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  • Nov 05, 2020Norris McLaughlin Has Been Named a Tier 1 Metropolitan “Best Law Firm” in 11 Practice Areas by U.S. News – Best Lawyers® in 2021

    The law firm of Norris McLaughlin, P.A., is proud to announce that it has been selected for inclusion in eleven practice areas for the 2021 “Best Law Firms” metropolitan rankings by the U.S. News & World Report and Best Lawyers®. The firm’s full listing of First Tier Metropolitan rankings is as follows:

    • Arbitration
    • Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law
    • Commercial Litigation
    • Energy Law
    • Environmental Law
    • Litigation – Construction
    • Litigation – Environmental
    • Mediation
    • Product Liability Litigation – Defendants
    • Trusts & Estates Law
    • Workers’ Compensation Law – Employers

    Norris McLaughlin has also received a Tier 2 Metropolitan ranking in the following practice areas:

    • Banking and Finance Law
    • Communications Law
    • Corporate Law
    • Family Law
    • Family Law Mediation
    • Litigation – Bankruptcy
    • Natural Resources Law

    “This listing of Norris McLaughlin is an outstanding achievement for the practice groups and dedicated attorneys who serve our clients. The rankings represent independent substantiation of the value we provide our clients, producing real results through efficient and diligent counsel,” said John N. Vanarthos, Chairman of the firm.

    About U.S. News – Best Lawyers® “Best Law Firms”

    From the start, the mission of “Best Law Firms” has been to help guide referring lawyers and clients – from the country’s largest companies needing corporate legal advice to individuals needing a divorce or a will – issues with bet-the-company implications or potentially life-changing results respectively. The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their fields, and review of additional information provided by law firms as part of the formal submission process. For more information, including methodology, and the full listing, see bestlawfirms.usnews.com.

    About Norris McLaughlin

    Norris McLaughlin is a multi-practice, commercial law firm with offices in New Jersey, New York, and Pennsylvania. Though regionally based, the firm has grown its capabilities to include counseling on matters of national and international scope. Boasting a team of more than 120 attorneys practicing in over 25 legal disciplines and industry-focused groups, Norris McLaughlin is well-positioned to represent a wide range of client segments, including small business, middle-market companies, and Fortune 500 corporations, as well as the private individuals and families who own and run them.

    Once a humble two-man practice in Somerville, New Jersey, the firm has leveraged a multi-disciplinary legal practice with a deep dedication to superior client service to become the largest law firm in Somerset County and one of the Top 20 law firms based in New Jersey. To respond to the changing needs of the firm’s clients and the business community, Norris McLaughlin expanded its geographic reach by merging with like-minded firms in New York City (1999) and the Lehigh Valley in Pennsylvania (2009). As a result of this expansion, and with the resources of international law firm networks providing additional bench strength and service capability, Norris McLaughlin now delivers a total package of legal solutions to represent clients wherever they are and whatever their legal issues may be.

    Posted in: Banking & Financial Services, Bankruptcy & Creditors' Rights, Business Law, Construction Law, Environmental, Estate Planning & Administration, Litigation, Matrimonial & Family Law, News, Products Liability Defense, Solar Energy, Telecommunications, Workers’ Compensation—Pennsylvania Office | Tags: , , , , , , , , , , , ,

  • Nov 03, 2020Practical Tips: What Developers and Industrial Facility Operators Need to Know About New Jersey’s Environmental Justice Act

    On August 27, 2020, after decades of failed attempts, the New Jersey legislature passed landmark environmental justice legislation that requires the New Jersey Department of Environmental Protection (“NJDEP”) to consider potential environmental and public health effects when granting or renewing certain types of permits in overburdened communities. Governor Murphy signed the bill into law (the “Environmental Justice Act” or “the Act”) on September 18, 2020.

    What Does the Environmental Justice Act Attempt to Achieve, and What Do Developers or Industrial Facility Owners Need to Know in Order to Comply?

    The Act acknowledges and seeks to redress the disproportionate environmental and public health impacts of pollution on minority communities in New Jersey. Low-income communities and communities of color within the state have historically been subject to a disproportionate share of environmental and public health stressors. For example, the state reports that in 2017, approximately 12.9% of Black adults in New Jersey have been diagnosed with asthma. In contrast, only 8.2% of Caucasian adults carry a similar diagnosis.

    In an effort to address these historic conditions, the Act requires that any applicant seeking a new or renewed permit for certain types of operations submit an environmental justice impact statement and hold public hearings to address public health concerns at the local community level.

    Does the Act Act Apply to Your Operations?

    Critically, a “facility” is defined to include: any major source of air pollution (as defined in the federal Clean Air Act, 42 U.S.C. s 7401 et seq.); any resource recovery facility or incinerator; any sludge processing facility, combustor, or incinerator; any sewage treatment plant with a capacity of more than 50 million gallons per day; any transfer station or other solid waste facility, or recycling facilities accepting at least 100 tons of recyclable material per day; scrap metal facilities; certain types of landfill; or medical waste incinerators.

    Is Your Facility Located in an Overburdened Community?

    An “overburdened” community is any census block group in which: at least 35% of the households qualify as low-income households; at least 40% of the residents identify as minority or are affiliated with a state-recognized tribal community or at least 40% of the households have limited English proficiency.

    Communities will be classified as “overburdened” based on the results of the most recent United States Census. NJDEP will be required to publish and maintain a list of overburdened communities in the state by January 16, 2021, and that list must be updated at least every two years. NJDEP will also be required to notify a municipality if any part of the municipality is designated as an overburdened community.

    So, It Applies to Your Operations and You Are Located in an Overburdened Community. Now What?

    Any time you submit a permit application for a new or expanded facility or an application for the renewal of an existing facility’s major source permit, you must:

    1. Prepare an environmental justice impact statement
    2. Provide the impact statement to NJDEP, the local governing body, and the clerk of the municipality in which the overburdened community is located
    3. Conduct a public hearing in the overburdened community

    The environmental justice impact statement must assess the potential environmental and public health stressors associated with the facility, including any environmental conditions that could cause public health impacts like asthma, cancer, elevated blood lead levels, or cardiovascular disease.

    The permit applicant must publish the notice at least 60 days in advance of the public hearing. The notice must provide the date, time, and location of the hearing, and a brief summary of the environmental justice impact statement. You must also provide an address where community members can submit written comments to the permit applicant. The public hearing must be transcribed, and the transcript must be submitted to NJDEP for consideration along with the permit application.

    Without satisfying the foregoing requirements, NJDEP will not consider your permit application or renewal complete.

    When Does the Environmental Justice Act Take Effect?

    Governor Murphy signed the Act on September 18, 2020. Now, the ball is in NJDEP’s court: they must adopt rules and regulations in order to implement the Act. Those adoptions must be made pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. Therefore, the heightened requirements of the Act will not take effect until the proposed regulations go through the formal notice and comment process. Developers and industrial facility owners are encouraged to closely monitor the regulatory process in order to keep apprised of when the new requirements will take effect.

    This article has been written by Jessica L. Palmer, a Member of law firm Norris McLaughlin, P.A. If you have any questions about this or any related environmental matters, please feel free to contact her at jlpalmer@norris-law.com

    This article provides information to our clients and friends about current legal developments of general interest in the area of environmental law. The information contained in this article should not be construed as legal advice, and readers should not act upon such without professional counsel. Reprinted with permission from the November 2020 issue of COMMERCE Magazine

    Posted in: Environmental, Jessica L. Palmer |

  • Sep 04, 2020Due Diligence in New Jersey

    Jeffrey M. Casaletto, a Member of law firm Norris McLaughlin, P.A., will co-present the annual “Due Diligence in New Jersey” (Course 2018-044), hosted in association with the New Jersey Licensed Site Remediation Professional Association (LSRPA). This two-day program will be delivered through GoToWebinar.

    Due Diligence in New Jersey

    Jeff will be joined by Chemmie Sokolic, Due Diligence Expert, and Ben Alter, P.G., LSRP, of GZA GeoEnvironmental, Inc., who will discuss:

    • Types and components of environmental due diligence and when they should be performed
    • Types of environmental assessments in New Jersey and what they include, what they don’t, the protections they offer, and when they should be performed
      • ASTM Phase Environmental Site Assessment (Phase I)
      • Preliminary Assessment (PA)
    • Roles and legal liabilities of Licensed Site Remediation Professionals
    • Due diligence-related legal nuances commonly encountered during real estate transactions
    • Experience gained from case studies

    Due diligence is the process where environmental professionals, attorneys, engineers, real estate professionals, and developers, have the opportunity to assess risks and protect clients from unwarranted environmental liability in real estate and other business transactions. The focus of the “Due Diligence in New Jersey” course is to educate those professionals on the environmental risks and liabilities potentially associated with real estate transactions; how environmental due diligence can limit and offer protections against those risks and liabilities; and identify the various laws, regulations, standards, and guidance documents from where the due diligence activities are extracted.

    When: Wednesday, October 21, 2020 – Thursday, October 22, 2020

    12:45 p.m. – 5:00 p.m.

    Registration: lsrpa.org

    • $225 – LSRPA Members and Associate Members
    • $290 – Non-Members

    This course has been approved for 3.5 Regulatory and Technical CECs for LSRPs, 8.2 CLEs for attorneys, and 2 CPCs for professional engineers.

    About Jeff Casaletto

    Jeff represents and counsels clients in a wide range of industries, including commercial and residential developers, chemical and industrial manufacturers, and commercial business owners. He maintains a results-oriented approach to each environmental issue to achieve the client’s goals and objectives. Jeff assists clients in resolving issues related to site remediation, due diligence, solid and hazardous waste disposal, environmental regulatory compliance and solid waste utility licensing and approvals, permitting, Brownfields redevelopment, and cleanup cost recovery.

    The practice of environmental law often involves unique technical issues that require the expertise and advice of technical consultants. Jeff’s environmental engineering background enables him to better communicate and problem solves with environmental consultants and to apply a team approach to all issues, legal and technical. His ability to understand the technical aspects of his environmental matters provides clients with an opportunity to efficiently resolve their environmental issues.

    Jeff has obtained solid waste approvals for haulers, brokers, and solid waste facilities and recycling facilities for solid waste utilities just starting up or continuing to grow. He has experience handling matters involving CERCLA, RCRA, EPCRA, and OPA. Jeff has negotiated removal orders, EPCRA/OPA settlements, cost recovery for removal and remedial actions, Remedial Investigation/Feasibility Study Settlements, and Remedial Design/Remedial Action Settlements.

    Posted in: Environmental, Events, Jeffrey M. Casaletto, Real Estate & Finance | Tags: , ,

  • Jul 17, 2020Remedial Action Permit Applications and Response Action Outcomes

    Jeffrey M. Casaletto, a Member of law firm Norris McLaughlin, P.A., will co-present the webinar, “Remedial Action Permit Applications and Response Action Outcomes,” with Phil Brilliant, CHMM, LSRP, founder of Brilliant Environmental Services, LLC, for the Continuing Professional Education Services, LLC.

    Remedial Action Permit Applications and Response Action Outcomes

    This program is available for environmental professionals, engineers, attorneys, financial institutions, and local regulators, such as mayors, health inspectors, and building officials. Discussion topics will include:

    • Soil and Groundwater Permits used by the LSRP in the Site Remediation Program
    • Soil and groundwater permits issued by NJDEP
    • Issues raised during the permitting process by NJDEP, LSRP, and clients
      • Obligations of all parties
      • Common errors and corrections
    • Remediation funding sources and financial assurance
    • Proper preparation of the RAO document based upon the issuance of Unrestrictive or Restrictive and Area of Concern or Entire Site
      • Inserts and notices
      • Proper use when it comes to on-site versus off-site remediation requirements
    • The legal aspect of an LSRPs obligation and responsibilities
      • How an LSRP amends an RAO
      • The interaction between NJDEP, client, and counsel following the issuance of an RAO

    When: Wednesday, July 29, 2020

    8:30 a.m. – 12:30 p.m.

    Registration: cpesnj.com/

    • General Registration: $215.00
    • LSRPA, CIANJ, or Montclair State Alumni: $170.00
    • Multiple Registrations From the Same Company: $155.00

    3.5 Regulatory NJ LSRP CECs, 4.2 CLEs, 3.5 CPCs, and 3.5 CEs will be earned.

    About Jeff Casaletto

    Jeff represents and counsels clients in a wide range of industries, including commercial and residential developers, chemical and industrial manufacturers, and commercial business owners. He maintains a results-oriented approach to each environmental issue to achieve the client’s goals and objectives. Jeff assists clients in resolving issues related to site remediation, due diligence, solid and hazardous waste disposal, environmental regulatory compliance and solid waste utility licensing and approvals, permitting, Brownfields redevelopment, and cleanup cost recovery.

    The practice of environmental law often involves unique technical issues that require the expertise and advice of technical consultants. Jeff’s environmental engineering background enables him to better communicate and problem-solve with environmental consultants and to apply a team approach to all issues, legal and technical. His ability to understand the technical aspects of his environmental matters provides clients with an opportunity to efficiently resolve their environmental issues.

    Jeff has experience handling matters involving CERCLA, RCRA, EPCRA, and OPA. He has negotiated removal orders, EPCRA/OPA settlements, cost recovery for removal and remedial actions, Remedial Investigation/Feasibility Study Settlements, and Remedial Design/Remedial Action Settlements. Jeff has also obtained solid waste approvals for haulers, brokers, and solid waste facilities and recycling facilities for solid waste utilities just starting up or continuing to grow.

    Posted in: Environmental, Events, Jeffrey M. Casaletto, Real Estate & Finance | Tags: , ,

  • Jul 17, 2020New Jersey Real Estate & Corporate Transactions: The Role of the LSRP and the Attorney

    Jeffrey M. Casaletto, a Member of law firm Norris McLaughlin, P.A., will co-present the webinar, “New Jersey Real Estate & Corporate Transactions: The Role of the LSRP and the Attorney,” with Phil Brilliant, CHMM, LSRP, founder of Brilliant Environmental Services, LLC, for the Continuing Professional Education Services, LLC.

    The Role of the LSRP and the Attorney

    This program is available for licensed site remediation professionals, environmental professionals, environmental attorneys, real estate attorneys, corporate attorneys, in-house counsel, or anyone who wants to learn about how environmental issues might affect their real estate and corporate transactions in the state of New Jersey. Discussion topics will include:

    • What due diligence to perform in your purchase and sale transactions
    • How to identify certain environmental issues and learn that commonly arise
    • Methods for dealing with and navigating through (or around) issues to close a deal
    • How the LSRP’s code of conduct and professional obligations work within the context of a deal
    • Engaging the LSRP or the environmental professional
    • How environmental professionals facilitate transactions
    • The nuances of the Industrial Site Recovery Act and the Site Remediation Reform Act
    • Practice tips for ISRA compliance, performing due diligence, and allocating responsibility for addressing environmental issues

    When: Wednesday, July 22, 2020

    8:30 – 11:00 a.m.

    Registration: cpesnj.com/

    • General Registration: $115.00
    • LSRPA, CIANJ, or Montclair State Alumni: $99.00
    • Multiple Registrations From the Same Company: $85.00

    1 Regulatory NJ LSRP CEC, 2.4 CLEs, 2 CPCs, and 2 CEs will be earned.

    About Jeff Casaletto

    Jeff represents and counsels clients in a wide range of industries, including commercial and residential developers, chemical and industrial manufacturers, and commercial business owners. He maintains a results-oriented approach to each environmental issue to achieve the client’s goals and objectives. Jeff assists clients in resolving issues related to site remediation, due diligence, solid and hazardous waste disposal, environmental regulatory compliance and solid waste utility licensing and approvals, permitting, Brownfields redevelopment, and cleanup cost recovery.

    The practice of environmental law often involves unique technical issues that require the expertise and advice of technical consultants. Jeff’s environmental engineering background enables him to better communicate and problem-solve with environmental consultants and to apply a team approach to all issues, legal and technical. His ability to understand the technical aspects of his environmental matters provides clients with an opportunity to efficiently resolve their environmental issues.

    Jeff has experience handling matters involving CERCLA, RCRA, EPCRA, and OPA. He has negotiated removal orders, EPCRA/OPA settlements, cost recovery for removal and remedial actions, Remedial Investigation/Feasibility Study Settlements, and Remedial Design/Remedial Action Settlements. Jeff has also obtained solid waste approvals for haulers, brokers, and solid waste facilities and recycling facilities for solid waste utilities just starting up or continuing to grow.

    Posted in: Environmental, Events, Jeffrey M. Casaletto, Real Estate & Finance | Tags: , ,

  • 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 |

  • Feb 07, 2020Martha Donovan and Jeff Casaletto Speak at LSRPA New Jersey Site Remediation Conference

    Martha N. Donovan and Jeffrey M. Casaletto, Members of law firm Norris McLaughlin, P.A., presented “NJSRPLB Rules: What an LSRP Needs to Know” at the Licensed Site Remediation Professionals Association (LSRPA) New Jersey Site Remediation Conference at Hyatt Regency in New Brunswick on February 5.

    “I enjoyed the interaction with the LSRPs about issues that may arise during their careers outside the context of specific client matters,” said Donovan.

    Casaletto added, “It has been a pleasure speaking at the events and courses offered by the LSRPA over the past several years, and this year’s conference was yet another high-quality event put together by the LSRPA.”

    About the New Jersey Site Remediation Conference

    Donovan and Casaletto spoke on understanding the board regulations by breaking down the general provisions, audit procedures, rules of professional conduct, disciplinary proceedings, and adjudicatory proceedings. The presentation also offered an opportunity for attendees to ask related questions in an open discussion with the panelists.

    The two-day conference, February 4-5, also addressed topics such as ethics, exam preparation, waste classification and management, data collection and analysis, land use law and regulations, in-situ remediation, PFAs, the New Jersey Brownfields program, understanding risks and liabilities, borehole geophysical logging, variances, heavy metals, and project management. For more information and similar upcoming events, visit the NJLSRPA website at lsrpa.org.

    About Martha Donovan

    A resident of West Windsor, Donovan, Co-Chair of the Norris McLaughlin Environmental Law Practice Group, 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 insurance coverage matters.

    Donovan has represented clients in administrative and judicial proceedings before state and federal courts and agencies, including the New Jersey Department of Environmental Protection and the Environmental Protection Agency. She regularly counsels clients on a variety of environmental issues, including ISRA compliance, lender liability, underground storage tank laws, and permits and approvals for hazardous waste storage, transportation and disposal. 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.

    Donovan has authored articles and has made presentations to various trade groups and associations on issues ranging from lender liability under Superfund to the availability of insurance coverage for various aspects of business-related accidents.

    Donovan is a member of the New Jersey State and American Bar Associations and the Society of Women Environmental Professionals. 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. Donovan has been selected for inclusion on the list of Super Lawyers and Best Lawyers for many years and is ranked as Band 1 in Chambers.

    About Jeff Casaletto

    A resident of Raritan Township, Casaletto concentrates his practice on environmental law. He represents and counsels clients in a wide range of industries, including commercial and residential developers, chemical and industrial manufacturers, and commercial business owners. He maintains a results-oriented approach to each environmental issue to achieve the client’s goals and objectives. Casaletto assists clients in resolving issues related to New Jersey site remediation, due diligence, solid and hazardous waste disposal, solid waste utilities, regulatory compliance, permitting, Brownfields redevelopment, and cleanup cost recovery. He also has experience handling matters involving CERCLA, RCRA, EPCRA, and OPA. He has negotiated removal orders, EPCRA/OPA settlements, and cost recovery for removal and remedial actions.

    Prior to joining Norris McLaughlin, Casaletto was Assistant Regional Counsel and the 2002 Michael F. Vaccaro Honors Fellowship Attorney at the U.S. EPA Region III, where he focused on Superfund matters. Before that, he was a judiciary law clerk for the Honorable Vincent LeBlon and the Honorable Dennis V. Nieves in Middlesex County, New Jersey. While attending law school, he was a legal intern at the Pace Environmental Litigation Clinic and at the Environmental Defense Section of the U.S. Department of Justice, Environment and Natural Resources Division.

    Casaletto served as an elected councilman for the Borough of Stockton. During his term, he was appointed by Mayor Stephen Giocondo to the Stockton Planning Board as Council Liaison and to several committees for the community of Stockton, including finance, personnel, and water and sewer.

    Casaletto earned his J.D. from The Elisabeth Haub School of Law at Pace University, formerly known as Pace Law School, cum laude, and his M. Eng. degree in Environmental Engineering and B.S. in Civil Engineering from The Pennsylvania State University.

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