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Environmental Law

In a state noted for its strict and pace-setting environmental laws, Riker Danzig’s Environmental Law Group is among...

Environmental Update - January 2023

January 5, 2023
The following articles were originally published as blog posts in our Environmental Law Blog.  Some content in this aggregate Update may have been altered from the original blog posts.  To subscribe to our blog, please click here.
 

NJDEP Adopts Interim Soil Remediation Standards for PFAS

The New Jersey Department of Environmental Protection (“NJDEP”) published interim soil and soil leachate remediation standards for PFNA, PFOA, PFOS, and GenX on October 17th. These interim remediation standards are effective immediately upon publication. PFNA, PFOA, PFOS, and GenX belong to a group of man-made chemicals called per- and polyfluoroalkyl substances (“PFAS”) that do not readily break down in the environment. For more than a decade, scientists have been studying the health effects associated with PFAS, and these emerging contaminants are subject to increasing regulation in jurisdictions across the country.

New Jersey Pioneering PFAS Remediation Standards

New Jersey was the first state to adopt Maximum Contaminant Levels for PFAS that require statewide testing of drinking water systems for PFOA and PFNA. New Jersey also has promulgated Ground Water Quality Standards requiring investigation and remediation of PFOA, PFOS and PFNA in groundwater. With the adoption of the interim soil remediation standards, New Jersey becomes one of a handful of states to develop PFAS remediation standards for soil. The U.S. Environmental Protection Agency has not yet promulgated soil standards for PFAS.

NJDEP adopted interim remediation standards for PFNA, PFOA, PFOS and GenX for the Ingestion-Dermal Exposure Pathway. The Department also adopted standards for the Migration to Ground Water Exposure Pathway (both Soil and Soil Leachate) for each of these contaminants, except GenX, which does not have a standard for that pathway. Since generic Soil Remediation Standards for Migration to Ground Water could not be calculated, the Soil Remediation Standards for Migration to Ground Water are to be calculated on an Area of Concern (“AOC”) and site-specific basis utilizing the Synthetic Precipitation Leaching Procedure (“SPLP”). SPLP is already utilized in New Jersey to develop a site-specific impact to groundwater and soil remediation standards for contaminants other than PFAS. In the absence of interim standards for GenX for the Migration to Groundwater Pathway, the Department recommended that remediating parties delineate GenX to the laboratory reporting limit at this time.

The specific standards are listed below:

 

Potential Impacts of the Soil Standards

Even before the interim soil standards were adopted, Licensed Site Remediation Professionals (“LSRPs”) already had been required to perform an evaluation of whether PFAS have been used at a site. Where the evaluation documents the potential for the use or discharge of PFAS at the site, further investigation may be necessary.

Riker Danzig’s environmental attorneys will continue to monitor and report on these new developments. For more information, please contact any attorney in the Firm’s Environmental Practice Group.

NJDEP Proposes Significant Changes to Inland Flood Hazard Area Regulations

The New Jersey Department of Environmental Protection (“NJDEP”) has announced that it will propose an Inland Flood Protection Rule to revise its flood hazard and stormwater management rules in an effort to mitigate the impacts of increased flooding and stormwater runoff caused by climate change. With the proposal, NJDEP plans to replace older precipitation estimates with more recent data that considers current and projected future increases in rainfall and stormwater runoff caused by more frequent and severe storm events. For now, these rule changes affect only fluvial flood areas (i.e., areas surrounding non-tidal rivers and streams). However, NJDEP is planning a more comprehensive package of revisions to the State’s land use rules as part of its New Jersey Protecting Against Climate Threats (“NJPACT”) initiative, which is anticipated to propose additional new rules in response to coastal flooding risks.

Although NJDEP once contemplated adopting this rule as an emergency rule with immediate effect, the Department now is following the normal rulemaking process and published the proposal in the New Jersey Register on December 5, 2022. A virtual public hearing is scheduled for January 11, 2023, and a 60-day comment period will run through February 3, 2023. Under the typical rulemaking process, the proposed rule will not be adopted and become effective until after the Department responds to these public comments. The proposal follows a series of public engagement sessions with stakeholders, including developers, municipalities and environmental groups, wherein members of the regulated community voiced their concerns with adoption of the Inland Flood Protection Rule as an emergency rule.

The rule proposal, a pre-publication copy of which is provided here (Inland Flood Protection Rule Proposal), contains the following key components:

  • The fluvial (non-tidal) Design Flood Elevation (which dictates the elevation required for habitable first floors) will be raised by two feet (2 ft.) in comparison to the NJDEP’s current flood maps and by three feet (3 ft.) in comparison to current FEMA maps.
  • Applicants will be required to use future projected precipitation data (year 2100 projections) when calculating flood elevations.
  • Stormwater Best Management Practices (“BMPs”) designs will need to be based on the revised and future projected precipitation data.
  • Certain existing methods for calculating stormwater amounts/impacts (i.e., Rational and Modified Rational methods) will no longer be allowed.
  • NJDEP flood hazard permits will need to conform to NJ Uniform Construction Code standards and meet or exceed minimum FEMA National Flood Insurance Program requirements.

These rule changes will impose significant new development restrictions, conditions and constraints for many projects. By raising the Design Flood Elevation, large areas of New Jersey that are not currently regulated soon will fall within the flood hazard area and will need an NJDEP permit for development and other regulated activity. This elevation increase may impact the financial feasibility of projects by imposing new permitting costs and development restrictions, and it also may create new difficulties with access, since current roadways and other access points may be below the soon-to-be-required elevation. In addition, the changed BMPs for stormwater management design likely will result in larger required stormwater retention areas and other management systems that can reduce the developable area of a site. Furthermore, existing NJDEP-issued flood hazard area verifications (which confirm the existing flood hazard area limits and design flood elevations), if calculated based on older data, may no longer be valid.

In consideration of the significant impacts of this proposed rule and the fact that many projects, including those currently not subject to regulation, already are or are soon to be underway, NJDEP is proposing that the new requirements apply only to new or reconstructed development. Also, any permit application deemed administratively complete before the rule is adopted will not be subject to the proposed changes.

Although NJDEP has made this “grandfathering” accommodation, it is likely that the regulated community will make comments to the rule proposal to request a delay to the adoption and provide further relief under the grandfathering and hardship provisions so that those affected by the rule have more time to consider the impact of and plan for these rule changes.

Riker Danzig’s environmental attorneys will continue to monitor and report on these new developments as well as NJDEP’s larger NJPACT initiative. For more information or to discuss how the proposed Inland Flood Protection Rule may affect your project or property, please contact Jaan Haus at jhaus@riker.com or any attorney in our Environmental Practice Group.

 

No Discharge, New Problem: NJDEP Files Another Spill Act Suit Against Product Manufacturer Who Was Not a Discharger

NJDEP continues to assert a novel theory of Spill Act liability in a suit against the manufacturer of polychlorinated biphenyls (“PCBs”). On August 4th, NJDEP filed a lawsuit in state court against the successors of “old Monsanto,” which had been the country’s sole producer of PCBs, the once widely used chemical that was banned under the Toxic Substances Control Act in the 1970’s. The State seeks recovery of remediation costs and damages incurred by the Spill Fund, as well as natural resource damages (“NRD”), arising from a former Monsanto facility in Gloucester County and, significantly, from all discharges of PCBs that occurred throughout the entire state. New Jersey joins several other states that, through plaintiff-side private firms engaged on a contingency basis, have sued Monsanto entities for statewide releases of PCBs. In the last few months, Ohio and New Hampshire have obtained settlements of $80 million and $25 million, respectively, in such cases. NJDEP’s new lawsuit has a New Jersey-specific twist—the use of the Spill Act to impose liability on a party that manufactured and sold, but did not actually discharge, a hazardous substance. Both private plaintiffs and the State have had initial success pursuing this novel theory of Spill Act liability in per- and polyfluoroalkyl substances (“PFAS”) litigation, and now NJDEP seeks to extend it to PCBs.  Favorable rulings for NJDEP in the new Monsanto case also may have significant repercussions for site remediation in New Jersey, as it could open the door for new contribution claims at any site impacted by PCBs.

Our May 4th article discussed two pending cases in which Spill Act claims survived motions to dismiss brought by 3M, which manufactured PFAS and sold them to New Jersey industrial facilities, but never discharged PFAS in New Jersey. PCBs are a logical candidate for this novel extension of Spill Act liability to non-discharging manufacturers. Both PCBs and PFAS were exclusively manufactured by one company—NJDEP’s complaint alleges that Monsanto manufactured 99% or more of all PCBs sold in the U.S., and 3M was the sole supplier of PFAS chemicals. These unusual facts relieve plaintiffs of the difficult burden of having to establish which manufacturer long ago supplied the chemicals that eventually were discharged into the environment, a burden the plaintiff otherwise would bear in a Spill Act claim relating to chemicals that historically were manufactured by many different firms.

In NJDEP’s new case and any other Spill Act cases filed against Monsanto, it appears that New Jersey state courts, rather than federal courts, will decide the scope of Spill Act liability of non-discharging manufacturers. This is because one of the defendants named in the State’s complaint—Pharmacia LLC—is alleged to have its principal place of business in New Jersey, which if true would destroy federal court diversity jurisdiction. In contrast, because of its location outside of New Jersey, 3M is able to remove similar Spill Act claims against it for PFAS to federal court.

Absent a quick settlement with Monsanto, the New Jersey state appellate courts that have the ultimate authority to interpret the Spill Act under state law may decide in this case whether the Spill Act permits claims against manufacturers like Monsanto and 3M and, if it does, what a plaintiff must prove to succeed on such a claim. If the courts recognize any Spill Act claim against a non-discharging manufacturer, perhaps the most significant issue in this new class of claims will be the level of culpability that could make a non-discharging manufacturer “in any way responsible” for a hazardous substance under the Spill Act. Put another way, will a manufacturer and seller of a product be strictly liable under the Spill Act as long as the plaintiff can demonstrate that a subsequent purchaser of the product discharged it in New Jersey (i.e., the defendant’s product caused the remediation costs), or will some additional showing of fault be required on top of a showing of causation?  Although the text of the Spill Act explicitly imposes strict, joint, and several liability regardless of fault, see N.J.S.A. 58:10-23.11g.c.(1), NJDEP’s complaint against Monsanto suggests that some showing of fault should be required for a product manufacturer to be liable under the Spill Act. Specifically, the Spill Act count of the recently-filed complaint alleges that (1) Monsanto knew that discharges of PCBs were “inevitabl[e]” during their “ordinary, intended use;” (2) Monsanto knew that PCBs were toxic; (3) Monsanto failed to warn its customers about the risk of contamination; and (4) Monsanto advised its customers to dispose of PCBs in ways that caused discharges to the environment. If courts are willing to entertain at all a Spill Act claim against a manufacturer that is not the discharger, they may require the plaintiff to prove that the defendant was at fault (e.g., the defendant knew about and did not mitigate the risk of discharges to the environment) in addition to proving causation, which would be consistent with the theory espoused in the complaint.

Other private parties who have incurred remediation costs for PCBs could have Spill Act claims against the Monsanto entities if NJDEP’s claim in its new lawsuit succeeds. Notably, there is no statute of limitations for Spill Act contribution claims following the New Jersey Supreme Court’s 2015 Morristown Associates decision, so there could be new claims for long ago remediation costs. However, Monsanto would not be without defenses based on the passage of time. Courts have held that laches may be a defense to a Spill Act claim. If there was prior litigation over remediation costs at a site, Monsanto might also have a defense under the entire controversy doctrine if it was prejudiced by not being joined in the earlier litigation. NJDEP’s new case against Monsanto, as well as the already pending cases against 3M regarding PFAS, may create a new frontier of Spill Act liability that all parties engaged in New Jersey site remediation should follow closely.

For more information, please contact the author Michael Kettler at mkettler@riker.com or any attorney in our Environmental Practice Group.

NJDEP Issues Proposed Regulations to Implement Environmental Justice Law

With the issuance of proposed regulations, businesses seeking to comply with New Jersey’s Environmental Justice Law just received more guidance from the New Jersey Department of Environmental Protection (“NJDEP”).

That is, the NJDEP has proposed regulations that, when ultimately adopted, would fully implement New Jersey’s first of its kind Environmental Justice Law.

The underlying law contained guiding principles but left the essential and somewhat controversial details to the implementing regulations. As a result, the proposed regulations are in themselves groundbreaking and likely to be thoroughly scrutinized and debated.

Background Information

As has been widely reported, New Jersey’s Environmental Justice Law authorizes the New Jersey Department of Environmental Protection to deny or condition permits for certain facilities that would have a disproportionate impact on an overburdened community.

The authority to require an environmental justice review and to deny or condition permits, however, was to go into effect only when regulations were proposed and adopted, but the Department through Administrative Order 2021-25 has been using existing authority to implement these aspects of the Environmental Justice Law since November 2021.

Given that the law provides a broad framework and does not address the many nuanced circumstances that can arise, the Department, businesses, and community members have faced difficulties attempting to comply with the Environmental Justice Law under the Administrative Order.

The newly proposed regulations, which are the result of six sets of extensive stakeholder meetings, should provide additional clarity to these stakeholders. The public comment period on the proposed rules ended on September 4, 2022. NJDEP representatives stated that the regulations would be adopted before the end of 2022, but industry groups now anticipate that NJDEP will adopt them in January or early 2023. As noted above, the requirements of the EJ Law become effective when these regulations are eventually adopted.

Applicability of New Jersey EJ Requirements

The EJ Law, and its proposed implementing regulations, as well as the NJDEP’s Administrative Order 2021-25, apply to facilities:

  • Within eight (8) different categories, including major sources of air pollution (i.e., facilities with Title V air permits, such as power plants); certain solid waste facilities, landfills and incinerators; large-scale sewage treatment facilities; and scrap metal and large-scale recycling facilities;
  • Located in overburdened communities, as defined by the State of New Jersey based on certain socio-economic factors; and
  • Seeking a wide array of environmental permits associated with a new facility, an expansion of an existing facility, or a renewal of a major source permit.

EJ Requirements under Administrative Order

Under Administrative Order 2021-25 and to the extent consistent with applicable law:

  • Public comment periods are to be no less than sixty (60) days, and shall be extended to ninety (90) days upon request by a member of the overburdened community.
  • The applicant also is required to hold a public hearing and provide public notice of the comment period and the public hearing.
  • If comments are received from the public, the applicant further is required to respond to and address the concerns raised by the public.
  • An Environmental Justice Impact Statement (“EJIS”) is not required, but the NJDEP reserves the right to require the applicant to conduct additional analyses of concerns raised during public comment. The NJDEP also reserves the right to impose special conditions on issued permits as necessary to avoid or minimize environmental or public health stressors upon the overburdened community to the maximum extent allowable by existing law.

EJ Requirements under EJ Law and Regulations

Pursuant to the EJ Law and the regulations proposed by NJDEP:

  • The applicant for a permit subject to the EJ Law prepares an EJIS using screening data provided by and/or available from the NJDEP. Depending on certain factors, the EJIS may need to include additional analyses and/or proposed permit conditions in accordance with the EJ Law and the proposed regulations.
  • Upon NJDEP’s authorization that the EJIS is administratively complete, the applicant proceeds with the public participation process set forth in the EJ Law and the regulations, including providing a comment period, holding a public hearing in the overburdened community and responding to public comment.
  • Upon completion of the public participation process, the NJDEP would then consider the EJIS, other provided documentation and any other information deemed relevant by the NJDEP, and issue a decision on the permit application. Under certain circumstances, NJDEP may retain independent experts to evaluate the analyses and information, at the applicant’s cost.
  • Where the facility can avoid a disproportionate impact to the overburdened community, the NJDEP would authorize the applicant to proceed and shall impose conditions necessary to ensure a disproportionate impact is avoided.
  • Where the facility cannot avoid a disproportionate impact, the NJDEP would deny an application for a new facility, unless it demonstrates it will serve a compelling public interest in the overburdened community. For new facilities that serve a compelling public interest, and for expanded facilities and major source renewals that cannot avoid a disproportionate impact, the NJDEP would issue a permit subject to appropriate conditions to address facility impacts to environmental and public health stressors.
  • If the NJDEP determines that permit conditions are appropriate, different regulatory standards and procedures will apply to a new facility, an expanded facility, or a major source permit renewal.
  • Applicants for new and expanded major source facilities are required to propose available control technologies in accordance with strict procedures. In general, the facility must propose the most effective control technology (defined as Localized Impact Control Technology based on State of the Art), unless the control technology is infeasible in accordance with certain exceptions. Cost is not an appropriate consideration for new and expanded major source facilities. All other potential stressors are subject to conditions according to a hierarchy that has avoidance of onsite stressors as its highest priority, followed by onsite mitigation of stressors, offsite mitigation of stressors impacted by the facility, offsite mitigation of stressors other than those impacted by the facility, and offsite measures that provide a net environmental benefit.
  • Applicants for major source permit renewals are required to conduct a risk assessment and evaluate available control technologies in accordance with strict procedures. Cost can be considered in determining whether a control technology is feasible for a major source permit renewal. All other potential stressors are subject to conditions according to a hierarchy that includes only avoidance of onsite stressors and onsite mitigation of stressors, and not any offsite mitigation.

Please keep in mind, however, that the foregoing requirements only go into effect upon adoption of the regulations. It is possible that aspects of the rule proposal may change. In the meantime, the procedures set forth in Administrative Order 2021-25 remain in effect.

Conclusion

Facilities should consider the impact of the EJ Law and proposed regulations on current and future actions in consultation with legal and technical professionals to develop a strategy for compliance.

Our attorneys will be closely monitoring the public process associated with the proposed regulations. For more information, please contact any attorney in our Environmental Practice Group.

Access Denied: Court Prevents Use of Access Statute to Identify Off-Site Discharger

Remediating parties often need to enter onto another’s property to investigate and remediate contamination that has migrated from the site of a discharge. Recognizing this reality, the Legislature enacted N.J.S.A. 58:10B-16 (the “Access Statute”) authorizing a remediating party to seek a court order for access when the property owner does not voluntarily permit access. The Appellate Division’s September 23rd decision in Solvay Specialty Polymers USA LLC v. Paulsboro Refining Company LLC interpreting the Access Statute may portend a more difficult future for parties seeking access under the statute. Specifically, the court refused to allow a remediating party to access an off-site property for the purpose of showing that contamination from that property was contributing to an allegedly commingled plume of groundwater contamination.

The Appellate Division reversed a lower court ruling that had granted Solvay access to the Paulsboro Refining Co. LLC (“PRC”) refinery property to conduct environmental sampling to delineate groundwater contamination from per-and polyfluoroalkyl substances (PFAS). In overturning the trial court’s decision, the Appellate Division narrowly construed the Access Statute, holding the trial court erred when it concluded that access to the PRC property was “reasonable and necessary” for Solvay’s PFAS investigation. Notably, PRC’s property is located in another municipality and approximately two miles away from the Solvay facility. Although Solvay is subject to an NJDEP directive relating to PFAS contamination from its facility, the court noted that the directive did not identify any party other than Solvay as a possible source of PFAS contamination. Thus, according to the court, the directive did not deputize Solvay with the Department’s authority to investigate whether other parties were off-site sources of contamination.

The Access Statute authorizes a remediating party to seek a court order for access if, after making a good faith effort, it is unable to reach an agreement with the owner to obtain access to the off-site property. The court will issue an order for access if it determines that either (1) a reasonable possibility exists that contamination has migrated to the off-site property, or (2) access to the property is reasonable and necessary to remediate the contamination. An applicable NJDEP oversight document for the investigation or remediation activities creates a presumption in favor of access. While the ability to obtain access via a court order has long been a vital tool for remediating parties, there is a dearth of case law interpreting the Access Statute. Thus, the opinion in Solvay is instructive for determining when access to an off-site property will be considered “reasonable and necessary” under the Access Statute.

The Appellate Division narrowly construed the Access Statute in denying Solvay’s access request. Because Solvay denied that any PFAS contamination had migrated from its facility to PRC’s refinery, the court only analyzed whether access to the property was warranted under the second prong of the Access Statute—whether it was “reasonable and necessary” for Solvay to access the PRC facility to investigate or remediate the contamination for which Solvay was responsible.

The court held that it was not reasonable and necessary for Solvay to show that PFAS contamination from the PRC facility was commingled with contamination that NJDEP’s directive had attributed to Solvay. Solvay could comply with the NJDEP directive without “invading” PRC’s refinery to conduct “intrusive environmental sampling.” The court rejected Solvay’s contention that, under the NJDEP regulation governing investigation of off-site sources of contamination (N.J.A.C. 7:26E-3.9), Solvay had a duty to identify other particular sources of off-site contamination. Rather, the Appellate Division found that Solvay had satisfied its obligations under NJDEP’s regulations and the directive when it documented the possibility of PFAS contamination from a source other than the Solvay facility, without necessarily proving the identity of the off-site source. Relying on an NJDEP technical guidance document, the court held that where sufficient evidence of off-site contamination in a commingled plume exists, but the source of the contamination has not been identified, it is the Department, and not the remediating party or a court adjudicating a claim under the Access Statute, that determines whether further investigation is warranted.

The relative distance of PRC’s refinery from the Solvay facility also seems to have been a contributing factor in the Appellate Division’s holding that it was not “reasonable and necessary” for Solvay to conduct sampling on the PRC property. Although most access requests under the Access Statute usually pertain to adjacent or nearby properties, it would be a mistake to construe Solvay as categorically precluding access to distant properties. With the increasing need to investigate PFAS, which quickly migrate through the environment and resist natural degradation, remediating parties will have a legitimate need to investigate more distant sites.

The court was mindful that parties remediating a commingled plume of groundwater contamination from multiple sources need a way to gather information about other sites and parties that may have contributed to the contamination, even if the Access Statute is not the proper vehicle. Thus, the court noted that, during the pendency of this appeal, Solvay had filed a contribution action under the Spill Act against PRC concerning the alleged migration of PFAS from its refinery to areas that Solvay was remediating. The Appellate Division emphasized that its decision did not preclude Solvay from conducting further discovery with respect to the migration in that action, but refused to give its imprimatur to using the Access Statute as a pre-discovery tool to gather information in support of a contribution action.

Parties seeking access to conduct environmental investigation or remediation, and parties from whom such access is sought, should take note of the Solvay decision—a rare instance when an appellate court construed the Access Statute—when negotiating or perhaps litigating over site access. Going forward, courts likely will look skeptically on access requests that seem motivated by a desire to obtain data to use against a potential litigation adversary, rather than to complete a remediation project.

For more information, please contact the author Michael Spinello at mspinello@riker.com or any attorney in our Environmental Practice Group.

A New Emphasis on MARPOL is a 2023 World Maritime Theme

An example of its environmental impact closer to home

Maritime shipping emissions account for about 3% of the global carbon dioxide output, roughly the same as aviation and, according to the World Economic Forum, if shipping was a country, it would be the sixth-largest polluting country in the world. In an attempt to combat this impact, the International Maritime Organization ("IMO"), a specialized agency of the United Nations, has set a goal to decarbonize the industry as soon as possible before the end of the century. This priority is exemplified by the IMO’s decision to make “MARPOL at 50 – Our Commitment Goes On” its 2023 World Maritime Theme. Under MARPOL the IMO already has begun to adopt measures to reduce emissions of greenhouse gases from international shipping. The 2023 theme can be expected to promote further discussion around the next phase of work to reduce the environmental impacts of shipping.

Although ship decarbonization targets are a relatively new maritime endeavor, the enforcement mechanisms to combat marine pollution are not new. To address marine pollution, nearly 50 years ago, an international conference was held in 1973, which resulted in the creation of the International Convention for the Prevention of Pollution from Ships, known as MARPOL. Later amended by the 1978 Protocol, the two treaties are collectively known today as MARPOL 73/78. The United States’ enactment of MARPOL is known as the Act for the Prevention of Pollution from Ships ("APPS").

The United States government has increasingly pursued maritime violations of MARPOL 73/78 and APPS. Depending on the circumstances, civil or criminal actions may be brought against individuals, as well as the corporate entities that own, manage, or operate the vessels that violate environmental requirements. The investigative and prosecutorial methodology is fairly predictable. A potential violation typically starts with an investigation by the United States Coast Guard into the circumstances of any alleged marine pollution. The Coast Guard may refer certain matters to the Environmental Protection Agency (EPA) for enforcement. In the most serious cases involving knowing violations, the Coast Guard may refer the matter to Department of Justice for prosecution under the applicable statute.

MARPOL Enforcement in the Delaware Bay - United States v. Vastardis

A recent example of typical enforcement of MARPOL 73/78 and APPS by the Department of Justice is United States v. Vastardis, No. 20-2040, 2021 U.S. App. LEXIS 36034 (3d Cir. Dec. 7, 2021). The Third Circuit Court of Appeals joined the Second and Fifth Circuits in holding that Coast Guard rules requiring vessels to “maintain an Oil Record Book” also require that records must be substantively accurate when the ship docks in the United States.

    MARPOL 73/78 and APPS

MARPOL 73/78 and APPS require oil tankers weighing 150 gross tons or more and ships weighing 400 gross tons or more 1) to implement technology that regulates the amount of oil that can be discharged overboard during the regular operation of a vessel; and 2) to be equipped with oil-water separators ("OWS"), oil-content meters ("OCM"), and an Oil Record Book. See United States v. Anrogar, 459 F.3d 430, 432 (3d Cir. 2006). OWSs separate oil particles from the wastewater to be discharged overboard. OCMs sound an alarm if the oil content of ship’s overboard discharge contains more than 15 parts per million (“ppm”) of oil. Oil Record Books must document all treated and untreated discharges of oil-contaminated wastewater.

Under Coast Guard rules adopted to enforce MARPOL and APPS, entries are required in the Oil Record Book whenever certain machinery operations, such as using an OWS, occur and the master or “other person having charge of a ship” is responsible for the maintenance of the log. See 33 C.F.R. § 151.25. A person who knowingly violates this rule commits a felony subject to criminal penalties under APPS.

APPS provides at 33 U.S.C. § 1902 that it applies “to a ship of United States registry or nationality, or one operated under the authority of the United States, wherever located.” Foreign-flagged vessels are subject to APPS in the navigable waters of the United States, the exclusive economic zone of the United States, and the ports or terminals in the United States.

    Factual Background, Procedural History and Trial

Nikolaos Vastardis was convicted and sentenced for crimes that allegedly occurred while he was the Chief Engineer onboard a Liberian-registered tanker, the M/V Evridiki. Vastardis, as Chief Engineer, was responsible for the Oil Record Book. When the M/V Evridiki entered port in the Delaware Bay, the Coast Guard performed an inspection, and found that the OWS had a hidden valve that allowed the OWS to give a reading of 0 ppm. When the hidden valve was open, the OWS gave a reading of 40 ppm or higher, well over the 15 ppm limitation.

Vastardis was charged in a four-count indictment with violations including (1) knowingly causing the failure to maintain an accurate Oil Record Book (33 U.S.C. § 1908); (2) falsification of records under the Sarbanes-Oxley Act (18 U.S.C. § 1519); (3) obstruction of justice, in presenting false Oil Record Book entries and deceiving inspectors (18 U.S.C. § 1505); and (4) false statements in connection with a federal investigation (18 U.S.C. § 1001). Following a seven-day trial, a jury found Vastardis guilty on all counts and he was imposed a $7,500 fine, a $400 special assignment and three years’ probation. As a condition of the probation, Vastardis was barred from entering the United States.

    The Requirement to Maintain an Accurate Oil Record Book On Appeal

On appeal, Vastardis argued that the requirement to “maintain” an Oil Record Book only required a ship to physically possess an Oil Record Book, not that it be accurate. The Third Circuit disagreed, joining in the standard set forth by the Second and Fifth Circuit Courts of Appeal, finding that “[t]he recordkeeping provision would make little sense if, as Vastardis proposes, it required that ships only physically possess an Oil Record Book in any state of completeness or accuracy.” The Court affirmed the other charges as well, but vacated the condition that prohibited Vastardis from entering the United States, finding Vastardis’s career depends on travel in international waters and a condition of banishment impinges upon freedom of movement and could potentially interfere with the livelihood of a foreign national.

Conclusion

The IMO’s World Maritime Theme for 2023, “MARPOL at 50 – Our Commitment Goes On,” celebrates MARPOL’s legacy. The decision in United States v. Vastardis is only a recent example of its local impact. The 2023 emphasis on MARPOL forecasts new decarbonization initiatives and the potential adoption of further measures to enhance energy efficiency of ships. The shipping sector should prepare for new rules and initiatives in the United States arising from the emphasis on MARPOL.

For more information, please contact the author Holli Packer at HPacker@riker.com or any attorney in our Environmental Practice Group.

Are You Insured? What Property Owners Need to Know Before Allowing Environmental Work

Property owners that allow access to their property for environmental work often seek to be included as “additional insureds” on insurance policies held by those doing the work. For example, this routinely occurs when a prospective buyer conducts due diligence on a seller’s property, or when a previous owner or other responsible party is required to return to the property to remediate contamination. Typically, sale contracts and access agreements require the purchaser or the remediating party to ensure that its consultants and contractors/subcontractors name the property owner as an additional insured on their insurance policies, which in the event of an incident, would give the property owner the ability to make a claim under the policy for damages if those accessing the property do not make the property owner whole. Blanket additional insured language that is common in many general liability, auto and contractor’s liability insurance policies includes as an additional insured any entity that is required to be named an additional insured by written contract. But if the property owner and the named insured (i.e., the consultant and/or contractor/subcontractor) do not have a direct written agreement between them that requires the owner to be included as an additional insured, this arrangement may not be enough. Buyers and sellers in these situations must carefully review additional insured policy language and consider their contractual arrangements with environmental consultants and contractors/subcontractors to ensure that they actually obtain additional insured status.

The Need for Privity of Contract

Courts in New York, Illinois, and Louisiana have denied coverage in instances where owners and contractors/subcontractors lacked privity of contract and instead relied on multiple agreements, such as between the owner and general contractor and then between the general contractor and subcontractor, to establish the owner’s additional insured status. In Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 31 N.Y.3d 131 (2018), New York’s highest court held that although the general contractor agreed with the owner to require all subcontractors to list the owner as an additional insured, the lack of a written contract between the owner and subcontractor precluded coverage for the owner.

In each case where coverage has been denied, courts have emphasized that the particular wording of the insurer’s additional insured endorsement makes all the difference when determining whether privity of contract is required. For example, in Westfield Ins. Co. v. FCL Builders, Inc., 407 Ill. App.3d 730 (2011), the Supreme Court of Illinois concluded that because the policy at issue used the phrase “such person or organization” as opposed to “any person or organization,” privity of contract between the general contractor and subcontractor was required.

There are cases decided in Maine, Connecticut, and Texas where courts have not required contractual privity in like situations. But even in these cases, the outcomes have turned on subtle and unpredictable interpretations of the policies’ endorsements. This can be seen in Pro Con, Inc. v. Interstate Fire & Cas. Co., 794 F.Supp.2d 242 (D. Me. 2011), where the United States District Court for the District of Maine distinguished the endorsement at issue from one analyzed by a Louisiana court merely because the Maine endorsement did not include the phrase “with you” or “with each other” after the phrase “agreed in writing in a contract or agreement.” The Maine case demonstrates that the privity of contract requirement is not a jurisdictional rule-of-law issue, but rather a case-by-case, policy-by-policy one.

Because courts unpredictably require privity of contract on a case-by-case basis, an owner would be wise to enter into direct written agreements with every consultant and/or contractor/subcontractor requiring the property owner be named as an additional insured. Although it may seem redundant, establishing privity of contract directly with the policyholder is the best method to obtain coverage.

Certificates of Insurance Not Enough

Lastly, many property owners have wrongly assumed that receiving a certificate of insurance is enough to prove their coverage. However, courts in many jurisdictions have disregarded such certificates, finding them extrinsic to the interpretation of the policy endorsement’s requirements and therefore not sufficient evidence that a party is an additional insured. See Gilbane, 31 N.Y.3d at 1137 (2018); see also Pro Con, 794 F.Supp.2d at 253 (D. Me. 2011). Therefore, property owners should not rely solely on certificates of insurance and should seek to obtain a specific endorsement to the policies held by those accessing their property to ensure that owner obtains coverage as an additional insured.

Best Practices for Confirming Insurance Requirements

In light of the foregoing, property owners should consider the following when confirming insurance requirements:

Entering into a direct written agreement with each entity providing insurance to the property owner, including all consultants and contractors/subcontractors;

Requesting and reviewing relevant policy endorsements, rather than relying on certificates of insurance; and

Carefully reviewing the insurance information and endorsements with your professional advisors.

The author of this post, Michael Antzoulis, is a law student at Seton Hall University School of Law who participated in Riker Danzig’s annual summer associate program. For more information about this topic, please contact any member of the Firm’s Environmental Group.

If you have any questions about the issues discussed in this

newsletter, please contact any one of the attorneys in our Environmental Group:

Jeffrey B. Wagenbach

Steven T. Senior

Alexa Richman-La Londe

Jaan M. Haus

Samuel P. Moulthrop

Dennis J. Krumholz

Marilynn R. Greenberg

Michael S. Kettler

Jordan M. Asch

Michael S. Spinello

Holli B. Packer

Our Team

Jaan M. Haus

Jaan M. Haus
Partner

Alexa Richman-La Londe

Alexa Richman-La Londe
Partner

Steven T. Senior

Steven T. Senior
Partner

Jeffrey B. Wagenbach

Jeffrey B. Wagenbach
Partner

Marilynn R. Greenberg

Marilynn R. Greenberg
Of Counsel

Dennis J. Krumholz

Dennis J. Krumholz
Of Counsel

Samuel P. Moulthrop

Samuel P. Moulthrop
Of Counsel

Jordan M. Asch

Jordan M. Asch
Associate

Michael S. Kettler

Michael S. Kettler
Associate

Holli B. Packer

Holli B. Packer
Associate

Michael S. Spinello

Michael S. Spinello
Associate

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