NJDEP Announces Adoption of New Ground Water Remediation StandardsJanuary 18, 2018

The New Jersey Department of Environmental Protection (NJDEP) replaced the interim specific Ground Water Quality Standards with amendments to the Ground Water Quality Standards, which were published in the New Jersey Register this week. The new amendment provides specific ground water quality standards for 23 constituents and more stringent standards for three of them. NJDEP also amended Appendix A of the Discharge of Petroleum and Other Hazardous Substances rule to add perfluorononanoic acid (PFNA) as a hazardous substance. This amendment comes less than one month after the Appellate Division struck down NJDEP’s interim standards for PFNA.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Site remediation

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The New Jersey Appellate Division Invalidates NJDEP’s ISGWQC for PFNADecember 27, 2017

In 2014, the New Jersey Department of Environmental Protection (“NJDEP”) determined that perfluorononanoic acid (“PFNA”) was a “toxic” substance and posted Interim Specific Ground Water Quality Criteria (“ISGWQC”) describing PFNA as a perfluorinated compound with harmful human health effects. NJDEP did not follow the requirements for the issuance of a rule or regulation wherein the NJDEP action would be subject to public comment and posting in the New Jersey Register.  The NJDEP cited N.J.A.C. 7:9C-1.7(c), as its authority for this action, which provides that the NJDEP can establish interim specific criteria for ground water constituents, but also provides that the criteria must be replaced by specific criteria or a rule as soon as possible.  On March 14, 2017, NJDEP posted the ISGWQS on its website.  This was the first guideline or groundwater criteria related to PFNA that the NJDEP had issued.

In response to NJDEP’s attempted rule-making, the plaintiffs, Chemistry Council of New Jersey, Solvay Specialty Polymers USA, LLC, and Arkema, Inc., challenged the NJDEP’s reliance on N.J.A.C. 7:9C-1.7(c), arguing that the NJDEP violated the Administrative Procedure Act (“APA”).  The plaintiffs also argued that the ISGWQC was not supported by credible scientific evidence, thus the ISGWQC was “arbitrary, capricious, and unreasonable,” but the Appellate Division did not make a decision on that claim.

In its decision, the Appellate Division decided that pursuant to the APA, an administrative agency must “proceed in accordance with traditional rule-making requirements for a rule proposal, including provisions of notice and an opportunity to comment.”  The Appellate Division highlighted that the ISGWQC adopted by NJDEP was identified as an “interim criteria” and was posted on the NJDEP’s website on March 14, 2014, yet the measures remain in effect today.  Thus, the question for the Court was whether this is a valid exercise of authority or agency action in violation of the APA.  The Appellate Division, citing Metromedia, Inc. v. Div. of Taxation, found that the ISGWQC has all of the “earmarks of rule-making” as  it is a new standard for water quality, intended to apply universally, uniformly, and prospectively to the regulated community.  The Court considered that this was the first time NJDEP singled out PFNA as a constituent of ground water requiring attention and that the ISGWQC was in form and effect an administrative regulatory policy.  N.J.A.C. 7:9C-1.7(c)(2)(ii) limits the NJDEP’s authority and requires that any “specific criteria” shall be replaced as soon as reasonably possible by a rule.  The Court found that the interim criteria have become a de facto permanent regulatory scheme without complying with the APA, thus they are invalid.

The Appellate Division has provided the NJDEP with 30 days to seek Supreme Court review of its decision or to begin complying with the APA.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Site remediation

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Happy Thanksgiving!November 20, 2017




Related Practice: Environmental & Land Use

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New Jersey Approves Constitutional Amendment to Earmark Monies for Environmental Clean-UpNovember 8, 2017

Nearly 70 percent of New Jersey voters approved a ballot measure on Tuesday that will ensure that monies paid by polluters will be used to actually clean-up contamination and that future governors will not be able to redirect the funds. This issue was on the ballot as the result of New Jersey’s settlement with ExxonMobil.  Governor Christie settled with ExxonMobil for more than $225 million but a cap of funds for natural resource damages meant that the majority of the damages collected would not be used for the restoration and remediation of contaminated land.  The outcome of the ballot question and the resulting constitutional amendment will cause controversy in determining if and how much money will be allocated to a particular site, if any,  for remediation and restoration but the money will have to be used for environmental restoration and not directed to the general funds.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Natural resource damages

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Appellate Division Reverses DEP Decision Regarding Innocent PurchaserSeptember 22, 2017

The Appellate Division reversed a final agency decision by the New Jersey Department of Environmental Protection (“DEP”) regarding who and what is defined as a “person” under the Brownfield and Contaminated Site Remediation Act (“Brownfield Act”). Cedar Knolls 2006, LLC (“Cedar Knolls”) applied to the DEP to receive an innocent purchaser grant, which request was denied by DEP. DEP determined that Cedar Knolls did not qualify as a person under the Brownfield Act because of the way in which it acquired the property. The DEP denied the application stating that Cedar Knolls was not the same person who acquired the property prior to the 1983 date to become eligible for an innocent purchaser grant. Walter Higginson, who purchased the property in 1977, bequeathed the property upon his death to his wife through two different trusts. When those trusts terminated, the contents were transferred to their son and then to Cedar Knolls. Nine years after the transfer to Cedar Knolls, it applied for an innocent purchaser grant to assist with the clean-up of the contamination of the property.

The Appellate Division referred to the definition in the Industrial Site Recovery Act (“ISRA”) of a “change in ownership” finding that “although these definitional sections are not among the parts . . . that became the Brownfield Act, they nevertheless reflect the Legislature’s concerns with respect to changes of ownership at the time the innocent party grants were established.” ISRA provides that a “change in ownership” is not “a transfer where the transferor is the sibling, spouse, child, parent, grandparent, child of a sibling, or sibling of a parent of the transferee.” The Court found that, although Cedar Knolls is an LLC, because the transfers were made between family members that would not equate to a change in ownership, Cedar Knolls could qualify as a “person” under the Brownfield Act. The Court determined that the Legislature was more concerned with the “substance of ownership” and “continuity” rather than the precise legal form of the entity. Because this property was transferred within Mr. Higginson’s family and he would have otherwise qualified as an innocent purchaser, the Court reversed the DEP’s finding as to whether Cedar Knolls is a person to qualify as an innocent purchaser.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: ISRA, Site remediation

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NJDEP Updates Soil Remediation Standards for 19 CompoundsSeptember 21, 2017

The New Jersey Department of Environmental Protection (“NJDEP”) published revisions to the soil remediation standards for 19 contaminants. These updates bring the New Jersey standards more in line with the USEPA IRIS-based standards. Soil remedial standards for 11 compounds, including 7 PAHs, are now higher than previously. The updated soil remediation standards are operative as of September 18, 2017.

NJDEP also provided the following information regarding an error in the published update: A courtesy copy of the Notice of Administrative Change may be viewed at www.nj.gov/dep/rules/adminchg.html. Please note that the Notice contains errors for two contaminants. A Notice of Administrative Correction will be published in the October 16, 2017 New Jersey Register (a courtesy copy of the Notice of Administrative Correction can also be viewed at www.nj.gov/dep/rules/adminchg.html).

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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Automatic Approval Of Site Plan Application Not Thwarted By Board’s “Denial Without Prejudice”August 21, 2017

The validity of an automatic approval of an amended site plan application was affirmed by the Appellate Division in a procedurally complex series of consolidated cases. (Shipyard Associates, L.P v. Hoboken Planning Board; City of Hoboken v. Shipyard Associates, LP; Shipyard Associates, LP v. Hudson County Planning Board and Hudson County Board of Chosen Freeholders)

The developer, Shipyard Associates, was seeking an amended site plan approval to construct two additional buildings in a location that was originally earmarked for tennis courts, and it submitted its application to the planning board in October 2011. The City subsequently sued Shipyard  in March 2012 to enforce its (the City’s) purported rights concerning the tennis courts under a Developers Agreement.

Thereafter, on July 10, 2012, the Planning Board refused to consider the merits of Shipyard's amended application, although Shipyard's attorney and witnesses were present on the scheduled July 10 hearing date to present the application. Instead of hearing the application, the Board denied it "without prejudice," over Shipyard's objection, on the theory that the Board lacked jurisdiction to entertain the application while the City's lawsuit was pending. In turn, Shipyard sued the Planning Board, asserting that the Board's refusal to adjudicate the merits of its application within the statutory timeframe set forth in N.J.S.A. 40:55D-61, resulted in its automatic approval of the application.

The Appellate Division affirmed the lower court’s order that Shipyard’s application was entitled to an automatic approval. The Appellate court stated that in denying the application without prejudice, the Board was unlawfully granting itself an extension of time to hear the application, until the City's lawsuit was decided.  The court stated "[w]e cannot countenance such an end-run around the statute," citing South Plainfield Properties, L.P. v. Middlesex County Planning Board, 372 N.J. Super. 410, 417 (App. Div. 2004) . According to the court, the Board could have heard the application and granted it conditioned on the outcome of the City's lawsuit, (or denied it) but the Board could not lawfully refuse to hear the application, which is what it did here.

Another lesson from the case, said the court, it is that the rule of law is paramount and cannot be sidestepped to avoid deciding unpopular land use applications. The court stated “we have read the transcript of the July 10, 2012 Board hearing, in which objectors were interrupting the proceedings and shouting, ‘we want tennis courts.’ However, the Planning Board was obligated to hear Shipyard's application, no matter how controversial it was.”

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: Land Use

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NJDEP Publishes Updated Fees under SRRAJune 21, 2017

The New Jersey Department of Environmental Protection has increased its fees for the 2017-2018 fiscal year for annual remediation costs and permit fees. The new fees can be found at NJDEP’s website by clicking here.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: SRRA

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NJDEP Posts Compliance Notice for Properties with Institutional or Engineering ControlsApril 20, 2017

The New Jersey Department of Environmental Protection (NJDEP) is alerting responsible parties who have obtained No Further Action Letters and have an outstanding obligation to ensure the continued protectiveness of a remedial action that involves an institutional control or an engineering control. NJDEP has provided a link to the document that includes information regarding responsible parties, a list of non-compliant sites, steps to be taken to regain compliance, and the penalties for non-compliance. The information can be found at: www.nj.gov/dep/srp/enforcement/post_nfa_compliance_notice.pdf.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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NJ Supreme Court Finds Municipalities Must Address "Gap Years" Housing NeedFebruary 2, 2017

The New Jersey Supreme Court has ruled on the "gap years" (1999-2015) issue that has preoccupied municipalities and developers for almost two years and that effectively continued to prevent the provision of affordable housing from moving forward. The gap years are the years in which the Council on Affordable Housing (COAH) failed to adopt lawful regulations and fair share numbers. The NJ Supreme Court’s January 18, 2017 opinion makes clear that fair share need numbers must be calculated for the gap years. Thus most, if not all, municipalities will face higher fair share obligations that their fair share housing plans must address.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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