. App. Div. LEXIS 5824 (1^st Dep’t, Sept. 1, 2016). The insurer only covered 16 years of the alleged continuous environmental damages. The issue before the court was the proper allocation of the risk of loss from the continuing harm during periods of time when liability insurance was unavailable. The policyholder argued, and the motion court agreed, that under the applicable pro rata allocation analysis, the insurer was required to assume the allocated risk for losses occurring during periods when liability insurance was not available in the marketplace.

Continue Reading

Manko Gold Katcher & Fox
Bruce S. Katcher and Brett E. Slensky

September 1, 2016

Originally Published in the MGKF News Flash

On August 15, 2016, the New Jersey Department of Environmental Protection (NJDEP) proposed several amendments to its Solid Waste and Air Pollution Control rules at 48 N.J.R. 1526 to implement the Legacy Landfill Law, N.J.S.A. §§ 13:1E-125.1 – 125.8 (the Law), which established certain requirements triggered by the acceptance of waste at legacy landfills (landfills that ceased operations prior to January 1, 1982 and to which NJDEP’s current closure plan and escrow requirements do not apply) and closed sanitary landfills (landfills that generally ceased operations after January 1, 1982 and where NJDEP closure requirements are complete). These types of landfills have increasingly become candidates for redevelopment potentially involving the acceptance of new wastes to generate revenues to facilitate such redevelopment and/or proper closure. In addition, a number of the proposed amendments will also impact currently operating landfills, post-1982 landfills where closure activities are on-going and other NJDEP programs. The key proposed rule changes are briefly summarized below.

Proposed Changes for Legacy Landfills Undertaking Closure Activities or Accepting Additional Material and Closed Sanitary Landfills Accepting Additional Materials After Closure:

Continue Reading