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  • Jun 08, 2020Norris McLaughlin Environmental Law Practice Group Highlighted Again in Chambers USA 2020

    Norris McLaughlin, P.A., is proud to announce that Chambers USA, one of the oldest and most prestigious legal listings in the world, has named the firm and three of its lawyers to its list of leading law firms and lawyers in New Jersey for 2020. These recognitions highlight the firm’s investment in and development of practice areas, as well as its commitment to preeminence in the legal industry.

    Edward A. Hogan and Martha N. Donovan, Members of the firm and Co-Chairs of its Environmental Law Practice Group, were ranked Band 1, the highest ranking an attorney can receive, in the Environment section. Jeffrey M. Casaletto, also a Member of the firm, was ranked as “Up and Coming” in the Environment section for helping drive the firm’s growth.

    About the Norris McLaughlin Environmental Law Practice Group

    Hogan, a Fellow of the American College of Environmental Lawyers, has been recognized for his decades of experience in site remediation matters. Chambers states the “[h]e is highly regarded for his work in site cleanup and cost recovery proceedings” and “commended by clients as ‘smart, responsive and experienced.’”  In past years, clients have called Hogan “a lawyer of choice” who “knows the law inside out” and they “trust his instincts and advice completely.” Currently listed in four categories in the current edition of Best Lawyers in America: Environmental Law, Energy Law, Litigation–Environmental, and Natural Resources Law, Hogan has been included in the Environmental Law section since 1993.

    Donovan, who was also named the Best Lawyers in America Litigation-Environmental “Lawyer of the Year” in the Woodbridge, New Jersey, Metro Area, for 2020, has previously been praised as “an exemplary litigator who, according to interviewees, ‘achieves positive and timely results for clients.’” She has been highlighted for her expertise in insurance coverage and state and federal environmental regulations. Chambers states that market commentators have said Donovan “‘has the full skill set’ when it comes to environmental law.” This year, her “wealth of experience handling issues relating to Superfund sites and environmental litigation” earned her another year of recognition.

    For the second year now, Casaletto has been recognized for navigating remedial investigations and noted for his “deep understanding of environmental law,” as well as hazardous waste, site remediation, and solid waste regulations, being described as “incredibly helpful” and “terrific to work with.” The sources Chambers spoke with mention that “[h]e’s knowledgeable and good at what he does.”

    Norris McLaughlin was also recognized in the Environment category for being regularly sought out to represent clients before state and federal courts and various agencies. Its Environmental Law Practice Group is designated as a well-respected group with extensive experience in handling disputes concerning contaminated land and property damage claims. The Norris McLaughlin environmental law attorneys provide a wide range of counseling and litigation services in this challenging area. Chambers states that sources they’ve spoken to say, “It’s a great team, which is client-centric and knowledgeable of the law.”

    About Chambers USA

    Chambers USA ranks firms and attorneys considered leaders in their respective fields. Chambers and Partners have been publishing their world-famous guides to the legal profession since 1990. In addition, they host major award ceremonies in London and New York to honor the achievements of the world’s leading lawyers. The key to the success of their legal directories and the validity of their awards is the in-depth, unbiased research conducted by Chambers’ team of highly qualified and experienced researchers. The guiding principle behind Chambers USA is to meet the needs and expectations of the client. For more information and methodology, please click here.

    Posted in: Edward A. Hogan, Environmental, Jeffrey M. Casaletto, Martha N. Donovan, News | Tags: , , ,

  • Mar 26, 2020Tension Between Site Remediation and Expeditious Estate Administration

    When considering environmental liabilities in the context of an estate administration, property owners can take proactive steps to abate the risk, or at least make it more manageable for their heirs.

    Claims Against Estates 

    Environmental liabilities generally do not lend themselves to the typical resolution procedure applicable to non-environmental liabilities in estate administrations. Generally, a creditor of a decedent has nine months from the date of the decedent’s death to present a claim in writing to the executor or administrator of the decedent’s estate (collectively “Personal Representative”; N.J.S.A. 3B:22-4). If a creditor fails to present a claim within the nine-month period, the Personal Representative is not personally liable to the creditor with respect to any assets that the Personal Representative may have delivered or paid in satisfaction of any lawful claims, devises, or distributive shares. Id. After the expiration of the nine-month period and distribution of estate assets, creditors can still pursue their claims against estate beneficiaries under their Refunding Bonds (N.J.S.A. 3B:22-16).

    However, Personal Representatives of estates whose decedent held potentially contaminated real property, in his or her individual name or in a general partnership, face unique and difficult challenges in attempting to satisfy obligations under environmental law within the statutory framework discussed above. There are two distinct reasons for this difficulty: (a) environmental liabilities of estates often have not been quantified, an often-lengthy process; and (b) long-tail obligations may attach when an environmental remediation leaves contamination on-site and engineering and institutional controls are utilized.

    The enactment of the Site Remediation Reform Act (SRRA) in 2009 should have largely eliminated the first problem, since all properties with historical (pre-SRRA) contamination should already have been reported and investigated. Unlike the Industrial Site Recovery Act (ISRA) (which mandated remediation of only a subset of properties—generally properties with operating manufacturing, and certain warehousing and service businesses—and only upon their sale or closure), the SRRA required reporting of all properties with known contamination and set forth a strict schedule for completion of investigation (five years from the 2012 effective date, i.e., 2017) and remediation (10 years, i.e., 2022). Thus, by now, all contaminated properties existing in 2009 should have been identified, the investigation completed, and the remediation well underway.

    The reality, however, is different. Without a pressing transaction and the attendant infusion of funds, many owners of historically contaminated properties, especially those with no current productive use, simply have not complied with the SRRA’s mandates. Unlike ISRA matters, without a purchaser pushing for compliance and without an infusion of new funds, many owners felt neither the pressure to report nor the ability to fund an investigation and remediation; thus, their property remains unaddressed.

    However, upon the death of the property owner, the Personal Representative of the property owner’s estate now has the compliance obligation and should not risk sanctions for non-compliance. Naturally, the Personal Representative will face challenges in selling real property that needs to be liquidated for the payment of debts, expenses, and taxes, and for ultimate distribution to the beneficiaries. Where property is specifically bequeathed, the beneficiary is faced with the decision of whether to disclaim the property (a decision that must be made, pursuant to Internal Revenue Code Section 2518, within nine months of death to avoid U.S. Gift Tax consequences), or perhaps assert claims against the remainder of the estate for additional funds to investigate and remediate the contaminated property.

    Timing Challenges

    Personal Representatives face the timing challenges posed by the fact that the Preliminary Assessment, Site Investigation and Remedial Investigation (“PA,” “SI” and “RI,”) process can take several years. With the SRRA’s creation of the Licensed Site Remediation Professional (LSRP), the delay of seeking NJDEP approval at each step of the remedial process has been reduced. Nevertheless, inherent delays are associated with the process of preparing the PA, SI and RI. In addition, the finality of the “end” of the remedial process, the issuance of a Remedial Action Outcome (RAO), is subject to a three-year period during which NJDEP can audit and overturn the RAO.

    The other timing issue is that the obligations of the Responsible Party (RP) may never end. If contaminated soils are left in place under an impermeable cap (typically pavement, building slab, engineered greenscape, etc.), subject to a deed notice (often the only rational and cost-effective remedy), it is accompanied by a Soils Remedial Action Permit (Soils RAP). The RP is perpetually the permittee, although the then-current owner is a co-permittee. The Soils RAP requires inspection and maintenance of the cap, annual inspection, biennial report, annual fee, and perpetual establishment and maintenance of “hard” Financial Assurance (FA) in the form of a letter of credit, line of credit, or fully-funded trust in the amount of the net present value of performing the permit conditions.

    Matters involving groundwater contamination may require groundwater treatment, but even then, the very stringent State Groundwater Quality Standards (GWQS) are often not achieved.   In those fairly typical situations, the only remaining remedy is Natural Monitored Attenuation.  That means natural dilution and degradation processes are modeled, and a projection of the size and duration of the contaminated plume is calculated. The RP is obligated to periodically (typically annually, sometimes for 20 years or more) sample the groundwater plume for the calculated duration to ascertain that the GWQS have been achieved. If they have not, then the RP may have to extend the period of monitoring, or in some circumstances, implement additional remedial measures. These obligations are incorporated into a Groundwater RAP. As with a Soils RAP, the original RP is perpetually a permittee, with the current property owner a co-permittee. Unlike a Soils RAP, no FA is required.

    Dealing with Environmental Liabilities in Estate Administration

    Statutory liability for environmental liabilities is generally fixed, but the amount and timing of the payment obligation are uncertain, particularly where the investigative and remedial process is ongoing. In that circumstance, the Personal Representative would be ill-advised to distribute estate assets, even upon receipt of refunding bonds from all beneficiaries, without establishing an adequate reserve for environmental liabilities (See, N.J.S.A. 3B:22-11). But in the context of environmental liabilities, what amount will be adequate?

    Naturally the most conservative approach would be for the Personal Representative to keep the estate open and retain all assets available to satisfy the estate’s remedial obligations until completion. However, as indicated above, resolution may not come for many years after the decedent’s death, leading the Personal Representatives to seek alternatives to expedite distribution of estate assets to beneficiaries to the extent possible without exposing themselves to personal liability.

    One approach could be for the Personal Representative to seek an LSRP’s guidance to calculate an adequate reserve for environmental obligations and incorporate that reserve into an application for approval of a formal judicial accounting and discharge, putting the DEP on notice as an interested party. While liability may still exist for the beneficiaries under their refunding bonds, a discharge orchestrated in this manner should serve to exonerate the Personal Representative from personal liability for making distributions in excess of the reserve (See, N.J.S.A. 3B:17-8).

    The Personal Representative may also want to seek advice and direction from the court in certain situations before expending estate assets on environmental investigation, remediation and clean-up costs. For example, residuary beneficiaries and specific devisees of contaminated real property are likely to differ on the extent to which estate funds should be expended on environmental remediation costs, particularly where the liquid assets of the estate are not significant in relation to the potential exposure. An action for advice and direction gives all parties the opportunity to be heard and can protect the Personal Representative from potential breach of fiduciary duty claims.

    In sum, when considering environmental liabilities in the context of an estate administration, the adage “the best defense is a good offense” is apt. A review of the case law and statutes regarding environmental liability reveals that transparency is key. Property owners who know their property may be susceptible to environmental liability claims should be upfront with their executors, trustees, beneficiaries, and heirs to make them aware of potential issues facing properties that these people will come to own and/or manage. Transparency will also empower fiduciaries and/or beneficiaries to preserve the defenses available to them under state and federal environmental liability laws. For example, under both the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) (federal law) and the New Jersey Spill Compensation and Control Act (NJ Spill Act) (state law), the “innocent purchaser” defense is available to subsequent titleholders of contaminated property who are able to prove that they made reasonable and appropriate inquiry into the condition of the property, the past owners of the property, and previous uses of the property; and to those who have not contributed to the contamination. Without knowledge of a potential contamination problem, or the threat thereof, subsequent titleholders are not likely to engage in a high level of due diligence prior to taking title to a property.

    In addition to preserving defenses available to a subsequent titleholder, being transparent in acknowledging and investigating the source of the problem may also highlight any right to contribution from previous owners or dischargers that the property owner may have. Such defenses may be preserved and carried forward by the Personal Representative or heirs upon the property owner’s death.

    Finally, although there is no way to totally remove the specter of environmental liability issues cast upon fiduciaries, beneficiaries, and heirs, a property owner facing these challenges can take proactive steps to abate the risk or make it more manageable for those they leave behind.

    Edward A. Hogan is co-chair of the Environmental Law Group at Norris McLaughlin in Bridgewater. James J. Costello Jr. is co-chair of the firm’s Trust, Estate, and Individual Tax Group. The authors are grateful for the assistance of their colleagues, Nicholas J. Dimakos and Shauna M. Deans, who are associates at the firm.

    Reprinted with permission from the March 25, 2020, issue of the New Jersey Law Journal. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

    Posted in: Edward A. Hogan, Environmental, Estate Planning & Administration, James J. Costello, Nicholas J. Dimakos, Shauna M. Deans |

  • Jun 28, 2019Edward Hogan and Martha Donovan Recognized by Who’s Who Legal

    Edward A. Hogan and Martha N. Donovan, Members of law firm Norris McLaughlin, P.A., and Co-Chairs of its Environmental Law Practice Group, have been recognized in “WWL: Environment 2019” by Who’s Who Legal.

    Who’s Who Legal has acknowledged exceptional legal practitioners in 31 areas of business law since 1996 and highlights over 10,000 lawyers in over 100 countries.  Their standards and rigorous evaluation process result in one of the top lists in the nation. To learn more about the evaluation process, please visit www.whoswholegal.com.

    A resident of Liberty Corner, Hogan represents and counsels developers, redevelopers, manufacturers, commercial entities, and highly-regulated service businesses in all aspects of environmental law and litigation.

    For more than 35 years, Hogan has been at the forefront of site remediation issues in New Jersey.  He develops integrated strategies for responding to governmental mandates; pursuing cost recovery actions; and facilitating purchase, sale, and redevelopment of contaminated properties.  A frequent author and lecturer for legal, business, and trade groups, he also teaches at continuing professional education programs.

    Hogan is listed in four categories in the current edition of The Best Lawyers in America: Environmental Law, Energy Law, Litigation-Environmental, and Natural Resources Law.  He has been included in the Environmental Law section since 1993 and on the list of New Jersey Super Lawyers in the Environmental Section every year since its inception in 2005.  Hogan is ranked Band 1, the highest ranking an attorney can receive, in the Environment section by Chambers USA, one of the oldest and most prestigious legal listings in the world.  He was “recognized for his focus on site remediation and cost recovery actions and is lauded by commentators for his ‘fantastic knowledge, practicality, and pragmatism.’”

    Hogan has served in numerous leadership roles with the New Jersey State Bar Association, Commerce and Industry Association of New Jersey, New Jersey Business and Industry Association, Environmental Business Association of New Jersey, New Jersey OSHA & Industry Communication Alliance, and Technical Regulations Advisory Coalition.

    Hogan earned his J.D. from Georgetown University, his M.F.S. from Yale University School of Forestry and Environmental Studies, and his B.S. from Saint Peter’s University.

    A resident of West Windsor, Donovan devotes her practice to environmental law and complex litigation with an emphasis on the defense of environmental property damage claims. She also has considerable experience working on related complex insurance coverage matters.

    Donovan routinely represents clients in administrative and judicial proceedings before state and federal courts and agencies, including the New Jersey Department of Environmental Protection, Environmental Protection Agency, and the New Jersey Office of Administrative Law. Donovan, who began her career as a regulatory and transactional lawyer is now primarily a litigator with a technical background. She has litigated matters relating to the generation, storage, discharge, or release of hazardous substances, including representation under CERCLA/ Superfund, and has defended actions filed by adjoining, predecessor, and successor property owners alleging physical injuries, damages, or lost property values. In addition, barring successful resolution of associated insurance coverage matters, she has prosecuted insurance declaratory judgment lawsuits related to the recovery of insurance policy proceeds to pay for investigative and remedial costs incurred in connection with environmental investigation and remediation.

    Donovan has authored articles and has made presentations to various trade groups and associations on issues ranging from CERCLA, the Spill Compensation and Control Act, and the availability of insurance coverage for various aspects of business-related accidents. For many years she has been ranked Band 1, the highest ranking an attorney can receive, in the Environment section of Chambers USA, one of the oldest and most prestigious legal listings in the world, and has been praised as “an exemplary litigator who, according to interviewees, ‘achieves positive and timely results for clients.’” Donovan has also been selected, again for many years now, for inclusion on the list of New Jersey Super Lawyers and Best Lawyers and was named the Best Lawyers in America Litigation-Environmental “Lawyer of the Year” in the Woodbridge, New Jersey, Metro Area for 2016 and 2018.

    Donovan is a member of the New Jersey State and American Bar Associations, the Society of Women Environmental Professionals, and the Environmental Law Section of the New Jersey State Bar Association. She earned her J.D. from the University of Virginia School of Law and her B.A. in Chemistry from Randolph-Macon Woman’s College, now Randolph College, Phi Beta Kappa, magna cum laude.

    Posted in: Edward A. Hogan, Environmental, Martha N. Donovan, News | Tags: , , , ,

  • May 01, 2019Norris McLaughlin Highlighted in Chambers USA 2019

    Norris McLaughlin, P.A., is proud to announce that Chambers USA, one of the oldest and most prestigious legal listings in the world, has named the firm and two of its lawyers to its list of leading law firms and lawyers in New Jersey for 2019.  A third lawyer has been ranked as “Up and Coming” for helping drive the firm’s growth.  This recognition highlights the firm’s investment in and development of practice areas, as well as its commitment to preeminence in the legal industry.

    Edward A. Hogan and Martha N. Donovan, Members of the firm and Co-Chairs of its Environmental Law Group, were ranked Band 1, the highest-ranking an attorney can receive, in the Environment section.  Jeffrey M. Casaletto, a Member of the firm, was ranked as “Up and Coming” in the Environment section.

    Hogan has been recognized for over a decade for his experience in site remediation matters and ISRA compliance and received numerous commendations for his counsel on air, water, chemical, and hazardous waste contamination matters.  Clients called him “a lawyer of choice” who “knows the law inside out” and they “trust his instincts and advice completely.”  Donovan, who was also named the Best Lawyers Litigation-Environmental “Lawyer of the Year” in the Woodbridge, New Jersey, Metro Area for 2018, was praised as “an exemplary litigator who, according to interviewees, ‘achieves positive and timely results for clients.’”  She is highlighted for her expertise in insurance coverage and state and federal environmental regulations.  Casaletto is noted for his “deep understanding of environmental law” as well as hazardous waste, site remediation, and solid waste.  He was described as “incredibly helpful” and “terrific to work with.”

    The firm was also recognized in the Environment category for being regularly sought out to represent clients before state and federal courts and various agencies.  The Environmental Law Group is designated as a well-respected group with extensive experience in handling disputes concerning contaminated land and property damage claims.

    Chambers USA ranks firms and attorneys considered leaders in their respective fields.  Chambers and Partners have been publishing their world-famous guides to the legal profession since 1990.  In addition, they host major award ceremonies in London and New York to honor the achievements of the world’s leading lawyers.  The key to the success of their legal directories and the validity of their awards is the in-depth, unbiased research conducted by Chambers’ team of highly qualified and experienced researchers.  The guiding principle behind Chambers USA is to meet the needs and expectations of the client.

    Posted in: Edward A. Hogan, Environmental, Jeffrey M. Casaletto, Martha N. Donovan, News | Tags: , , , , , , , ,

  • Aug 10, 2018Edward A. Hogan Elected as Fellow of the American College of Environmental Lawyers

    The American College of Environmental Lawyers (ACOEL) recently announced the election of 24 new Fellows and two Honorary Fellows. Included in this group of attorneys from throughout the nation is Edward A. Hogan, a Member of law firm Norris McLaughlin, P.A., and Co-Chair of its Environmental Law Group.

    ACOEL President, John C. Cruden, stated that the lawyers elected as Fellows to the College “include the top environmental lawyers in government service, public interest, academia, and private practice drawn from across the country. These individuals, chosen by their peers, have earned this recognition based on achievements over a minimum 15-year period, during which they have led the field in diverse areas of environmental law and policy.”

    ACOEL is an association of distinguished environmental lawyers whose members are admitted by invitation only. ACOEL members are dedicated to maintaining and improving the ethical practice of environmental law, the administration of justice, and the development of environmental law at both the state and federal level.

    Hogan represents and counsels developers, redevelopers, manufacturers, commercial entities, and highly-regulated service businesses in all aspects of environmental law and litigation.

    Hogan earned his J.D. from Georgetown University, his M.F.S. from Yale University School of Forestry and Environmental Studies, and his B.S. from Saint Peter’s University.

    Posted in: Edward A. Hogan, News | Tags: , , , ,

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