A politically connected Hackensack attorney was one of three people whom Governor Christie nominated on Monday to serve on the North Jersey District Water Supply Commission.

Alan S. Ashkinaze of Oradell, whose law practice has offices in Hackensack and Nyack, N.Y., served on the New Jersey steering committee for the presidential campaign of former Massachusetts Gov. Mitt Romney in 2008. He specializes in environmental law, land use and municipal law, according to his firm’s website.

The governor also nominated Norman A. Feinstein of Caldwell and Robert C. Garafalo of Brielle, in Monmouth County. Feinstein is executive vice president of the Hampshire Real Estate Companies, the Morristown-based real estate firm led by former New Jersey Sports and Exposition Authority Chairman Jon F. Hanson, who is Christie’s chief adviser on sports and entertainment interests.

The nominations, which must be approved by the state Senate, come nearly four months after Christie demanded that the NJDWSC explain recent hiring practices and account for recent pay increases and promotions. The governor has sought to exert greater control over the NJDWSC, the Passaic Valley Sewerage Commission and other public agencies that he says have operated with limited oversight.

(Reprinted with Permission)

It is also evident from the Spill Act’s definition of a “discharge,” which explicitly refers to resultant “damage[s],” that some nexus between the use or discharge of a substance and its contamination of the surrounding area is needed to support a finding of Spill Act liability.

A reading of this decision suggests that the mere ownership of property during the time the discharge is discovered (as opposed to when the discharge occurred) is not sufficient to impose liability. This is potentially very significant and will likely change the way NJDEP handles large regional, multi-party contaminated sites. It appears that in order for NJDEP to prove that a property owner or other potential responsible party (PRP) is liable for contamination on the site and/or of the surrounding area of the site, NJDEP must prove that the property owner and/or PRP was responsible for the discharge, i.e. did the owner or PRP use, store, or generate the contaminants that caused the resultant damage.

LEASING GASOLINE STATIONS: AVOIDING THE ENVIRONMENTAL TRAP
Part One in a Two Part Series
By Alan Ashkinaze

Leasing a gasoline station in the current economy is fraught with many challenges; and one of the most important (yet overlooked) challenges is avoiding the environmental traps caused by the actions or inactions of your tenant. Lessors of gasoline service stations live in constant fear that an environmental liability, such as contamination caused by a spill or discharge, or penalties levied by NJDEP, will devastate their business or investment. Fault is not necessary for liability. Despite this reality, lessors of gasoline stations rarely take the proactive measures necessary to minimize their environmental exposure. Unfortunately, as too many of us know, the failure to take such actions can be tragic. Environmental liabilities fall into two categories: contamination and compliance. In New Jersey, many of the state’s environmental statutes, such as the Spill Compensation and Control Act (Spill Act), and New Jersey Underground Storage of Hazardous Substances Act (UST Act), impose joint and several liability on the property owner and facility operator. Because of this, lessors, as the real property owner, often find themselves liable to the government for remediation contaminated property caused by their tenant. Current property owners can be held responsible for the site cleanup even if they did not own the property when it was contaminated and even if the contamination was caused by another party, such as a tenant, a prior tenant, or previous owner. Similarly, a lessor can be held liable for their tenant’s failure to comply with other state statutes and regulations. For example, the UST Act imposes joint and several liability on the current owner (lessor) and the facility operator (tenant) for failure to comply with the UST Act provisions. Should the operator/ tenant be unable, or simply unwilling, to correct the violations or pay the NJDEP levied penalties, NJDEP will deem will deem with the lessor (as the property owner) responsible for compliance and/or payment of fines.

So, what can lessors (as owners of the service station property) do to prevent being held responsible for the environmental liabilities caused by other parties?

What follows are some suggested steps a lessor could take to avoid falling into the environmental trap.

1. Know your property: The initial step in determining the environmental condition of your property is to complete a file review at NJDEP. Check to ensure there are no active/open cases. If there are open cases, speak with the NJDEP case manager to determine the status of the case and the responsible party. Open cases should be clearly denoted in any lease. Next, a phase I investigation should be completed. This investigation includes a more through file review (e.g., files maintained by local, state, and federal agencies), a site inspection, a report, of observations, findings and recommendations. Should the Phase I indicate areas of potential or apparent environmental concern, a Phase II assessment could be conducted. That investigation would usually involve soil and groundwater sampling.

2. Take a “snapshot”: Building upon these site assessment, you can now take an environmental “snapshot” of your property so to establish an environmental baseline. This “snapshot” will form a record by which all site conditions will be compared especially at lease termination; and will be critically important if there is subsequent litigation over responsibility for cleanup or compliance.

3. Environmental clauses in the contract: When drafting the lease, lessors should include provisions compelling the tenant to: a) comply with all applicable environmental laws and regulations; b) maintain good housekeeping; c) undertake annual compliance inspections; d) indemnify the landlord for all on-site and off-site contamination and for any penalties (or obligations) relating to the tenant’s non-compliance; e) restore the property in good order at lease termination; and f) pay rent (beyond the original lease term) if the property cannot be rented while undergoing remediation.

4. Compliance inspections: Annual compliance inspections should be mandatory: The findings should be reported to you; and any items in non-compliance should be immediately corrected by tenant at its sole cost. Consider retaining the inspection firm directly and recouping the cost by adding that expense as an additional rent item.

5. Insurance: Consult with an insurance broker that specializes in gasoline stations to determine the appropriate type and levels of coverage. To make certain that there is current and appropriate coverage, consider paying the premium for the tenant and recouping the cost by adding that expense as an additional rent item.

6. Take another “snapshot”: Complete a second environmental baseline right before the lease is terminated. If there has been spills/discharges or non-compliance during the lease term, this “second snapshot” will supply data that (when coupled with the pre-lease baseline) will aid the owner/lessor in determining the responsible party. Ideally, the operator/lease should have insurance that could be tapped if a serious issue is found.

These proactive steps are in no way meant to be fully exhaustive. Rather, it is offered to sensitize property owners to the risks inherent with owning a gasoline station property. Therefore, before leasing your property, owners should consult with their attorney and the professionals referenced here to develop a strategy regarding how to minimize their environmental exposure. Otherwise, owners risk walking into an expensive environmental trap.

So far SRRA is working well:  transactions are closing faster, “open” cases are getting “closed”, and the many long standing contaminated sites in New Jersey are finally being remediated.

Leasing a gasoline station in the current economy is fraught with many challenges; and one of the most important (yet overlooked) challenges is avoiding the environmental traps caused by the actions or inactions of your tenant. Lessors of gasoline service stations live in constant fear that an environmental liability, such as contamination caused by a spill or discharge, or penalties levied by NJDEP, will devastate their business or investment. Fault is not necessary for liability. Despite this reality, lessors of gasoline stations rarely take the proactive measures necessary to minimize their environmental exposure. Unfortunately, as too many of us know, the failure to take such actions can be tragic. Environmental liabilities fall into two categories: contamination and compliance. In New Jersey, many of the state’s environmental statutes, such as the Spill Compensation and Control Act (Spill Act), and New Jersey Underground Storage of Hazardous Substances Act (UST Act), impose joint and several liability on the property owner and facility operator. Because of this, lessors, as the real property owner, often find themselves liable to the government for remediation contaminated property caused by their tenant. Current property owners can be held responsible for the site cleanup even if they did not own the property when it was contaminated and even if the contamination was caused by another party, such as a tenant, a prior tenant, or previous owner. Similarly, a lessor can be held liable for their tenant’s failure to comply with other state statutes and regulations. For example, the UST Act imposes joint and several liability on the current owner (lessor) and the facility operator (tenant) for failure to comply with the UST Act provisions. Should the operator/ tenant be unable, or simply unwilling, to correct the violations or pay the NJDEP levied penalties, NJDEP will deem will deem with the lessor (as the property owner) responsible for compliance and/or payment of fines.

So, what can lessors (as owners of the service station property) do to prevent being held responsible for the environmental liabilities caused by other parties?

What follows are some suggested steps a lessor could take to avoid falling into the environmental trap.

1. Know your property: The initial step in determining the environmental condition of your property is to complete a file review at NJDEP. Check to ensure there are no active/open cases. If there are open cases, speak with the NJDEP case manager to determine the status of the case and the responsible party. Open cases should be clearly denoted in any lease. Next, a phase I investigation should be completed. This investigation includes a more through file review (e.g., files maintained by local, state, and federal agencies), a site inspection, a report, of observations, findings and recommendations. Should the Phase I indicate areas of potential or apparent environmental concern, a Phase II assessment could be conducted. That investigation would usually involve soil and groundwater sampling.

2. Take a “snapshot”: Building upon these site assessment, you can now take an environmental “snapshot” of your property so to establish an environmental baseline. This “snapshot” will form a record by which all site conditions will be compared especially at lease termination; and will be critically important if there is subsequent litigation over responsibility for cleanup or compliance.

3. Environmental clauses in the contract: When drafting the lease, lessors should include provisions compelling the tenant to: a) comply with all applicable environmental laws and regulations; b) maintain good housekeeping; c) undertake annual compliance inspections; d) indemnify the landlord for all on-site and off-site contamination and for any penalties (or obligations) relating to the tenant’s non-compliance; e) restore the property in good order at lease termination; and f) pay rent (beyond the original lease term) if the property cannot be rented while undergoing remediation.

4. Compliance inspections: Annual compliance inspections should be mandatory: The findings should be reported to you; and any items in non-compliance should be immediately corrected by tenant at its sole cost. Consider retaining the inspection firm directly and recouping the cost by adding that expense as an additional rent item.

5. Insurance: Consult with an insurance broker that specializes in gasoline stations to determine the appropriate type and levels of coverage. To make certain that there is current and appropriate coverage, consider paying the premium for the tenant and recouping the cost by adding that expense as an additional rent item.

6. Take another “snapshot”: Complete a second environmental baseline right before the lease is terminated. If there has been spills/discharges or non-compliance during the lease term, this “second snapshot” will supply data that (when coupled with the pre-lease baseline) will aid the owner/lessor in determining the responsible party. Ideally, the operator/lease should have insurance that could be tapped if a serious issue is found. These proactive steps are in no way meant to be fully exhaustive. Rather, it is offered to sensitize property owners to the risks inherent with owning a gasoline station property. Therefore, before leasing your property, owners should consult with their attorney and the professionals referenced here to develop a strategy regarding how to minimize their environmental exposure. Otherwise, owners risk walking into an expensive environmental trap.

In a world of ever growing legal behemoths, a small band of highly skilled outsiders is trying to hang on to their hard won niche practices.Admittedly, the efforts of the New Jersey chapter of the International Network of Boutique Law Firms (INBLF) are unlikely to make much of a blockbuster action flick, but they do tell an interesting story of how a singlefocus firm can survive in the increasingly competitive legal landscape. INBLF is an international organization with chapters generally comprised of small firms that specialize in a single practice area; only one firm from a given area is admitted, According to Alan S. Ashkinaze, a Hackensack solo concentrating on environmental law, the organization “is a network, not just of client referrals, but also of ideas and resources that helps level the field” for boutique firms competing with legal giants. The New Jersey chapter, headed by Ashkinaze, is a relatively recent arrival on the state’s legal scene, but already boasts some well known members, including Lynn Fontaine Newsome, the incoming president of the New Jersey State Bar Association. And INBLF hopes to use her installation next month to make a name for itself among the lawyers, judges and others gathered for the State Bar’s annual meeting in Atlantic City.

Members of the chapter include bankruptcy practitioner Stephen B. Ravin of Forman Holt Ehades & Ravin in Rochelle Park, the intellectual property firm Lerner, David, Littenberg, Krumholx & Mentlik in Westfield, the Morristown office of global labor law firm Jackson Lewis and the tax firm Korf & Rosenblatt, also in Morristown.

According to Ashkinaze, the group is seeking member candidates focusing on criminal law, real estate, business transactions, immigration, complex civil litigation and plaintiff side employment. Prospective members must pass muster with both chapter members and the national INBLE Ashkinaze said Newsome’s membership “speaks volumes about the caliber of the law firms in our chapter;’ “We’re looking for pre eminent leaders in their fields,” he said.Comments about this story may be sent to kris.scibiorski@njlnews.com.

Conservative surge

Christie’s election represents the high water mark of an informal group of conservative activists who began meeting regularly at the Empire Diner in Parsippany eight years ago.

The Tuesday Group began its lunch sessions in 2002, which could be considered the nadir of the conservative movement in New Jersey. But several activists became inspired and puzzled that year by staunch conservative E. Scott Garrett’s election to Congress despite the state’s Democratic tilt. They began holding occasionally contentious discussions about how to replicate the Garrett model elsewhere in blue Jersey.

Two Tuesday Group alums, former Jersey City Mayor Bret Schundler and Sussex County freeholder Harold “Hal” Wirths, are joining Christie’s cabinet, Schundler as education commissioner and Wirths as labor commissioner. And the meetings’ once-sparse attendance has been replaced by standing-room-only crowds.

“We’re ecstatic,” said Alan Ashkinaze, a Hackensack lawyer and one of the group’s founders.

OLD TAPPAN — Neighbors involved in a pesticide complaint against a farm owned by a borough councilman have filed an ethics complaint against him with the state’s Local Finance Board.

The complaint, dated Feb. 1, alleges that Ronald Binaghi Jr. used his influence as a borough councilman to obtain approval to build a new 7,000-square-foot greenhouse despite using an outdated 18-year-old survey of the farm.

“The zoning-permit application clearly states that the applicant has to provide a recent survey of the property,” said Alan Ashkinaze, lawyer for the affected residents, James and Wilda Lagrosa. “Had this been any other resident of Old Tappan, that permit application would have likely been rejected as incomplete.”

“There was no favoritism accepting an old survey,” countered construction official Peter Abballe. “Under the Right to Farm Act, there are limitations regarding the size. But if [Binaghi] abides by zoning setbacks, which he does, he can put as many greenhouses as he wants.”

The Lagrosas have complained that greenhouse ventilating fans from Stokes Farm, owned by Binaghi, blow contaminants directly onto their property. Wilda Lagrosa has asthma and breathing problems.

While engaged in state mediation with the Lagrosas, Binaghi received a construction permit in December to build another greenhouse structure on the 17-acre site. In response, Ashkinaze filed another grievance with the Bergen County Agriculture Development Board in December.

The new ethics complaint also alleges that Binaghi submitted a building plan with ventilating fans despite promising no fans on the zoning permit application.

“That is a prototype plan and that greenhouse can be installed with or without fans,” Abballe responded. “Mr. Binaghi has no intentions of putting any fans in this greenhouse.”

But Ashkinaze doesn’t buy it.

“Clearly that model there is designed for four ventilating fans,” Ashkinaze said. “If it’s not an actual depiction of what he’s going to be building, why did the building inspector approve it?”

Binaghi said that he has followed all the borough’s regulations.

“The reason why the Right to Farm Law was created was for this exact reason — for frivolous nuisance complaints,” he said.

Bob Martin, a Hopewell Township business executive, will be nominated by Chris Christie to serve as commissioner of the Department of Environmental Protection.  Martin is a retired partner with Accenture and worked with the Christie campaign and transition team on energy and environmental policies during his race for governor.

Martin will replace Mark Mauriello, who has been serving as commissioner for more than a year after his predecessor Lisa Jackson was tapped to head the federal Environmental Protection Agency.

A Republican, Martin ran for state Senate in Mercer County in 2007 but lost to Democratic-incumbent Shirley Turner. 

“Commissioner of the Department of Environmental Protection is one of the most important roles in any administration. The Department’s large workforce, and the fact the Department’s actions impact business and individuals in so many ways mean a successful Commissioner must bring a diverse skill set with them to Trenton,” said CIANJ President John Galandak.  ”Bob’s experience as a manager of a large organization and his environmental experience will serve him well, and CIANJ looks forward to working with him.”