Navigating Environmental Concerns while Recovering from Hurricane Sandy

November 2, 2012

Environmental Law Alert

On behalf of Wolff & Samson, we would like to express our sincere hope that you and your families are safe and secure after this devastating hurricane. As we continue through what is likely to be weeks of recovery, we would like to make you aware of things you should be considering as business owners, business operators and home owners.

Recovery Support

First and foremost, you should immediately contact your insurance carriers. Consider all applicable policies that may provide coverage for your loss, including Comprehensive General Liability, Property & Casualty, Personal Injury, Pollution Liability, Tank Insurance and even Automobile policies.

Prior to making any repairs, document all damage or potential damage by photo or video. This does not have to be sophisticated. For example, use your smart phone device if it has photographic capability. If possible, save any damaged property (furniture, flooring/carpet pieces, etc.) to show the quality of the original material, at least until such time that an adjuster can inspect the damage. You should also gather any documentation evidencing the value of any damaged property (receipts, invoices, etc.).

Register for disaster assistance. Disaster assistance is available through the Federal Emergency Management Agency (“FEMA”) and through the Small Business Administration. You should register for assistance regardless of whether you are making an insurance claim. Follow the links below to register for assistance:

• FEMA: Register for assistance at www.disasterassistance.gov. For more information, visit www.fema.gov/you-apply before you register. You may also call 1-800-621-FEMA (3362) (or 1-800-462-7585 (TTY) for the hearing and speech impaired).

• Small Business Loans: Your business may be eligible for disaster assistance from the Small Business Administration. Visit www.sba.gov/sandy for more information.

Rule Waivers and Emergency Permits

Both the New Jersey Department of Environmental Protection (“NJDEP”) and the United States Environmental Protection Agency (“USEPA”) have issued some important limited waivers to certain rules regarding the storm.

For example, USEPA has issued a limited waiver of the low sulfur diesel fuel requirements under limited circumstances, including in utility service vehicles, emergency response vehicles, and in certain generators and pumps used for emergency purposes. This waiver will continue through November 13.

USEPA has also waived the federal Reformulated Gasoline requirements in many northeast states, including New Jersey, to sell conventional gasoline through November 20. A waiver of the prohibition on combining reformulated gasoline blendstock for oxygenate blending with any other gasoline, blendstock or oxygenate has also been issued by USEPA. These waivers will continue through November 20.

In addition, NJDEP has suspended certain regulations pertaining to waste transportation and disposal in very limited circumstances. For example, NJDEP is temporarily allowing for the use of unregistered but properly marked vehicles for waste transport and has expanded the hours of facility operation through November 9.

Although we are in a state of emergency, most of the environmental rules and regulations continue to apply. In many cases, NJDEP regulations allow for emergency or general permits that may be able to address your needs during this recovery period. If they do not, you may be able to obtain a waiver of certain NJDEP environmental regulations under the recently enacted Waiver Rule, which includes provisions to prospectively waive strict compliance with certain rules when a public emergency has been declared.

Hazardous Substance Spills

Spills of oil and hazardous substances are still required to be reported immediately to NJDEP on their spill hotline: 1-877-WARN-DEP (1-877-927-6337). In addition, non-petroleum spills that are greater than a reportable quantity (defined by the USEPA reportable quantities) must be reported to the National Response Center at 1-800-424-8802.

Those with existing environmental cleanups should evaluate whether there are new immediate environmental concerns (“IECs”) requiring your immediate attention.

Innocent parties who are dealing with a spill of a hazardous substance (including petroleum) and incur costs or suffer damages related to the spill, including cleanup and removal costs, can file a Spill Fund claim for the recovery of these costs with the NJDEP within one year after the date of discovery.

Please contact us if you require any assistance in navigating your disaster recovery needs:

Dennis M. Toft | Co-Chair, Environmental Group | dtoft@wolffsamson.com | (973) 530-2014

John G. Valeri Jr. | Member of the Firm | jvaleri@wolffsamson.com | (973) 530-2030

C. Nicole Sullivan | Associate | nsullivan@wolffsamson.com | (973) 530-2059

Keith E. Morris | Associate | kmorris@wolffsamson.com | (973) 530-2107
 

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