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The Garden State Law Podcast discusses all things legal in the state of New Jersey. Presented by lawyers from Saiber LLC, the Garden State Law Podcast highlights trending topics in litigation, transactional law, real estate, and more.
Tim Lough 0:03
Welcome back to the Garden State law podcast. I'm your host Tim Lough Joining me today is CBRE environmental attorney Geri Albin. Geri, thank you for joining us today.
Geri 0:11
Thank you for having me.
Tim Lough 0:13
So today, Geri and I will be discussing Geri's practice as well as environmental law in New Jersey. Before we get going, Geri, maybe you can introduce introduce yourself and your practice a little bit.
Geri 0:23
Yeah, sure, so I'm Geri Albin. I've been at Saiber for 15 years, I do a variety of things, but mostly in the environmental litigation and transactional space. I started at Saiber as an labor and employment lawyer, so I did and general litigation for a lot of years. And in about 2010, there was a need for a young associate to participate in some settlement negotiations for two of our firms, institutional clients that had been brought in as a third party in a little known Superfund site, the Lower Snake River. So the Passaic River is a 70 mile River, it's one of the most polluted waterways in the country. And there has been a lot of litigation, there was a state litigation that was settled, and now there's a federal litigation that's ongoing. And so as a young associate, I was really excited I went to, I think it was, like one of the big law firms in New Jersey and sat around a table with dozens of really accomplished environmental attorneys, and basically took notes and tried to participate in the settlement as best as I could. And it was incredible, and really an amazing experience. And it got me sort of on this road for the environmental law. And I worked with a partner, Randy Schillinger, who, at the time, you know, I had not worked much with and then you know, we had hit it off during, you know, this settlement negotiation, and these clients were wonderful, and we still work with them. And so it was like a really fantastic experience. And then I just was like, I think this is what I want to do. And it's how I sort of found my niche in environmental law.
Tim Lough 2:03
And it's proof that you can practice one one area for a few years and kind of pipit throughout your career. So that's cool.
Geri 2:09
Yeah, you know, environmental law is a funny thing, because it has like a huge scope. So this was a, you know, a state litigation about, you know, that parties were being targeted and being sued for contributing hazardous substances to the Passaic River and we're being requested to clean it up. And at the time, I was like, the environmental law has so many acronyms that a colleague had given me like, a 15 page spreadsheet...
Tim Lough 2:36
We're gonna get to some of those.
Speaker 2 2:39
I didn't fully remember all the like proper names for them. But it was so confusing and so complex. And still, I feel like I'm learning new things every day, and it's changing and growing. And it's been like a really fun 13 years of learning and, you know, participating in it. So that has been my experience.
Tim Lough 2:57
So I don't know a lot about environmental law. But I would imagine that and we're a garden state law podcast, given New Jersey being its population being heavily regulated. A lot of industry and commerce here. I would expect that New York and New Jersey, this general tri state region has some serious implications on environmental law, and it's probably one of the area's that environmental law has the biggest impact. Is that fair to say?
Geri 3:27
Yeah, I mean, I think obviously, environmental issues are nationwide, because before anybody really regulated it, but New Jersey has some of the strictest environmental laws in the country, for sure. But they're also designed at not only protecting health, human in the environment, but also enabling companies and industries to function in a way that there's regulations that allow them to do the business they need to do, but in a safe way. You know, and also in a clean, environmentally sound way, you know, we as Sabir we represent mostly industrial facilities, chemical companies, developers who are trying to navigate the very strict regulations, especially under the Murphy administration, and with the Biden administration. You know, you see with the times and the political climate, you know, things go up and down. And right now, it's like a very strict and heavily regulated moment for a lot of our clients.
Tim Lough 4:31
So let's talk a little bit about your practice. It seems that a lot of environmental concerns, at least in the example I'm about to give are tied to acquisitions or sales of properties. So maybe if I give you which I think is most helpful getting to know someone's practice and what they do and some of the concerns in New Jersey, if I give you a scenario, we can talk a little bit about where the environmental concerns and where you kind of come in, in the process. So we're thinking about a bit Since locally, even here, Morris County, and you have a business site that's selling a business, or selling a property, I should say, and they owned an industrial manufacturing company for 75 years in New Jersey, and who knows what was happening there, they were making widgets. Maybe those widgets had sledge and goop and grant, I don't know, and who knows what was going on with some of what was was happening there. But they're selling the business, they're moving out and someone wants to come in into several acre site. And there is an environmental component to this even before, I would imagine, you know, what's happening there, their due diligence seems to happen, and what happens if you find something? So if we have a client, if you have a client, who's purchasing a property, and there's so much unknown? Where do you come in? And what are the things that you're thinking about? Or really, anybody who's doing this should be thinking about? So imagine, regardless of how you should be aware of environmental possibilities, anytime you're purchasing a large in, you know, commercial property, New Jersey, so where do we kind of fit in there?
Geri 6:07
Sure, absolutely, and I think this isn't just a plug for Saiber, but for anybody that is acquiring property that may or may not have been an industrial facility, or have some kind of environmental contamination or concern. When you are selecting a law firm, we have seen a lot of people select law firms that don't have designated environmental attorneys,
Tim Lough 6:26
Are they usually Real Estate Attorneys?
Geri 6:28
They're transactional, m&a. And sometimes they have to bring in other firms that specialize in environmental law. And the nice part about Saiber, and here's the plug is, you know, we have both. So we have the transactional real estate experience, and also this small, you know, environmental niche where we can come in on an asset deal or stock deal. And, you know, if there's any environmental concern with the property, or hazardous substances or any of that, you know, we can come in with our expertise at the same time, all under the same roof. So, I don't think a lot of people think about that, when they're doing this, they use their attorney they've always had, and they think they can handle it. But these environmental issues are very specific and very niche. And if you're not in the space, like it's very difficult to sort of, you know, fake your way through it like some attorneys like to do. So, that's the plug. With respect to our clients. So, you know, we think it's really important to get if you're going to be buying a contaminated or a property that may or may not have environmental concerns, the due diligence process is like very important.
Tim Lough 7:28
And is this something carte blanche, any acquisition, you say? Like, before we do anything, you should talk to our environmental attorney, just so we have this covered? Or there's some instances where you go, no, no, it's never gonna happen.
Geri 7:41
Yeah, I mean, it depends. So I think, I think it depends on the client and the property and what you're doing. But typically, if you're buying any kind of commercial property, you probably want to do some environmental due diligence in advance just to make sure that you've covered all your bases. There are a number of environmental statutes in New Jersey, one of them is, is really the industrial site recovery act that's implicated when you have either an industrial and industrial facility, and you're usually your business gets what they call it an NAICS code, and it's assigned to you and if it is part of the statute that is implicated, then the seller has seller or whoever contracts for it all sorts of environmental responsibility with respect to making sure the site is clean cleaned up, has final remediation documents before the sale closes, or, you know, you can work out so it can occur after the sale closes. So part of our job is to determine sometimes what that NAICS code is sometimes people have it in a lease, even leaseholds are responsible for Israa. So there's triggering events that implicate so if you're going to sell cease your operations, the statute lists like a number of different triggering events. So if you have, if you're, you know, just shutting your company down, and you are an industry facility and have hazardous waste at your facility, you will trigger ISR. And you will need to follow what the statute says, and we can help you through that process.
Tim Lough 9:08
Depending on what happens, I would imagine this can drag out for a while at times. Yeah, so you could probably make your job complicated because people want to close a transaction, I want to buy this building, and I can't because you're telling me we have a problem. So even if there's no problem, you still come in?
Geri 9:24
Well, we want everyone to do it appropriately. Because if you don't carefully do due diligence and make sure you have done the all appropriate inquiry standards, you won't have the protections, the liability protection, so you don't want to buy a property that's contaminated without doing the due diligence, because then you're liable. You're 100%, that's the law. And you don't want that, you know, because I will have a job forever and ever, because these some of these environmental issues will never be cleaned up. But there is a way to mitigate your liability and also responsibility and how much you're going to want to pay for it. etc, etc.
Tim Lough 10:01
It's an insurance policy holding, having an attorney general is kind of like one big insurance policy, but environmental attorneys specifically whether or not you may feel comfortable with the property. But, you know, God knows what can happen if you don't have someone.
Geri 10:17
Sometimes if we know that we don't know something, we encourage our clients to research or potentially get an actual insurance policy that will pay, for down the road, you know, if something changes, and now they find a new contaminant, or an emerging contaminant that you don't even know about. Because the history of the site is so lengthy are so unknown, that you can't even tell. Listen, sometimes you have a sophisticated buyer that is used to buying properties and understands what they need to do. With respect to the environmental and like those clients, for me, like piece of cake, you know, it's when you have a mom and pop shop that's looking to close, and they've been operating for 50 years, and they never even realized they were supposed to do all these things like keep drums of I don't know hydraulic fluid, like on a pallet or, you know, not leaking into the ground. And, or, you know, we'll talk we could talk about this later, or whenever, but PFOS or per floor clean, I'm not gonna say correctly, we're just gonna say the acronym PFOS is an emerging contaminant that they have found in it's a manmade chemical that is basically in most products, especially industrial products. So it's like in soap, and the government is regulating PFOS more now, but we don't know where it's gonna go. So if you know, there's firefighting foam, or there was a fire, or because that's typical, or that the plant previously manufactured using PFOS, or any of those things, those are the types of, you know, concerns that, you know, we sort of talked about or look at, or do the due diligence for, you know, tanks is a big one.
Tim Lough 12:00
Yeah. But that's interesting, because it doesn't necessarily have to be a large scale manufacturer of, you know, big products, whatever it can be, you're leasing or purchasing a property and it was a dry cleaner. I know, there's environmental concerns with dry dry cleaners as well. So just because it's a small business doesn't necessarily mean that you don't have not to strike fear.
Geri 12:25
You can still do it. And you can protect yourself if you negotiate and draft your transactional documents in a specific way. And that's a big part of our job. So like, if you're buying and selling, we're drafting the agreements in a way to really capture who's responsible for one. And listen, you have to sometimes you know, you're buying a demised property, and the seller will put in escrow $300,000 because you know there's an issue, you don't know how big or how small, but we can negotiate environmental escrows. So that you could use that money later, if you find that there's a remediation problem that you know, because oftentimes, it's better. You know, there's two thoughts on it. So like, if you're buying a property, sometimes you want to be able to do the work because your property and you know that you'll do it the right way, or you might want to buy the property and have not touched the environmental at all, and the seller will be the one who's responsible. You know, that's what we sort of work out with the client to see, you know, who has what tolerance? For what type of you know, what kind of deal it is.
Tim Lough 13:32
Are there some key indicators to purchasers that tell you right away, you don't even have to look at the site. And, you know, we got an issue, not just necessarily because of the company, but an area, like I'm not gonna want to pick on any towns or places in New Jersey, but I could imagine there's certain areas where you have a client saying, we're looking to purchase a property here and you go, there's been a lot of problems there. We need to really talk about this.
Geri 13:55
Yeah, for sure, because you want them to have the wherewithal to understand because if a prior owner, you know, goes bankrupt or defunct, then the DEP may look to you to be the one who's cleaning up. But if you've done your all appropriate inquiry or your due diligence in the way that you have an innocent purchaser protection, then you won't be held responsible. And that's what we really help you do. But yeah, absolutely. I hate to be the killer of all deals, but like, sometimes our real estate folks see me cand are like "be cool, be cool," you know, because we don't want to scare anyone, but you know, if you're taking on a piece of property that's contaminated, because we're in New Jersey, because the laws are so specific, you have to just understand that there may be you know, some work, you have to do, some monitoring or operation and maintenance or however, and you can absolutely have the seller or somebody else be responsible for that. But like we need to be involved to discuss those types of things.
Tim Lough 14:47
But I guess at the same time that if you're representing a seller and there's issues that are found by either side, you're not selling this property. Your hands are tied. You have to you have to do something, right? So it's not kind of like, well, let me just close this deal. And this deals over and let me find someone else and then there's probably a certain amount of liability.
Speaker 2 15:09
Yeah, I mean, there are as we represent sellers all the time with properties that have environmental issues, and we can get them to a place where they can hand off the responsibility and the liability and walk away from the deal feeling like they did what they were supposed to do. We contracted it, we put up the escrow we did what we needed to do, you know, a lot of it is we bring in Environmental Consultants all the time that helped us because under ISRA, you're required to hire a licensed state remediation professional. In 2009, the Site Remediation Reform Act was passed, which totally changed the way the DEP was involved in site remediation. And it sort of privatized it. So now they have these environmental consultants who get licensed by the state, who are required to be brought in and paid for by the client, who are basically standing in the shoes of the DEP. So it gets tricky because they you pay them so they work for you, but really, they have, you know, a standard that they have to uphold. And I think having the right consultant on the job really helps either narrow the focus, protect the client, make sure it's done correctly, so that there's no issues, and we cross all our t's and dot our i's. So like we have different Environmental Consultants for different kinds of jobs, big jobs, we can use a big environmental consulting company that have all sorts of engineers, and blah, blah, blah, and all these things. Or we have the guy who is the tank pull guy, like we got, we know the environmental consultant, that if we're going to pull the tank, he's the guy, he's seen it, he's done it all, and he can do it well. And at a low costs, or, you know, if there's a specific kind of contamination, so bedrock contamination where the contaminated groundwater is deep, you know, we have environmental consultants who are specialists in bedrock groundwater contamination, and I think, you know, not all LSRPs It's not a one size fits all, it's like, you know, we've have experience where we know so many really fantastic professionals that can help in like very specific ways. And we try to pair our clients with the correct type of consultant to help manage and minimize minimize their sort of liability in whatever project that we're working on.
Tim Lough 17:21
That's always been my question... I never really knew what an LSRP does, I know that they're very involved in the process. Obviously, Geri's not going out with a shovel to the property.
Geri 17:31
No, but I do like to go. It's a fun field trip.
Tim Lough 17:35
So that aspect, the investigation aspects and the looking into the physical aspects of the property. That's the, basically the LSRP, who's appointed by the state. And there's, I guess, subcontractors is that the way it works? Or an LSRP has, so it's their either their company, or their entity, they have the engineer they have each component?
Geri 17:56
It really depends on the shop. Like there's one solo LSRPs, and then there's ones who are in bigger companies that have all different aspects of all different things. So it depends on what you need, the size of the site, and it will also depend on the bottom line, like how much money you're going to spend, because when you get to a site, and you have an LSRP come, you know, typically, they do preliminary assessment, and a site investigation in New Jersey. In federal, it's phase one, you should probably do them both so that you're covered by both laws, and they like walk the site and they do all the things but they haven't even... not until they determine after the preliminary assessment, if they need to do more, do they like stick anything in the ground and take like a proper sample, but real samples are very expensive. So, you know, they sort of dictate, like, how many, were, you know, depending on the groundwater flow, or what if their soil contamination or if they see something funny, you know, and they prepare all the reporting, and submitted to the DEP for review. We also review the reports to make sure there's nothing that we want to highlight because once the LSRP does, or the environmental consultant does the report, we review it because we want to see if there's anything that we want to highlight to our client that's like, uh oh, this is an area mapped for historic fill, and most of New Jersey is mapped for historic fill, like are we going to need a deed notice or are we going to need to do you know, are we going to ask the seller to do that? Or is that something that we're going to have to take care of? So, we know and can highlight in their reporting the types of stuff that we want to point out to the client who sometimes is not, you know, well versed in the landscape so it would be helpful to have like sort of that background and and we help with that.
Tim Lough 19:42
Okay, we don't need to get into the weeds about this, but I need to know what historic fill is. You can't just say historic fill wihtout telling you what it means.
Geri 19:49
I wish I had the proper definition of me but it's like like Ash and concrete and it's just in most of the state like because
Tim Lough 19:58
Something historical stood there and it can't be disrupted basically?
Geri 20:02
Yeah. And it has, like, a specific background of different constituents that like, is not good. And so, it's mapped, so everybody knows where it is. So like, there's clean fill, so like, there was all these case law and stories where people would bring in dirty dirt, and like, actually, there's new lawn dirty dirt, by the way, but we won't get into that. So they would feel like under a baseball field with like, terribly contaminated materials, and then cover it up. And like everyone was outraged. And now that's absolutely not allowed and you know, used to bring clean fill in has to be certified, and all of these things. And there's other places with historic fill, which is typical and industrial regions, where there's been a lot of industrial use. And you could just put a deed notice on it saying like, this has historic fill, you don't have to clean it up or dig it out. It just, you know, everybody knows that it's there. So like, you're not gonna like farm in historical fill, you know what I mean, you're gonna do farming or agriculture there. But like, it's fine, you know,
Tim Lough 21:00
And that's probably prevalent in New Jersey, historic fill is everywhere.
Geri 21:03
So they have mapping. So the DEP has mapped different places. But it's something we do highlight for clients, of course, because, you know, it could affect the use of the property or, you know, if you need to have any sort of institutional or engineering controls on it, you know, that they should know about it.
Tim Lough 21:19
Yeah, I can only imagine if you're constructing something in Morristown, New Jersey, which is gotta be one of the most historical places in America. So you just have your fingers crossed, but like, I hope this is...
Geri 21:29
I'm trying to think about what they would say. It's like Ash and like chips and concrete.
Tim Lough 21:34
You've mentioned this before, again, I had said, I don't know a lot about environmental level, one thing I always hear about is PFOS. It's kind of a hot topic right. Now, these are micro micro plastics that unfortunately exist everywhere. How are you dealing with this? How does this come into your world? Can you tell us a little bit about it.
Speaker 2 21:53
So PFOS is a manmade chemical, it was typically in like Teflon, and it was in firefighting foam. Its in your clothes. And it is in like very difficult... it just takes on a life of its own. You can't destroy it.
Tim Lough 22:12
This is when it like biodegrade?
It doesn't biodegrade.
But breaks down and exists?
Geri 22:19
No, it doesn't. So it's like it's in place. It's in like food packaging, it's now in our water, it's in the grass. So it's taken on sort of a life of its own. So like, if you tested our blood, we have like, you know levels of PFOS in it, not technically dangerous to you. But like because it is now permeated so heavily in all these things. And that's why I think it's gained so much traction. It's called they call it an emerging contaminant, and they're just starting to regulate it in the water. And there's been cases on it in New Jersey specifically. But it's so like, I threw out my Teflon pans, like my old ones, you know, and now they have new PFOS-free materials that you could buy like to cook in and all those sorts of things.
Tim Lough 23:07
So it's a good excuse to buy a nice pan set? Because I'm in the market.
Geri 23:14
And you know, I think it's it's gained a lot of recognition, because the EPA and the DEP are just starting to understand how to regulate it. It's very difficult to get rid of it.
Tim Lough 23:24
So like there's no getting rid of it?
Geri 23:26
There is and I think that you know, carbon typically. So like, for example we represent a client in a number of Superfund sites in New York, New Jersey, Delaware, and Pennsylvania. And it's in like gloves, latex gloves. So how do you test for PFOS when like you're holding it... So it's been like a really like an interesting science where they're trying to figure it out. And I've heard of different organizations that are coming up with different ways to sort of reduce it and get rid of it. But right now, for the most part, we're seeing the EPA and monitoring it, wanting us to test for it and have levels of it. And it's unclear how it's going to be regulated. And we're still in this like very, even though it's been we've known about it for years, like still understanding how it's going to really affect sites and clean ups and remediations. You know, going forward.
Tim Lough 24:25
Do you suspect moving forward there's going to be regulation on whether or not you can manufacture with it?
Geri 24:31
Yeah, I think there are a number of states if I'm not mistaken that have banned the manufacture and use of it
Tim Lough 24:39
For sure. Yeah, probably good idea. Yeah. So let's talk a little bit about just you your history in environmental law, how you got into it. You touched upon it in the beginning about your kind of entryway, but maybe you can tell us a little bit about how you went from an employment lawyer, you mentioned going to this conference or meeting where you're taking notes. So the transition itself.
Geri 25:02
I went to this for the Passaic River, I sat in on the settlement negotiations, we worked through that, obviously, with a number of partners in my firm, with our clients to get to a settlement. And then one of our clients, their in-house counsel had retired and asked us to handle all their Superfund legacy sites. So they had acquired a company that had a lot of legacy sites. So we do a lot of super fun work in a number of different sites. And Superfund law is these, you know, big hazardous waste sites, which have hundreds of parties sometimes who are working on cleaning up that site, and what we do, we're sort of fighting for our client to have whatever allocation of responsibility in cleaning up the site. So we monitor them, and we, we work with the client to sort of understand the history, and you know, what their role was, you know, before the all these regulations when, you know, people were just sending drums to a reconditioner or and then sludge was, you know, leaking into the rivers. And now they're saying, Oh, we have records of your client in 1971, sending these drums, etc, and you're responsible. And so then we're like, woah woah woah, we're not responsible, you know, or however it works. So I do a lot of that superfund work. We also do simple things. So you are buying, you understand that there's like a tank on your neighbor's property. And they want to come onto your property to like test to see if your tank is leaking. And we will draft an access agreement for you, you know, a simple agreement that covers you so that if they come on your property and do testing, you won't be held held responsible if somebody gets hurt, or if they do something and you want them to put your grass back the way it was, you know, we take care of those types of things too.
Tim Lough 25:02
In that situation, can a neighbor say like "No, no, it's good. I don't I don't want you testing. I don't want to know."
Geri 27:05
So... it depends. If the DEP is requiring that the work is performed, because they need to find like a source of some sort. Yeah. You could say no, but then they can bring an order show cause in court, and there is a statute that says that you are required to allow. So then make sure you say like, I want an access agreement, and then come to us, and we'll say these are the things you want in your access agreement. So, you know, they can't like come on your property at 6 am, wake your kids, you know, like, you'll have it done in normal hours. But you know, we like put that on the agreements, so that it's done carefully. Access agreements are also with commercial properties as well, you know, if you, you don't want it to mess up your business, you know, during your store hours, you don't want people digging, because you know, there's a groundwater flow problem, and they think that the contamination is coming from there. So like you're saying, obviously you want them to test but you don't want it to mess up, you know, the flow of your business operation. So you can negotiate all of that, that's all negotiable. We'll help you with that. My practice is some litigation, and but mostly transactional, you know, we work with clients all the time, there are a lot of reporting obligations for clients with respect to if they have hazardous substances. So we'll help them, you know, figure that out, permitting is a big part of it. We do a lot of that. It's really varied. It's fun. I mean, you don't realize that there's all these little things happening until you're like, oh, wait, I don't understand this at all. Can you help, you know, and then we try to get involved.
Tim Lough 28:38
And at the end of the day, you're you're doing something good. It's a positive, it's a positive thing. Yeah. You've tried to help the environment.
Geri 28:43
You say environmental lawyer, and everyone's like, Oh, you're a tree hugger, you're great. I'm, like, we represent chemical companies, But they're, you know, compliant, and regulated and doing the right thing and, you know, doing their best to, you know, protect human health and the environment always, you know, and always, you know, making sure that there's records and manifests and reporting obligations, because there's a lot of like sticky things that can happen. And we see it all the time, but that's what makes the day go fast.
Tim Lough 29:12
Well, Geri, thank you for joining us today. If any of our listeners or watchers have a question for Geri, you can reach me at 973-845-7719 or galbin@saiber.com. Thank you for all those who are listening and watching. Make sure to subscribe to our YouTube channel, our podcast channel and we'll catch you next time
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