NJDEP Changes Remediation Investigation Public Notification RequirementsDecember 26, 2018
The New Jersey Department of Environmental Protection (“NJDEP”) announced amendments to the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”). These amendments include an update regarding Notification and Public Outreach. Specifically, NJDEP will require public notification within 14 days of initial field activities for a remedial investigation. N.J.A.C. 7:26C-1.7. Formerly, the notification was required after commencement of remedial action activities. For any case where a remedial investigation was initiated prior to August 6, 2018, the public notification is now due. However, there is a grace period.
NJDEP Announces Updated Pesticide Remediation Technical GuidanceDecember 21, 2018
The New Jersey Department of Environmental Protection (“NJDEP”) has issued updated technical guidance regarding pesticides. According to NJDEP, this guidance offers a more streamlined approach to the investigation, delineation, and remediation of historically applied pesticides (“HAP”) than the previous guidance, which was issued in 1999. This updated guidance only applies to HAP, which is defined as “any organic or inorganic chemical which has been and is no longer used for pest control, and that has been found to have long-lived residues and lasting health and environmental impacts. [HAP] does not include the manufacture, mixing, or other handling of these chemicals that result in a discharge. The pesticides of concern include, but are not limited to, arsenic, lead, DDT (and its metabolites, DDE and DDD), dieldrin, aldrin and chlordane.”
The guidance provides that if the sampling results indicate HAP are present at concentrations exceeding applicable standards, under the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”) and the Technical Regulations, then remediation must occur pursuant to the NJDEP rules and regulations. This guidance does provide for exceptions for agricultural property and active golf courses. For those sites, the remediation can be deferred until the property is no longer being used for either of those purposes.
NJDEP Posts Expired UST RegistrationsDecember 5, 2018
The New Jersey Department of Environmental Protection (“NJDEP”) announced that it has added a new report to its DataMiner records site. Specifically, the NJDEP has posted a report that provides a list of all underground storage tank (“UST”) facilities with expired UST registrations. NJDEP asserts that the report was created to ensure that UST facilities are properly registered, prior to fuel being delivered, to assist fuel suppliers. NJDEP can issue violations to fuel suppliers if they deliver fuel to a UST that is not properly registered. The report can be searched by county and is available in both PDF and Excel format.
NJ Expands MLUL's Definition of "Interested Party"August 17, 2018
In the case of Cherokee LCP Land, LLC v. City of Linden Planning Board, the NJ State Supreme Court has expanded the definition of “interested party” in the Municipal Land Use Law (MLUL) to include the holder of a tax sale certificate. The Court considered whether the holder of a tax sale certificate has standing as an “interested party” to challenge a planning board’s approval of a land use application for a neighboring property. The Court ruled that tax lienholders can have standing to challenge a planning board’s actions, however, this is “not in and of itself determinative to standing.” A tax lienholder must also show that its right to use, acquire, or enjoy property, is or may be affected by the planning board’s action. While the ruling stops short of giving all tax lienholders automatic standing, it is significant as it still increases the potential pool of challengers to a planning board’s decision. This arguably gives those with the most speculative of future interests in neighboring properties to use the MLUL to challenge the decisions of the municipal planning board.
Governor Murphy Signs Clean Energy LegislationMay 25, 2018
On Wednesday, Governor Phil Murphy signed bills related to the environmental and energy pledges he made during his campaign. The Governor signed A-3723, a Renewable Energy Bill, which provides new renewable energy standards, implementation of energy efficiency measures along with reforms related to the State’s solar programs and reinvigorating programs related to major offshore wind development. The Governor also signed into law S-2313 establishing a Zero Emissions Certificate program in order to maintain New Jersey’s nuclear power supply. In addition, the Governor signed an executive order to update New Jersey’s Master Energy Plan to provide for 100% clean energy by 2050. The Master Energy Plan is directed to be completed by June 1, 2019 and will incorporate the provisions of the new legislation.
DEC Revises Regulated Medical Waste Storage and Disposal RegulationsApril 13, 2018
The New York Department of Environmental Conservation (“DEC”) issued an enforcement discretion letter related to storage time limitation requirements for regulated medical waste containers, revising 6 NYCRR 365-1.2(b)(7) and 6 NYCRR 365-1.2(b)(8). Based upon concerns of small generators of regulated medical waste (“RMW”) such as dental offices, the DEC will revise provisions related to the removal of RMW and sharps from patient care or use areas to a room or area designated for RMW storage. The DEC will now require that RMW and sharps be removed when the container has reached the fill line indicated on the container, is otherwise filled, or the container generates odors or other evidence of putrefaction, whichever comes first. This allows small generators additional time as the regulations now provide specific hour and day requirements for the removal of these items.
Housing Decision Likely to Have Impact On All NJ MunicipalitiesMarch 9, 2018
On Thursday, March 8, 2018 a judge in Mercer County, New Jersey ordered Princeton Township and West Windsor Township to plan for more low- and middle-income housing within their boundaries than they had argued they needed to provide for. This ruling has been long anticipated by experts and officials on all sides of the affordable housing issue. In her decision, Superior Court Judge Mary Jacobson favored the methodology endorsed by housing advocates when she concluded that the state should add 155,000 affordable housing units by 2025. While this number is less than housing advocates had sought, it is more than the towns wanted.
While her decision applies to only the two Mercer County towns, other municipalities have been awaiting the ruling as they struggle with how much affordable housing they must provide under the New Jersey Supreme Court’s longstanding Mount Laurel cases and where it can and should be built. Kevin Walsh, Esq., with the housing advocate group Fair Share Housing Center that has been driving the litigations, said his group has reached settlements with approximately 190 municipalities on the number of housing units and where they will be built, leaving approximately 140 more to go. This latest ruling may now encourage additional settlements.
Corporate Officers Held Individually Liable for Violation of Environmental RegulationMarch 1, 2018
The Texas Supreme Court ruled that a corporate officer can be held liable for violating an environmental regulation if the regulation applies to a “person” and if he or she personally participated in the conduct. The defendant, the only member of the LLC that owned the property, failed to maintain and monitor a groundwater remediation system and violated the compliance plan associated with the property. Should this decision be adopted by other jurisdictions, it could have an effect on real estate transactions regarding contaminated property, as well as an effect on corporations and their officers. This decision, while in Texas state court, could signal an expansion of other state and Federal agencies that seek to hold corporate officers or members of an LLC personally liable for failure to comply with environmental regulations and compliance provisions.
Appellate Division Upholds the ExxonMobil Natural Resource Damage SettlementFebruary 15, 2018
The New Jersey Appellate Division rejected an appeal from Environmental Groups and a former State Legislator of the New Jersey Department of Environmental Protection’s two administrative consent orders (ACOs) with ExxonMobil resolving a lawsuit over Natural Resource Damages (NRD) assessed at its facilities in Linden and Bayonne. The settlement was controversial as the $225 million was far less than what certain experts had originally estimated the damages to be. The Appellate Division upheld the ACOs, which had been approved by the trial judge. ExxonMobil still remains responsible for all clean-up and remedial costs related to contamination at those facilities.
Related Practice: Environmental & Land Use
Attorney: Frances Stella
Category: Natural resource damages
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.
- Clean Air Act
- Clean Water Act
- Climate change
- Affordable Housing
- Due diligence
- Eminent Domain
- Floor hazard regulation
- Land Use
- Natural resource damages
- NJDEP Waiver Rule
- Site remediation
- Spill Act
- Toxic torts
- Vapor intrusion