Appellate Court Remands Landfill Case Finding NJDEP Exceeded its AuthorityNovember 25, 2014
Strategic Environmental Partners, LLC (“SEP”) purchased the Fenimore landfill (“Landfill”) in 2010 to install and operate a 10-megawatt solar power generating facility using photovoltaic panels. Approximately sixty acres of the 101 acre Landfill was used from the 1950’s-1977 as a solid waste landfill. The Landfill ceased operations but was never closed or capped. See, Strategic Environmental Partners, LLC v. New Jersey Department of Environmental Protection. SEP obtained an approval from the New Jersey Department of Environmental Protection (“NJDEP”) for its closure and post-closure plans for the Landfill. The plans required that SEP would close and maintain the Landfill pursuant to the Solid Waste Management Act (“SWMA”) and included other conditions. The plans provided that SEP could accept approved fill material onto the Landfill to create the appropriate conditions for the solar panels. SEP and NJDEP executed an Administrative Consent Order (“ACO”) in October 2011 memorializing the approved plans. If SEP violated the ACO, the NJDEP could take immediate action or seek relief to protect the public health, safety and welfare.
In May 2012, NJDEP determined that SEP had not complied with conditions of the closure plan and terminated the ACO. NJDEP directed SEP to cease receiving fill material. On May 21, 2012, SEP filed an Order to Show Cause (“OTSC”) to stop the NJDEP from taking any action. From 2011-2012, SEP accepted approved material onto the Landfill including ground gypsum board. In November 2012, the fill material was generating hydrogen sulfide, which gives off a “rotten egg” odor. Hydrogen sulfide is not on the list of New Jersey air toxics, has not been shown to cause cancer in humans, and has not been shown to have any long-term health effects. Hydrogen sulfide can cause eye, nose and throat irritations, headaches, nausea and can aggravate pre-existing respiratory conditions. In mid-November 2012, NJDEP began to receive complaints about the odor from individuals living near the Landfill. In December 2012, the Chancery Division judge ordered SEP to properly cover the Landfill within forty-eight hours and import extra soil to cover the exposed areas every day. NJDEP determined that SEP was in violation of the Court Order and began issuing penalties against SEP.
On December 31, 2012, two area residents filed an OTSC and complaint alleging that the odor emanating the Landfill constituted a nuisance. NJDEP was joined as a third-party defendant and filed an OTSC requesting permission to immediate seize control of the Landfill to handle the hydrogen sulfide. The return date was scheduled for June 28, 2013. On June 26, 2013, Governer Christie signed legislation (“Landfill Law”) to handle the six hunderd landfills that set procedures for the owners regarding odors emanating from the landfills, as well as requirements for corrective action. On the date the legislation was signed into law, the NJDEP Commissioner issue an emergency order seizing control of the Landfill pursuant to the new legislation asserting that he had the power to do this to abate the hydrogen sulfide violations, which posed an immediate threat to the environment. SEP requested a stay of the order, which NJDEP denied. SEP appealed to the Appellate Division.
The Appellate Division concluded that the Commissioner lacked the authority to issue an emergency order under the Landfill Law based upon the hydrogen sulfide standard. The Appellate Court observed that the statute only allows NJDEP to require SEP to take corrective action. If NJDEP determined that SEP violated the hydrogen sulfide standard, NJDEP could institute an action in the trial court for injunctive and other relief. The Landfill Law allowed only the court to order immediate action. The Appellate Court held that NJDEP was not authorized to enjoin SEP from receiving fill material or from seizing the Landfill without court approval. The case was remanded for further decision.
Obama Administration Announces $15 Million for Community Solar DevelopmentMay 2, 2014
The United States Department of Energy ("DOE") announced that it will offer $15 million to help communities develop multi-year solar plans to install affordable solar electricity for homes and businesses. The Obama Administration has set a goal of doubling renewable energy generation by 2020. The DOE's goal for its Solar Market Pathways funding opportunity is to help communities develop solar plans that focus on cutting red tape and building stronger public-private partnerships to deploy commercial-scale solar. Through its program, the DOE hopes communities will establish innovative financing mechanisms and launch creative community-based initiatives, such as shared solar programs. Shared solar programs will provide families and businesses with the opportunity to own, lease or purchase electricity from a share of a larger solar project, reducing the costs and allowing consumers access to renewable power.
The Solar Market Pathways program is part of the DOE's SunShot Initiative. The SunShot Initiative was introduced in February of 2011 and since then the Solar Office of DOE has helped fund 350 projects in the areas of photovoltaics, concentrating solar power, soft costs and system integration.
Notice of Roof Mounted Solar Panels Now RequiredFebruary 10, 2014
Governor Christie signed Assembly Bill A-266 (S-507) into law on January 17, 2014 to address health and safety concerns related to roof mounted solar panels. Such panels can present challenges to firefighters such as danger of electric shock and inhalation exposure from solar battery fumes.
The new law requires that notice of the existence of roof mounted solar panels be provided, particularly to firefighters so that they are alerted to the need for additional precautions when responding to a fire at such a building. All structures with photovoltaic roof mounted solar panels with the exception of one and two family residences must have an "identifying emblem" affixed to the building. All municipal agencies that issue permits for roof mounted solar panels must provide a copy of the permit to the local fire official within 10 days of issuance. Building owners of structures with roof mounted panels are similarly required to provide written notice to the local fire official.
Related Practice: Environmental & Land Use
New Jersey Governor Signs Solar LegislationJuly 25, 2012
On July 23, 2012, New Jersey Governor Chris Christie signed into law, S-1925, bipartisan legislation, which will increase the percentage of total power that utilities must derive from solar energy from two percent (2%) to four percent (4%) by 2028. The Division of Rate Counsel estimates that the law will save ratepayers almost $1.1 billion over the next 15 years. This legislation meets one of the goals of the Governor's 2011 Energy Master Plan.
Suppliers and providers of electricity are required to purchase Solar Renewable Energy Certificates (SRECs) in an amount that satisfies the annual RPS requirement. Thus, demand for SRECs is set by the Renewable Portfolio Standard ("RPS"). Under the bill, the 15-year RPS schedule is changed from a fixed megawatt requirement each year to a percentage of overall energy usage in New Jersey, ensuring that the level of solar obligation rises and falls with overall energy demand, which can vary due to economic factors as well as the success of energy efficiency and conservation programs.
According to the Office of the Governor, New Jersey "installed more solar capacity in the first quarter of 2012 than any other state, and led the nation in solar installations on commercial and industrial properties in 2011."
Final New Jersey Energy Master Plan ReleasedDecember 15, 2011
The Christie Administration issued its final new Jersey Energy Master Plan (EMP) on December 6, 2011. The Renewable Portfolio Standard (RPS) is a state requirement that mandates the increased production of energy from renewable energy sources, such as wind, solar, biomass and geothermal, to meet a specified goal. The EMP sets a 22.5% RPS target for 2021. In addition, the Administration hopes to achieve 70% of the state's electric needs from "clean" energy sources by 2030.
In its Executive Summary, it provides for the Administration's goals for the EMP:
1. Drive down the cost of energy for all customers;
2. Promote a diverse portfolio of new, clean, in-state generation;
3. Reward energy efficiency and energy conservation and reduce peak demand;
4. Capitalize on emerging technologies for transportation and power production; and
5. maintain support for the renewable energy portfolio standard of 22.5% of energy from renewable sources by 2021.
The EMP sets forth specific initiatives to achieve these goals. The Administration seeks to expand in-state electricity resources, create and implement cost-effective renewable resources, promote cost-effective conservation and energy efficiency, and support the development of innovative energy technologies.
The final EMP varies little from the draft that was issued in June 2011, which was folllowed by public hearings. The EMP has been met with criticism as it decreased the RPS target from 30% to 22.5% by 2021, something the Administration believes is more attainable. Additionally, the Administration includes nuclear, natural gas and hydroelectric facilities as sources of "clean" energy.
The EMP in its entirety can be found on the State of New Jersey's website at www.nj.gov/emp.
- 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