New case law suggests that environmental policies may be needed to fill widening gaps in the primary insurance held by most businesses (i.e., Commercial General Liability “CGL” policies). CGL policies typically contain a “pollution exclusion” that excludes coverage for losses relating to “pollutants,” and the definition of pollutants in standard CGL policies is extremely broad. In fact, a federal court of appeals recently held that storm water runoff qualifies as a pollutant, and, thus, no coverage exists under a CGL policy for damage relating to such runoff.
The litigation between the State of New Jersey and ExxonMobil over natural resource damages allegedly caused by former Exxon oil refineries in Bayonne and Linden appears to have come to a close earlier this year when the New Jersey Supreme Court rejected petitions filed by third parties challenging the State’s settlement of its claims against Exxon.
Over the past few years, a number of state agencies have begun to take steps to address emerging contaminants like per- and -polyfluororalkyl substances (“PFAS”) and 1,4 dioxane. Just this past January, we reported on our blog that the New Jersey Department of Environmental Protection (“NJDEP”) set the most stringent limits in the country for perfluorooctanoic acid (“PFOA”) and perfluorononanoic acid (“PFNA”) in drinking water and adopted a regulation that added PFNA to the List of Hazardous Substances under the New Jersey Spill Compensation and Control Act (See our January 30, 2018 Blog Article – NJDEP Takes Further Step In Regulating Emerging Contaminants).
Earlier this year, New Jersey passed legislation (Assembly Bill 1954) that changed the availability of certain funding to public and private entities under the Hazardous Discharge Site Remediation Fund (“HDSRF” or the “Fund”). The HDSRF program provides grants and loans to public entities and certain private entities that require financial assistance to investigate and remediate suspected or known contaminated sites.
Riker Danzig’s Environmental Practice has again been honored with a Band 1 ranking in the Chambers USA Guide this year. Our group has been consistently ranked in the top tiers of Chambers USA since the publication’s inception and in “Band 1” since 2010. Many of our environmental attorneys are also recognized individually in the Guide.
New Jersey’s environmental and energy policies are headed in a precise, new direction under Governor Phil Murphy. In fact, following his election in November, Governor Murphy set a series of policy goals, which include: (1) enhancing usage of clean energy; (2) combating climate change; (3) addressing environmental hazards that disproportionately impact low-income communities and communities of color; and (4) safeguarding New Jersey’s natural resources.
During the Obama Administration, the United States Environmental Protection Agency (“USEPA”) revised the Clean Water Act definition of Waters of the United States (“WOTUS Rule”) to broaden (to some overly so) federal protection of certain waterbodies. The WOTUS Rule sparked numerous lawsuits in a number of federal District Courts and Courts of Appeals.
In November 2017, the New Jersey Department of Environmental Protection (“NJDEP”) set the lowest limits in the country for perfluorooctanoic acid (“PFOA”) and perfluorononanoic acid (“PFNA”) in drinking water (See our November 8, 2017 Blog Article – NJDEP to Adopt Strict Standards for PFOA and PFNA in Drinking Water).
In a case before the United States District Court for the District of New Jersey, the New Jersey Department of Environmental Protection (“NJDEP”) seeks to recover natural resource damages (“NRD”) from a number of gas station defendants (the “Gas Station Defendants”) for the alleged discharge of Methyl Tertiary Butyl Ether (“MTBE”) into the groundwater at five gas station sites in northern and central New Jersey. NJDEP v. Amerada Hess Corp., Docket No. 15-6468 (Nov. 1, 2017).
The Appellate Division of the Superior Court of New Jersey recently upheld a provision in an environmental services contract that reduced the time to bring a claim under the contract to one year. Elar Realty Co. v. Environmental Risk Limited, Docket No. A-2201-15 (N.J. App. Div. Oct. 11, 2017). As a result, the property owner was unable to bring a claim against its environmental contractor for deficient work in performing remediation.