Blog Archive

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

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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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Happy Thanksgiving!November 21, 2016



Related Practice: Environmental & Land Use

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NJ Supreme Court Agrees to Hear Appeal on "Gap Year"September 12, 2016

On September 8, 2016, the New Jersey Supreme Court agreed to hear an appeal of the Appellate Division's decision on what has become known as the "gap year" issue. The gap years include the years 1999 through 2015, during which time COAH failed to adopt lawful regulations. The issue on appeal is whether the trial courts should establish fair share numbers reflecting the need for affordable housing that was generated during those years. Municipalities have argued that this need does not have to be considered as persons needing housing during those years have found housing elsewhere. They also do not want to be “penalized” for COAH’s failure to act.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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EPA Documents Severe Corrosion in Diesel USTs Unnoticed by Tank OwnersAugust 26, 2016

The United States Environmental Protection Agency (“EPA”) issued a report last month wherein it documented findings that the majority of diesel underground storage tanks (“USTs”) it reviewed showed signs of moderate or severe corrosion. In January and February of 2015, EPA investigated 42 UST systems in 40 locations across the United States. Of those 42 USTs, 24 had fiberglass tanks and 18 had steel tanks. 35 of the 42 UST systems or 83% showed moderate to severe corrosion. The report provides that “across the sample population, EPA observed corrosion occurring on all types of UST system metal components, including submersible turbine pump shafts, automatic tank gauge probe shafts, risers, overfill equipment like flapper valves and ball valves, bungs around tank penetrations, inner walls of tanks, and fuel suction tubes.” While the EPA could not identify a cause of this corrosion, it reports that multiple underlying factors and corrosion mechanisms may be responsible for the corrosion that UST owners have been reporting since 2007. In its press release, EPA also reported that fewer than 25% of UST owners were aware of the corrosion prior to the investigation. EPA is continuing to work with the scientific experts and the industry to determine the causes of the corrosion. In addition, EPA encourages owners of diesel USTs to check and investigate their tanks.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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Appellate Division Decides Affordable Housing “Gap Year” QuestionJuly 18, 2016

The Appellate Division of the Superior Court has ruled that "gap year" need cannot be calculated in the way that has been presented to the courts thus far. The gap years are the years 1999-2015, i.e., the years in which the Council on Affordable Housing (COAH) was non-functional. In March 2015 the New Jersey Supreme Court returned exclusionary zoning matters to the trial courts and directed them to establish the fair share numbers that COAH had failed to lawfully calculate for years. One fair share methodology proposed to the trial courts was a methodology prepared by David N. Kinsey, Ph.D, in conjunction with the Fair Share Housing Center. That methodology proposed to calculate the gap year need numbers as "prospective need," as COAH had done in the past. Most municipalities retained the firm of Econsult Solutions to calculate fair share numbers. Econsult proposed that the gap year need should not be considered. Judges hearing the exclusionary zoning disputes in Ocean County ruled that the Kinsey approach was correct and Ocean County municipalities appealed this decision to the Appellate Division.

In reversing the Ocean County trial court decision, the Appellate Division ruled that gap year need cannot be included within the prospective need portion of fair share obligations. The Appellate Division determined that prospective need can only include need based on projections, and cannot be retrospective.

Parties such as Fair Share Housing Center may request that the New Jersey Supreme Court hear an appeal of the Appellate Division decision, and reverse that court's rulings. The Appellate Division’s ruling was unanimous, however, meaning the state Supreme Court would have to decide whether to accept an appeal.

Despite the Appellate Division's gap year opinion, municipalities remain obligated to satisfy their "prior round" obligations (those fair share obligations COAH calculated for the 1987-1999 time period), their present need obligations, and prospective need obligations (the projected need for affordable housing arising over the next 10 years). The numbers must take into account current needs, which could be influenced by the slowdown of affordable housing development since 2000; a projection of the need for additional housing over the next decade; and any still-unmet needs assigned by COAH before 1999.

Affordable housing advocates assert that the present need component should now be recalculated to include some or all of the gap year need arguing that the gap year need should not be ignored simply because COAH did not do its job for 16 years.

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Limited Permit Extension Act PassedJuly 5, 2016

A very limited extension to the Permit Extension Act has been signed into law. The law extends the end date on approvals to December 31, 2016 (with up to an additional 6 months under the tolling provision) BUT ONLY in the 9 counties most impacted by “Super Storm Sandy”: Atlantic, Bergen, Cape May, Essex, Hudson, Middlesex, Monmouth, Ocean, and Union counties.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

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TSCA Reform Bill Now LawJune 22, 2016

President Obama signs the long awaited Toxic Substances Control Act reform bill into law after a more than three year effort to reform the 40 year old law. The Frank R. Lautenberg Chemical Safety for the 21st Century Act is a bipartisan law that will update the rules regarding chemicals and will provide the United States Environmental Protection Agency with greater authority to regulate toxic substances.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: TSCA

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LSRP Required for Child Care FacilitiesJune 13, 2016

The New Jersey Department of Environmental Protection (“NJDEP”) is no longer issuing Child Care Facility Approval Letters. Pursuant to NJDEP’s “Environmental Guidance for all Child Care and Educational Facilities,” a Licensed Site Remediation Professional must be retained, a Preliminary Assessment completed and a Response Action Outcome issued. The guidance can be found on NJDEP’s website.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: LSRP, Site remediation

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Congress Passes TSCA Reform BillJune 9, 2016

The Senate unanimously passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, named for New Jersey’s late Senator. This legislation will reform the Toxic Control Substances Act after nearly 40 years. President Obama is certain to sign the legislation, which will put into law legislation that has been working its way through Congress since before Senator Lautenberg’s death three years ago.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: TSCA

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Earth Day 2016April 22, 2016

Related Practice: Environmental & Land Use

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EPA Announces Contracts to Small BusinessesMarch 1, 2016

The United States Environmental Protection Agency (“EPA”) announced contracts to small businesses for innovative technologies to protect the environment through its Small Business Innovation Research (“SBIR”) Program. Among the eight contracts is Aspen Products Group, Inc. in Massachusetts for development of a filtration device to control emerging contaminants in drinking water supplies and Environmental Fuel Research in Philadelphia for developing a system to produce biofuel from grease trap waste. According to Dr. Thomas A. Burke of the EPA, “The green technologies that these SBIR companies are developing will help us address some of today’s most pressing environmental and public health issues.”  The contracts announced by the EPA on Monday provide $300,000.00 for Phase II development and commercialization of the products.  The small businesses were previously awarded Phase I contracts and provided with up to $100,000.00 following the submission of research proposals.

According to the EPA, it is one of 11 federal agencies that participate in the SBIR program, which was enacted in 1982 to strengthen the role of small businesses in federal research and development, create jobs and promote U.S. technical innovation. To be eligible to participate in the SBIR program, a company must be an organized, for-profit U.S. business and have fewer than 500 employees.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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Affordable Housing - Discovery of Economists on Housing Numbers Includes So-Called “Gap” YearsFebruary 24, 2016

The Mt. Laurel judge in Ocean County has ruled that Ocean County municipalities DO have to provide housing for the so-called "gap years" -1999-2005- when there were no affordable housing numbers or Third Round rules by which to implement the affordable housing obligation. If the court had agreed with the municipalities, who argued they did not have to account for those gap years, the number of affordable units municipalities would now be responsible for providing could have been reduced by as much as 60%. This decision, therefore, is helpful to the providers of housing and not helpful to municipalities.

While the decision is from Ocean County and not binding on other counties, the Mt. Laurel judges in other counties have been following developments in their sister counties. For example, the courts in Essex County and Somerset/Warren/Hunterdon Counties have each consolidated  for discovery purposes the declaratory judgment actions filed by municipalities in their counties.  Each court has also  set forth a detailed case management order for obtaining discovery from economists on the methodologies and calculations used to arrive at the regional and municipal fair share housing need and allocation numbers, including those for the “gap” years, to be applied to the municipalities in each county. Discovery of the economists is currently scheduled to end in June 2016. Once these numbers are established, municipalities then have the task of accommodating them. No word on how long they will be given to do that!

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: Affordable Housing

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Check Your Permits Under The Permit ExtensionFebruary 24, 2016

Now is (passed) the time to check your land development approvals if you haven’t done so!!.The New Jersey Permit Extension Act (PEA) of 2008 was amended several times since its original adoption in order to extend many land development approvals, but these approvals are now expiring. Eligible permits and approvals that were originally scheduled to  expire between January 1, 2007 and June 30, 2007 are extended until the corresponding date in 2016. For example, if an eligible permit according to the Act expired on April 1, 2007, the permit now expires on April 1, 2016. Eligible permits and approvals that expired or were scheduled to expire between July 1, 2007 and June 29, 2016 are extended until June 30, 2016. 

As an added complication, the New Jersey Department of Environmental Protection (NJDEP) will not authorize any Freshwater Wetlands approvals more than a total of 10 years from the original issuance date.  Therefore, any Freshwater Wetlands approvals that are covered by the PEA may need either an extension or a new application to the NJDEP.  

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

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Legislation Proposed to Study Barnegat Bay’s Water QualityFebruary 3, 2016

Senator Bob Smith proposed a new bill in an effort to help curb the pollution of Barnegat Bay. S765 would require the New Jersey Department of Environmental Protection (“DEP”) to conduct a study and prepare a report that evaluates the water quality of Barnegat Bay to determine whether the bay is impacted in violation of the Clean Water Act. The study shall further assess whether the waters of the bay meet New Jersey water quality standards and will focus on impairments from phosphorous, nitrogen and excessive sediment. The bill provides that DEP shall evaluate the efficacy of controls on point sources that discharge into the bay and tributaries and practices to control nonpoint source pollution in the watershed. DEP will make recommendations for Legislative action to restore the water quality of the bay. The study and report findings will be forwarded to the Legislature.

Governor Christie has vetoed similar legislation in the past and some claim that has resulted in deteriorating water quality in Barnegat Bay.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Clean Water Act

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Affordable Housing Numbers and Municipal Compliance STILL in LimboJanuary 12, 2016

In March 2015, New Jersey's Supreme Court ordered that NJ abandon the little-used and much maligned “growth share” formula the Council on Affordable Housing (COAH) had devised for calculating municipalities' affordable-housing obligations, and revert to the so-called Second Round formulas the state used in the 1980s and '90s. It also decreed that the Superior Court - not COAH - oversee implementation of municipal fair share housing obligations within each vicinage. Since March 2015, municipalities and the courts have been wrestling with what the number of affordable housing units that must be created should be, and how municipalities shall comply.

A new but disputed report contends that New Jersey's 565 municipalities must zone for the creation of 37,000 low-income housing units by 2025 - far fewer than projected by a key advocacy group - to meet the state Supreme Court's latest directives for implementing the Fair Housing Act. The figure in the report, conducted by the Philadelphia planning firm Econsult Solutions on behalf of more than 200 New Jersey municipalities, is far below the nearly 202,000 units calculated in July by the Fair Share Housing Center, based in Cherry Hill, as the statewide obligation. If the Appellate Division or Supreme Court does not approve or reject certain calculations used in the Econsult or Fair Share Housing reports, Superior Court judges would decide each municipality's obligation on a "case-by-case basis," perhaps calling Econsult and Kinsey as expert witnesses.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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NJDEP Expands Blue Acres Program to LindenNovember 5, 2015

New Jersey Department of Environmental Protection Commissioner (“NJDEP”) Bob Martin announced last week that the Superstorm Sandy Blue Acres Buyout Program would be buying three homes in Linden, the first ones in that town.  The Blue Acres Buyout Program was launched in 2013 to purchase homes from willing sellers at pre-Sandy market value in areas that are prone to repetitive and catastrophic floods.  The structures are then demolished and the areas preserved for open space or recreation areas.  According to NJDEP, buyouts are underway in 12 municipalities in six counties.  Offers have been made to 695 homeowners, 526 have accepted and there have been closings completed at 395 properties, 259 of which have been demolished.  More than 40 homes in Linden have been identified for possible buyouts.

The funding for the program has mostly been through the Federal Emergency Management Agency’s Hazard Mitigation Grant Program with some funds from the Department of Agriculture.  The purchases in Linden and also those in Old Bridge are the first buyouts that are being funded entirely by the Department of Housing and Urban Development (“HUD”).  HUD Regional Administrator for New Jersey and New York noted that “after the devastation of Sandy, we have no choice but to acknowledge that climate change is a reality, and programs like New Jersey’s Blue Acre Buyout must be part of our nation’s collective preparation.”

NJDEP has an implementation team for the Blue Acres program where staff works closely with the sellers to process their applications and help them through the process.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Climate change

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USEPA Proposes New Rules for Pharmaceutical Waste ManagementSeptember 28, 2015

The United States Environmental Protection Agency (“USEPA”) has released proposed new rules that will provide standards to ensure that the management of hazardous waste pharmaceuticals is safe and workable within the healthcare setting. The Management Standards for Hazardous Waste Pharmaceuticals was published today in the Federal Register and proposes a tailored, sector-specific set of regulations for the management of hazardous waste pharmaceuticals by healthcare facilities (including pharmacies) and reverse distributors.  The USEPA believes that this rule will assist the healthcare industry with the management of hazardous waste pharmaceuticals, which are historically difficult to regulate under the Resource Conservation and Recovery Act (“RCRA”).  Presently, healthcare workers are generally unaware of the RCRA hazardous waste management requirements such that pharmaceutical waste is often handled as municipal waste or medical waste.  According to EPA, this proposed rule would streamline the current regulations governing these wastes, ensuring that larger quantities of hazardous pharmaceutical wastes are managed properly. Additionally, the rule proposes a tailored set of management standards specifically designed to reduce the complexity of the RCRA hazardous waste regulations for hazardous waste pharmaceuticals. It streamlines the collection and handling requirements for widely-dispersed hazardous wastes and facilitates their inclusion in the hazardous waste management system.

Under the proposed management standards, generators of hazardous pharmaceutical wastes will manage their hazardous waste pharmaceuticals under subpart P of part 266 in Title 40 of the Code of Federal Regulations (CFR), instead of the standard RCRA generator regulations found in part 262.  According to USEPA, compared to the hazardous waste generator regulations, healthcare facilities operating under the new standards will have the following benefits:

  1. A healthcare facility will not become a Large Quantity Generator, with all the associated requirements, when it generates more than 1 kg of acute hazardous waste pharmaceuticals in a month;
  2. A healthcare facility will not have to comply with the satellite accumulation area regulations, which are a poor fit for healthcare facilities;
  3. The facility will not need to specify hazardous waste codes on manifests;
  4. The facility will be able to accumulate hazardous waste pharmaceuticals on site without a RCRA permit for 365 days, an increase of 275 days over the current generator regulations; and
  5. The facility will have basic training requirements.  

Additionally, the proposed standards are tailored to how pharmaceutical reverse distributors operate and will replace the standard generator regulations for the accumulation and management of hazardous waste pharmaceuticals at pharmaceutical reverse distributors. 

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: RCRA

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NJ Counties Settle with EPA Over UST ViolationsSeptember 25, 2015

Monmouth County and Middlesex County entered into separate settlement agreements with the United States Environmental Protection Agency (“EPA”) related to the violation of federal laws for the operation and maintenance of underground storage tanks (“USTs”). Monmouth County will install a 20,000 gallon aboveground storage tank to replace three USTs at a reclamation center in Tinton Falls.  EPA charged that Monmouth County failed to keep adequate records of release detection and failed to conduct monthly monitoring of the USTs.  Monmouth County will also pay $3,660.00 in penalties for past violations.  This penalty was reduced because of the cost of the installation of the AST, which is approximately $275,000.00.

Middlesex County will pay $51,100.00 in penalties related to violations at the county’s UST facilities.  The penalties are for failure to keep adequate records of release detection monitoring, failure to keep adequate records for pressurized piping, and failure to perform annual tests of automatic line leak detector systems.  As part of the settlement, Middlesex County has installed electronic release detection monitoring equipment to ensure future compliance.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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Christie Administration Seeks a Stay in EPA’s Clean Power PlanSeptember 3, 2015

New Jersey Department of Environmental Protection (“DEP”) Commissioner, Bob Martin, sent a letter to United States Environmental Protection Agency (“EPA”) Administrator Gina McCarthy formally requesting EPA to stay and reconsider its Clean Power Plan as it relates to the State of New Jersey.  The Christie Administration argues that the Clean Power Plan is an overreach by the federal government and is particularly unfair to the State of New Jersey, a state that has already made significant reductions to carbon emissions.  The Obama Administration announced the Clean Power Plan, under Section 111(d) of the Clean Air Act, on August 3, 2015, stating that it is a historic and important step in reducing carbon pollution from power plants in an effort to take action on climate change.  The Clean Power Plan establishes national standards to address carbon pollution from power plants.  The EPA proposed the rule in June of 2014 and it received more than 4.3 million public comments. 

The Christie Administration contends that New Jersey has already reduced its carbon dioxide emissions from its power sector by 33 percent, which is more than the 32 percent reduction goal that EPA set for the entire nation by 2030 under the Clean Power Plan.  Commissioner Martin, in his letter to Commissioner McCarthy, states that “consistent with our 2011 Energy Master Plan, New Jersey has already promoted cleaner and more efficient energy.”  In addition to the provisions under the Energy Master Plan, the Christie Administration is committed to driving down energy costs, promoting a diverse portfolio of clean, sustainable in-state power, promoting energy efficiency and conservation, capitalizing on new technologies and achieving a robust renewable energy portfolio standard.

Attorneys general for fifteen other states petitioned a federal court in Washington last month to block the new rules for power plants.  They requested a ruling by September 8th, one year before the states need to submit compliance plans to EPA.

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Government Seeks Hefty Sentence for Concealment of Damaged PipelineJune 2, 2015

The United States Government sought jail time as well as recovery of more than $19 Million in damages for a 2011 oil spill in Wisconsin. Randy Jones, an Onshore Corrosion Coordinator for Shell Pipeline Company L.P. (“Shell”), was responsible for the operation of a pipeline that was used to deliver jet fuel oil to the airport terminal at General Mitchell International Airport in Milwaukee, Wisconsin.  In January of 2011, Mr. Jones became aware that the cathodic protection system for the pipeline was not working.  Instead of reporting this problem and repairing it, Mr. Jones concealed the damage and generated false monitoring data.  The pipeline continued to operate without protection and the pipeline corroded, causing a major jet fuel spill.  The jet fuel flowed out of the underground drainage pipes and culverts into Wilson Park Creek and pooled on the airport grounds, melting asphalts.  Shell estimates that over 9,000 gallons of jet fuel spilled out of the pipeline before they were able to locate and stop the leak.  The government estimated the damages to be approximately $19.3 million. 

Mr. Jones admitted to his actions and cooperated with the government.  The federal judge followed the recommendation of the probation department and sentenced him to probation instead of the jail time recommended by the government.  The United States Environmental Protection Agency and the Department of Justice have been seeking stronger sentencing for cases involving willful violations of the law.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Pipeline

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EPA and US Army Corps of Engineers Finalize Clean Water RuleMay 28, 2015

Along with Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy, United States Environmental Protection Agency (“EPA”) Administrator Gina McCarthy announced the finalization of the Clean Water Rule, which is designed to protect the streams and wetlands that form the foundation of the country’s water resources from pollution and degredation. The Rule seeks to clarify and more fully define which water bodies are “waters of the United States” subject to the regulations under the Clean Water Act  and thus EPA’s jurisdiction. The final rule more fully defines water bodies such as  tributaries that impact the health of downstream waters, provides certainty in how far safeguards extend to nearby waters and protects prairie potholes, Carolina and Delmarva bays and other regional waterways that may impact downstream waters, among other highlights.  According to EPA, approximately 117 million Americans get drinking water from streams that lacked clear protections prior to this Rule.  The protections for streams and wetlands were confusing and complex following Court rulings in 2001 and 2006 and a lack of clear definition of navigable water subject to regulation by the EPA.  As Administrator McCarthy stated “protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms and warmer temperatures.”  The government agencies held more than 400 meetings with stakeholders across the country and reviewed over one million public comments, utilizing the latest science, including a report that summarized more than 1,200 peer-reviewed, published scientific studies, which supported the position that small streams and wetlands play an integral role in the health of larger downstream water bodies.

This Rule does not create any new permitting requirements and maintains all previous exemptions and exclusions.  The Rule only defines the types of water bodies that are deemed subject to regulatory scheme under  the Clean Water Act.  The Rule does not seek to regulate ditches, groundwater, shallow subsurface flows or tile drains.

The Clean Water Rule will become effective 60 days after publication in the Federal Register.

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EPA Proposes to Remove New Jersey Crown Vintage Landfill from Superfund ListMay 6, 2015

The United States Environmental Protection Agency (“EPA”) is proposing to remove the Crown Vantage Landfill Superfund site in Alexandria Township, New Jersey from the Superfund List. A small portion of the landfill sits on the bank of the Delaware River.  Crown Vantage was used as a landfill from the 1930s to the early 1970s for disposal of waste from the Curtis Specialty Papers mill as well as Riegel Paper Company.  The 10-acre landfill was contaminated with semi-volatile organic compounds, polychlorinated biphenyls (PCB) and other pollutants.  EPA removed approximately 2,450 drums and waste from the site and backfilled the site.  A wall was constructed between the site and the river, along with fencing and signs to keep people from entering the site.  The EPA implemented deed restrictions, which prevent activities that can disturb the site and prohibit future on-site construction.  The EPA will review the site every five years to assure that it remains protective of human health and the environment

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Superfund

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Happy Earth Day!April 22, 2015

Related Practice: Environmental & Land Use

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NJ Appellate Division Affirms $1.6 Million Asbestos VerdictApril 3, 2015

In a per curium opinion, the New Jersey Appellate Division affirmed an $1.6 million jury award for damages based upon exposure to cosmetic talc. Steven Kaenzig and his wife filed a lawsuit against, among others, Whittaker Clark & Daniels (“Defendant,” all other defendants were dismissed or settled) for negligence and products liability for its failure to warn that its talc contained asbestos.  The Defendant supplied raw talc to Shulton, Inc., the company that owned the facility where asbestos contaminated talcum powder was produced.  Mr. Kaenzig’s father worked at the facility from the time Mr. Kaenzig was born until 1975, when the facility was moved to Tennessee.  Mr. Kaenzig claimed exposure when his father would come home and play with him prior to showering and because his father’s clothes were cleaned in their home.  He testified that he was not exposed to asbestos at any point after his father stopped working at the facility.  

During the trial, the Defendant made several evidentiary motions.  In addition, the Defendant sought to exclude the testimony of the Kaenzigs’ expert as a “net opinion.”  Following the trial, the Defendant sought a judgment for the Kaenzigs’ failure to prove their case.  The trial judge denied Defendants’ motions and the Defendant appealed.  The Appellate Division upheld the contested trial judge’s rulings, finding that the jury instructions were acceptable to handle the evidentiary issues and that there was no abuse of discretion as to the plaintiffs’ expert’s testimony.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Asbestos

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DEP Revises Guidance for IECs and Soil Investigation and RemediationMarch 27, 2015

The New Jersey Department of Environmental Protection (NJDEP) announced revised Technical Guidance for Immediate Environmental Concerns (IECs) incorporating updates from the May 7, 2012 Technical Requirements for Site Remediation.  These changes include a new section on monitoring requirements for engineered systems and instructions for the annual monitoring and maintenance reports for IECs.  The revisions also include changes to the Geographic Information System mapping procedures for potable wells and vapor intrusion.  The Licensed Site Remediation Professional should verify the site location on NJ-Geoweb when the IEC is identified.  The revised soil technical guidance makes minor edits to the prior documents.

The revised technical guidance documents can be accessed at the Site Remediation Webpage.  NJDEP will allow for a six-month phase in period between the time the guidance is issued and the time it should be used.

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Settlement in IBM Vapor Intrusion Case in Upstate New YorkFebruary 19, 2015

In 2008, residents and business owners in Endicott, New York filed a lawsuit against IBM claiming damages of $100 million for contamination of the soil and groundwater in the town allegedly resulting from IBM’s former microelectronics plant.  The Plaintiffs claimed that the former operations resulted in contamination from trichloroethylene (“TCE”) of soil and groundwater.  The impacted groundwater plume extent is about 300 acre off-site.  This has been a closely watched case because IBM has already mitigated impacts by installing vapor mitigation systems in more than 300 homes and there is limited precedent or guidance on the factors for calculating damages allegedly caused by vapor intrusion.  No details of the settlement were released.  IBM also confirmed to the public it would continue the remedial activities. 

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Vapor intrusion

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EPA Issues New Definition of Solid Waste RuleFebruary 2, 2015

The Final Rule regarding the Definition of Solid Waste was published in the January 13, 2015 Federal Register.  On December 10, 2014, the United States Environmental Protection Agency (“EPA”) announced a final rule revising the 2008 definition of Solid Waste.  Among the changes, the rule addresses regulatory gaps in the 2008 rule by requiring off-site recycling at a facility with a RCRA permit or verified recycler variance.  This will provide both EPA and the states with the ability to verify that these facilities have the proper personnel, adequate financial assurance and proper emergency response preparedness.  The variances will also allow the public to participate and be aware of recycling facilities in their neighborhoods.  The final rule revises the definition of legitimate recycling and it includes a targeted remanufacturing exclusion for certain higher-value hazardous spent solvents, which allows manufacturers to reduce the use of virgin solvents resulting in energy conservation and reduced greenhouse gas emissions.

The final rule is effective July 13, 2015.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Energy, RCRA

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NJ Supreme Court Rules No Statute of Limitations in Spill Act CasesJanuary 28, 2015

In a closely watched case, an unanimous New Jersey Supreme Court reversed the Appellate Division’s ruling that a six-year statute of limitations should apply to Spill Act cases holding that there is no statute of limitations to bar contribution claims for the cost of remediation. The Supreme Court summarized the history of the Spill Act and the Legislature’s intent to encourage and fund the clean-up of contaminated sites in New Jersey.  The Spill Act was enacted as a law which provided that the New Jersey Department of Environmental Protection (“NJDEP”) would be responsible for the clean-up of contaminated sites.  The law was amended to provide that responsible parties can seek contribution from the dischargers of hazardous substances and other responsible parties for clean-up costs.  Justice LaVecchia wrote the opinion and concluded that the language of the Spill Act provides solely for three specific enumerated defenses to a Spill Act claim: an act or omission caused solely by war, sabotage, or God, or a combination thereof.  Justice LaVecchia further opined that the Legislature had amended the Spill Act several times and failed to include a defense of statute of limitations.  The Supreme Court, refraining from stepping into the preview of the Legislature, based this unanimous decision on the fact the Legislature “could not have intended to permit its imposition of contribution liability on culpable dischargers to be frustrated by the imposition of a general and prior enacted, but unreferenced, statute of limitations.”

This holding reinforces the history of the Spill Act and the understanding that no limitations period restricts contribution claims against responsible parties.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Spill Act

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Governor Cuomo Vetoes Brownfields LegislationJanuary 16, 2015

On December 29, 2014, Governor Andrew Cuomo vetoed a bill that would have extended the expiration of the Brownfield Cleanup Program from December 31, 2015 to March 31, 2017.  Earlier in 2014, the Governor and legislature tried to reach an agreement to reform the program.  When that failed, the legislature passed a bill, which would extend the expiration date of the program.  Governor Cuomo announced that since the budget for 2014-15 had already been passed and there were not monies included to fund this measure, he was vetoing it.  He further announced that he would again attempt to reform the program to include it in the 2015-16 budget.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Brownfields

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Happy New Year!December 30, 2014

Related Practice: Environmental & Land Use

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Permit Extension Act - One More YearDecember 29, 2014

The Permit Extension Act was signed into law by Governor Christie.  The newly enacted law is a 1 year statewide extension to the "Permit Extension Act of 2008."  This extension came down to the wire and the one year extension instead of two years was a compromise.  One should not expect any additional extensions.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

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Rubright Named Associate of the QuarterDecember 19, 2014

Susan R. Rubright, member of Brach Eichler's Environmental & Land Use and Real Estate practice, has been named "Associate of the Quarter" for the 3rd quarter of 2014 by Metropolitan Builders and Contractors Association.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Land Use

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Governor Cuomo Bans Hydraulic Fracturing in New YorkDecember 18, 2014

Following years of debate in New York State and the results of a health study, Governor Andrew Cuomo has banned hydraulic fracturing, often referred to as “fracking,” in New York.  New York’s acting state health commissioner noted significant public health risks with concerns of air and water pollution.  The debate in New York has been extremely heated with citizens along the Pennsylvania border in favor of fracking as a way to increase jobs and help the economy in that area.  Although fracking has gone on for a long time, this issue has drawn major attention over the past couple of years with counties, cities and towns legislating against fracking, including in New York State.  The New York Court of Appeals sided with towns, which had banned fracking, earlier this year.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Fracking

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Drafting of Affordable Housing Regulations Could Go Back to the CourtsDecember 8, 2014

The state Supreme Court will hear arguments on January 6, 2015 that will decide whether the Council on Affordable Housing (COAH) or the courts gets to write the rules that govern affordable housing regulations. COAH, whose members are appointed by the governor, has been tasked with  writing affordable housing rules but it missed a state Supreme Court deadline to approve new guidelines.  Fair Share Housing Center then filed suit demanding that the courts take over the process.  COAH operates within the executive branch. A change in venue from COAH to the courts could return the process to the court system that originally said affordable housing was a constitutional right.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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Happy Thanksgiving!November 25, 2014

Related Practice: Environmental & Land Use

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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.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Solar

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COAH Deadlocked on Affordable Housing RulesOctober 22, 2014

The Council on Affordable Housing (COAH) was unable to adopt the proposed affordable housing regulations for the period 2014-2024 that were on its October 20, 2014 agenda.  Both the regulations and the timing for adoption were in response to a directive from the New Jersey Supreme Court and were on the Board's October 20, 2014 agenda for the adoption.  The COAH Board was deadlocked at 3-3 on the issue of whether to adopt the regulations as proposed.  After the vote failed, the Board took a short recess into executive session.  After it emerged, it voted to adjourn the meeting.  No further action was taken on the issue of the proposed regulations.  The result - the dysfunction continues and New Jersey's affordable housing policies remain as unsettled as ever.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: COAH, Affordable Housing

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California Bans Plastic BagsOctober 2, 2014

Governor Jerry Brown signed into law a measure that will ban plastic bags used by customers at places such as grocery stores and pharmacies in the State of California.  While towns and cities across the country have implemented similar bans on a local level, California is the first state to impose such restrictions state-wide.  Customers will be able to bring their own canvas bags or purchase paper bags for no less than 10 cents per bag.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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NJ Supreme Court Decision Requires Modification of Arbitration Clauses in ContractsSeptember 25, 2014

The New Jersey Supreme Court has ruled that an arbitration provision in a services contract, such as those for contractors and consultants, must specifically contain language to advise the customer that he or she is waiving the right to go to court.  An arbitration clause will not be binding unless it clearly and unambiguously advises the customer that he or she will have no recourse from a court of law.  In Atalese v. US Legal Services Group, L.P., the New Jersey Supreme Court reversed a lower court's enforcement of an arbitration provision in a contract Plaintiff entered into with the Defendant to provide debt adjustment services.  The Court held that an arbitration provision must be the product of mutual assent and that an average consumer may not be aware that arbitration is a substitute for handling matters in a court of law.  Thus, the Court held that the arbitration clause will be acceptable when it uses plain language that is understandable to a reasonable customer.

It is essential to update and revise arbitration clauses in contractor and consultant agreements to ensure that they contain specific language waiving the parties' rights to judicial intervention.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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DEP Settles With Occidental in Passaic River LitigationSeptember 15, 2014

The final remaining party in the NJDEP Passaic River litigation with potential responsible parties, Occidental Chemical Corp. ("Occidental"), has been tentatively resolved.  The Attorney General and NJDEP Commissioner, Bob Martin, announced today the proposed settlement.  The settlement is subject to a public comment period and review.  If the settlement is approved, Occidental will pay $190 million to resolve the lawsuit.  The settlement proceeds are to reimburse the State for past cleanup and removal costs, natural resource damages and other related costs.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Natural resource damages

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GOVERNOR Conditionally Vetoes Statewide Non-residential COAH Moratorium Bill, Calling For Overall Affordable Housing ReformSeptember 15, 2014

Governor Christie has conditionally vetoed the Statewide non-residential COAH moratorium bill, A1907/S1011 (Burzichelli/Lesniak). This bill would have extended the moratorium on development fees (the fee of 2.5% of assessed value on new nonresidential development) until January 2015. In his veto message, the Governor called on the Legislature to achieve "broad affordable housing reform that is simple, direct, and predictable" and said that the non-residential fee is "a component of the existing patchwork of affordable housing laws" that "cannot be considered in isolation." The governor proposed legislation that mirrors an earlier affordable-housing compromise that passed the state Senate in 2010. That bill would have replaced the state Council on Affordable Housing with a requirement that developers set aside 10 percent of their units for low- and moderate-income families. Builders would have been allowed to meet the requirement through rehabilitation of older units, construction of new units at a different site or payment of a 2.5 percent fee. Commercial development would not have been charged a fee, unlike under current COAH rules.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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New Jersey Governor Vetoes Fracking Bill Banning Waste ProcessingAugust 11, 2014

On Friday, Governor Chris Christie vetoed legislation, which would have banned New Jersey from treating or storing waste products from hydraulic fracturing. The Governor banned a similar measure two years ago.  There is no hydraulic fracturing in New Jersey but it does take place in Pennsylvania and waste has been transported to New Jersey from there.  The Governor insists that this legislation is “an unconstitutional restraint on interstate commerce” because it bans waste from any state and that the bill is intended to “embargo out-of-state waste” in violation of the United States Constitution.  Critics claim that handling the waste in New Jersey is a threat to the State’s waterways and that the Governor is positioning himself for the 2016 Presidential race at the expense of New Jersey citizens.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Fracking

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North Carolina Lawmakers Work Fast in Wake of Supreme Court DecisionJuly 8, 2014

North Carolina's Governor signed in to law a measure that provides that North Carolina's statute of repose does not apply to lawsuits or claims regarding personal injury or property damage from groundwater contamination.  The United States Supreme Court recently held that North Carolina's statute of repose barred a CERCLA claim against CTS Corp. for groundwater contamination.  There was concern among North Carolina lawmakers that the Supreme Court's decision would bar military families from bringing actions for damages as the result of groundwater contamination at Camp Lejeune.  Health officials estimate that more than 1 million people may have been exposed to tainted groundwater at Camp Lejeune.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: CERCLA

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New York Local Zoning Law on Fracking Bans Are Not PreemptedJuly 1, 2014

The New York State Court of Appeals decision in Wallach v. Dryden (N.Y., No. 131, 6/30/14) will significantly curtail natural gas fracking operations in the New York State portion of the Marcellus Shale.  The ruling by a large majority of the Court affirmed that local zoning law banning fracking are not preempted by the New York State Oil, Gas and Solution Mining Law.  Each town or city can now ban natural gas drilling by fracking through the use of zoning laws as an estimated 170 towns have done already.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Fracking, Zoning

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New York Legislature Extends Brownfields Cleanup LawJune 27, 2014

The New York Legislature passed a bill, which would extend the Brownfields cleanup program until March 31, 2017. The law is set to expire in 2015.  The Governor and legislature had hoped to pass comprehensive reform of the Brownfields program, which provides tax credits for the cleanup of certain contaminated properties to stimulate redevelopment.  When it became clear that reform would not get accomplished during this session, the Legislature sought a stopgap measure.  The Governor still needs to sign the Legislation into law.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Brownfields

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Pennsylvania Files Lawsuit For MTBE PollutionJune 27, 2014

The State of Pennsylvania is the latest to file a lawsuit against oil refiners and distributors for pollution of the state’s groundwater with methyl tertiary butyl ether (“MTBE”).  ExxonMobil and BP are among the many companies sued for the costs associated with MTBE spills over the past twenty (20) years.  Many other states and cities have filed similar suits across the country.  There is current litigation regarding MTBE contamination in New Jersey in the federal court.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: MTBE

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The Second Circuit Orders New Trial For Defendants in Asbestos Abatement CaseJune 13, 2014

On June 10, 2010 a federal grand jury in the Northern District of New York returned an indictment against Certified Environmental Services, Inc. (“CES”), Nicole Copeland, a former CES Technical Services Manager (“Copeland”) and Elisa Dunn, a former CES air monitor and field supervisor (“Dunn”). The indictment charged the defendants with impeding the regulatory functions of the United States Environmental Protection Agency (“EPA”) and the Occupational Health and Safety Administration (“OSHA”), violation of the Clean Air Act, the Toxic Substances Control Act (“TSCA”) and the mail fraud statute.  Substantively, the government charged the defendants with aiding two asbestos companies with performing illegal asbestos removals.  The asbestos companies engaged in “rip and run” removals, in which asbestos is stripped and removed dry, often without the safeguards needed to ensure that the surrounding area is not contaminated.  These removals are cheaper to perform, but require an abatement contractor to obtain clearance of its air monitoring results from a company like CES. 

At trial, the jury found CES, Copeland and Dunn guilty of all of the counts against them.  The defendants appealed the convictions and sought a new trial based upon (1) improper “bolstering”of Government witnesses based upon those witnesses’ cooperation agreements; (2) the exclusion of evidence related to the defendants’ good faith; (3) the Government’s belated production of certain discovery material in violation of Brady v. Maryland; and (4) improper remarks in the Government’s rebuttal summation.

On appeal, the Circuit Court found that the Government, despite warnings by the trial judge, improperly attempted to bolster the credibility of key witnesses by referring to provisions of their cooperation agreements, in the absence of any attack on their credibility by the defense. The Court further held that the district court abused its discretion in several evidentiary rulings, and that the prosecutor made improper comments in his rebuttal summation, including personally vouching for an expert witness .  With regard to the Brady material, the Court found that “the district court’s ruling here reduced any prejudice to a minimum.”  The Court noted that it was disappointed by the Government’s failure to disclose evidence in a timely fashion, but that it was not grounds for a new trial.

The Court acknowledged that it “would hesitate to vacate and remand this case for a new trial based on any one of the errors . . . or perhaps even any one category of those errors.  But considering the record as a whole, [it was] compelled to conclude a new trial is warranted.”  The Court continued ”to conclude that the totality of the Government’s misconduct in this case, combined with the district court’s erroneous exclusion of evidence favorable to the defense, denied the defendants a right to a fair trial.”  The Court ordered a new trial for CES, Copeland and Dunn.  Allen previously entered into a plea agreement.

Related Practice: Environmental & Land Use

Attorney: Riza Dagli

Category: Asbestos, Clean Air Act, TSCA

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US Supreme Court Finds North Caroline Law Preempts CERCLA’s Discovery RuleJune11, 2014

The United States Supreme Court ruled that CERCLA and its discovery rule, which provides that the statute of limitations for a CERCLA claim begins to run when a plaintiff discovers or should have discovered the contamination, does not preempt North Carolina’ statute of repose.  North Carolina’s statute of repose provides that a tort suit cannot be brought against a defendant more than ten (10) years after the culpable act of the defendant.  Justice Kennedy differentiated between statutes of limitations and statutes of repose and held that CERCLA does preempt state’s statutes of limitations.  The Court found that unlike a statute of limitation, which provides encouragement for a plaintiff to bring a claim timely, the statute of repose “puts an outer limit on the right to bring the civil action” in the first place.

Unlike North Carolina’s very broad statute of repose, New Jersey’s and New York’s statutes are far more limited, thus this ruling will not affect CERCLA claims in these and many other states.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: CERCLA

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Current Property Owner Found Liable for Mercury Clean-Up at Kiddie KollegeJune 3, 2014

New Jersey Superior Court Judge Anne McDonnell found that the current property owner, Jim Sullivan Inc., and former property owner of the site, the Navillus Group, are liable for costs related to the clean-up and removal of mercury discharged on the property before Sullivan purchased the property and leased it to the Kiddie Kollege daycare center.  The Judge noted that Sullivan and Navillus Group could have discovered the mercury contamination if they had engaged environmental professionals at the site of had reviewed New Jersey Department of Environmental Protection (NJDEP) records.  The previous property owner (who owned the property when it was used to manufacture thermometers) and the thermometer manufacturing company, Accutherm, Inc., are also liable for the remediation.

Kiddie Kollege leased the property for use as a daycare center from 2004 until 2006 when the NJDEP and the Department of Health and Senior Services (DOH) determined that the building was not fit for occupancy based upon air and surface samples, which showed very high levels of mercury throughout the building.  The building has since been demolished.  The defendants will all share a $2.04 million liability for clean-up of the site.  The Kiddie Kollege case highlighted environmental contamination related to childcare centers and ushered in new regulations.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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New Jersey Appellate Division Upholds NJDEP's Denial of Permit as Not Arbitrary and CapriciousJune 3, 2014

JDME Acquistions, LLC (“JDME”) entered into a purchase agreement to develop a property with residential housing with Shamrock Creek, LLC (“Shamrock”), subject to the approval of all permits, including a Stream Encroachment and Freshwater Wetland Permit (“Permit”).   NJDEP denied the Permit based upon several factors.  NJDEP ruled that JDME proposed to build the project within a  Special Water Resource Protection Area (“SWRPA”) but it did not demonstrate that the functional value and condition of the SWRPA would be maintained.  NJDEP also could not verify if the proposed stormwater discharge was in compliance with standards.  NJDEP determined that the proposed homes would lie below the 100-year surface water elevation mark, contrary to Flood Hazard Area Control Act rules.  JDME’s proposal further violated New Jersey regulations because the post-construction peak runoff rate for a two-year storm event would exceed fifty percent of the pre-construction rate.  Lastly, JDME had not obtained a stream encroachment permit, thus a freshwater wetlands permit could not be approved.

Shamrock appealed the matter and it was transferred to the Office of Administrative Law (“OAL”).  The Administrative Law Judge (“ALJ”) found that NJDEP had properly denied the Permit because the proposed development would result in a loss of functional values of habitat, pollutant reduction, temperature moderation and channel integrity.  The ALJ further found that Shamrock failed to show the encroachment was necessary to accomplish the project’s purpose and could not be avoided with a project redesign or reduction in scope.  The NJDEP Commissioner issued a final decision adopting the ALJ’s decision and Shamrock appealed.  Shamrock argued that the decision to deny the Permit application was arbitrary, capricious and unreasonable because NJDEP violated the regulations and “withheld ‘notice to Shamrock of ‘technical deficiencies’ in its application, prior to its denial of the requested permits.’”

The Appellate Division noted that there is substantial deference to the NJDEP’s interpretation of the statutes and regulations it is charged with enforcing.  Further, the Court may not substitute its judgment for that of the agency.  The Court highlighted the Stormwater Management Rules and NJDEP’s purpose in establishing them.  The Court upheld all of the Commissioner’s findings noting that “profitability or financial feasibility of the proposed project is not the focus of DEP’s analysis in determining whether Shamrock demonstrated that any specific functional value or the overall condition of the SWRPA would be maintained to the maximum extent practicable, but, rather, the loss must be unavoidable."  The Appellate Division upheld the NJDEP Commissioner’s decision noting that the denial of the Permit was not arbitrary or capricious.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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Council on Affordable Housing Proposes New RegulationsMay 5, 2014

On April 30, 2014, the New Jersey Council on Affordable Housing ("COAH") introduced the long awaited new set of "third round" (post-1999) regulations, as ordered by the New Jersey Supreme Court.  The rules will be published in the June 2, 2014 edition of the New Jersey Register, and there will then be a 60-day comment period on the rules.  COAH has scheduled a July 2, 2014 public hearing on the rules, as well as additional meetings on August 13, 2014 and October 21, 2014.

The new regulations divide municipal fair share obligations into three components: (1) the "rehabilitation share"; (2) the "unanswered prior obligation" component; and (3) "fair share of prospective need."  The rules recognize the need for density bonuses and other compensatory benefits when the private sector is asked to provide affordable housing through inclusionary developments that contain both lower income housing and market rate housing.  They propose that lower income housing set-asides will, in general, be limited to 10% of the total number of units, although they envision that municipalities may seek higher set-asides upon making a proper showing.  The rules do not require presumptive minimum densities for inclusionary development.  Instead, they require that municipalities conduct an "economic feasibility analysis" as to every site in the State proposed for inclusionary development.  This provision will require costly, time-consuming, and debatable studies as to the issues of anticipated expenses and income, and whether an "adequate profit" could be derived by the developer given the applicable density and set-aside.

Under the rules, municipalities will still have to submit fair share plans and housing elements to COAH proposing means to address their fair share obligations.  Provisions are made for objections to those plans to be filed by interested parties, with mediation by COAH and COAH ultimately deciding whether a municipality's plan lawfully meets its fair share obligation.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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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.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Energy, Solar

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Deadline for Remedial Action Permit Submission May 7, 2012May 1, 2014

From the New Jersey Department of Environmental Protection...

The purpose of this message is to alert persons responsible for conducting remediation of an important, quickly approaching deadline.  This deadline applies to persons that were issued a restricted or limited restricted use no further action letter by the Department prior to May 7, 2012.  All such persons are required to submit an application for a remedial action permit pursuant to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) at N.J.A.C. 7:26C-7.6.  More critically, the deadline to apply for this remedial action permit is May 7, 2014, as required by ARRCS at N.J.A.C. 7:26C-7.6(a).

The Department will be posting two quick reference guides on its web page at http://www.nj.gov/dep/srp/srra/training/quick_reference.html shortly.  These guides will provide a summary of what is required to be submitted with a permit application and provides links to important forms and guidance documents.  A separate listserv message will be sent out when the guides are available.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: SRRA

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EPA Selects Remedy for Lower Passaic RiverApril 21, 2014

The United States Environmental Protection Agency ("EPA") has selected the Christie administration's preferred remedy for the clean-up of the Lower Passaic River.  New Jersey's remedy is a bank-to-bank capping of the river bed with sufficient dredging to prevent additional flooding and enable future navigational use of the lower 2.2 miles of the river.  The dredged materials would be taken off-site for treatment and disposal in a hazardous waste landfill.  The goal of the remedy is to reduce the ongoing threat to human health and the environment while also encouraging economic growth and revitalization along the Passaic River.  The State believes that this remedy would achieve the same protections as removing all of the contaminated sediments.

The EPA chose from several remedies including taking no action or dredging the entire eight miles of the river.  The New Jersey Department of Environmental Protection ("NJDEP") worked with the EPA to develop a Focused Feasibility Study for the cleanup of the lower eight miles of the Passaic River.  NJDEP's alternative is based on several factors including the goal to remove as much contaminated sediment as possible, to stop the uncontrolled release and movement of contaminated sediments in Newark Bay and to be consistent with reasonable long-term future uses of the Passaic River and adjacent areas.

EPA will hold public hearings on the proposed remedy later this year.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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Anadarko Petroleum Corp. Agrees to Pay Largest Recovery for Environmental Cleanup in DOJ HistoryApril 8, 2014

The Justice Department has settled cleanup and tort claims with Anadarko Petroleum Corp.  These claims arise from contaminated sites across the United States.  Anadarko agreed to pay $4.4 billion towards the cleanup of the sites and the environmental claims.  Anadarko will pay an additional $750 million to resolve claims from people alleging adverse health effects.  This is an unprecedented settlement.

The claims arise from Kerr-McGee Corp.'s various historical business operations, which produced hazardous waste for more than 80 years.  When Kerr-McGee stopped conducting its business, it attempted to shield itself from the environmental liabilities by forming a corporation, Tronox, and transferring the assets with environmental liabilities into Tronox.  Tronox ultimately filed bankruptcy.  After the transfer of the environmental liabilities, Anadarko purchased Kerr-McGee's oil and gas business for $18 billion.  Ultimately, the creation and transfer of assets into Tronox was considered a fraudulent conveyance and thus the Anadarko was the liable successor party.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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New Jersey Appellate Division Directs NJDEP to Take Action Regarding RGGIApril 3, 2014

The New Jersey Department of Environmental Protection ("NJDEP") posted a notice on its website that it would no longer implement the State's CO2 Budget Trading Program ("Trading Program") because New Jersey withdrew from the Regional Greenhouse Gas Initiative ("RGGI") on January 1, 2012.  Environment New Jersey and the Natural Resources Defense Council challenged NJDEP's action in In re Regional Greenhouse Gas Initiative (RGGI), arguing that the Trading Program regulations can be implemented separate from RGGI and the NJDEP must go through the formal rulemaking procedures established by the Administrative Procedure Act ("APA") in order to stop implementation of the Trading Program regulations.

In 2005, New Jersey entered into a memorandum of understanding ("MOU") with the governors of six other states to be part of RGGI and committed New Jersey to take legislative action to implement a regional carbon dioxide trading program to stabilize carbon dioxide emissions within the region.  The MOU created an organization to assist and coordinate the efforts of the states.  The organization would have no regulatory or enforcement authority and New Jersey would be required to implement its own plan and rules.  On July 7, 2008, NJDEP proposed regulations to establish the Trading Program.  The regulations contained detailed provisions for establishing an in-state cap on carbon dioxide emissions, creating carbon dioxide allowances equal to the cap, allocating those allowances to a consumer benefit account, and distributing those allowances from the account to electric generations through either auctions or fixed sales at least once per year.

In May 2011, Governor Christie announced that New Jersey would withdraw from participation in RGGI as of December 31, 2011.  On January 1, 2012, NJDEP posted an announcement on its website that New Jersey power plants would no longer have to comply with the Trading Program requirements.  NJDEP also stopped making emissions allowances available for purchase and stopped providing for the award of emissions offset allowances on qualifying projects.

Environment New Jersey and the Natural Resources Defense Council argued that the NJDEP engaged in improper rulemaking by posting the withdrawal notice and not repealing the Trading Program regulations through the procedures of the APA.  NJDEP argued that the Trading Program regulations do not need to be repealed because their only purpose was to implement New Jersey's participation in RGGI.

The Court found that the regulations were worded broadly and could not be read to require action by NJDEP separate from participation in a regional greenhouse program.  The Appellate Division remanded the case and directed NJDEP to comply with the APA to repeal the regulations or to amend the regulations to provide that they are only applicable when New Jersey is a participant in a regional or other established greenhouse gas program.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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NJDEP Allows Capping for Semivolatile and Inorganic ContaminantsMarch 27, 2014

The New Jersey Department of Environmental Protection ("NJDEP") announced that it will allow capping for semivolatile and inorganic contaminants providing certain site-specific conditions are met.  A capped site will require a deed notice and engineering controls, as well as an approved remedial action permit for soils for the long-term maintenance of the deed notice and engineering control.

Click here to see the new guidance

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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Kodak Settles with the Government to Pay Costs for Clean-up at Sites in New York and New JerseyMarch 20, 2014

Following its emergence from bankruptcy in September 2013, Eastman Kodak has settled with the government to pay $49 million towards the clean-up of its Rochester business park site and the Genesee River from decades of generation and storage of hazardous waste.  The New York Department of Environmental Conservation will fund additional costs up to $99 million towards the clean-up.  As part of a second settlement, Kodak will also pay $2 million towards clean-up of a site in Fair Lawn, New Jersey and $750,000 for the Mercury Refining Superfund Site in Colonie and Guilderland, New York.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Superfund

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COAH Saga Continues and To What End?March 20, 2014

While a state appellate court threatened the members of the Council on Affordable Housing (COAH) with jail time if they did not adopt a housing plan by May 14, 2014, the NJ Supreme Court gave COAH a reprieve.  COAH now has to meet the following deadlines: By May 1, 2014, COAH must propose regulations, which will be published in the June 2, 2014 edition of the NJ Register.  By August 1, 2014, the public may submit comments to COAH regarding the proposed regulations; and by October 22, 2014, COAH must adopt the regulations, which will be published in the November 17, 2014 edition of the NJ register.  If COAH does not adopt regulations by November 17, 2014, the Court will entertain motions seeking relief in aid of litigant's rights.  Part of the relief that could be granted by the court is lifting the protections afforded to municipalities by the Fair Housing Act which would permit builder's remedy lawsuits against municipalities.  The Court retained jurisdiction over any future applications to enforce the judgment of the Court.  Although COAH is supposed to have 12 members, only half of the seats are currently filled and two of those members of the Christie administration, so it is questionable how much can really get done, and municipalities may in fact start to face builders remedy law suits.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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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.

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Site Remediation Reform Act - Follow upJanuary 27, 2014

As a follow-up to our January 16, 2014 post, Governor Christie signed into law the extension to the requirement in the Site Remediation Reform Act for the completion of certain remedial investigations by May 7, 2014. Thus, parties who meet the requirements as described in the legislation and who seek an extension will now have until two additional years to complete the remedial investigation.

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New Jersey Legislature Passes Bill Extending the May 2014 Deadline for Site InvestigationJanuary 16, 2014

The New Jersey Legislature sent a bill to Governor Christie for signature, which would extend the time for completion of remedial investigations of certain contaminated sites.  A responsible party would be able to extend the May 7, 2014 deadline to May 7, 2016 by submitting a certification and form.  In order to obtain approval for the extension, the following conditions would have to be present:

  1. A licensed site remediation professional has been retained to conduct a remediation of the site;
  2. Any remediation requirements, including mandatory remediation timeframes for the site have been met;
  3. Technically complete submissions are made in compliance with the site remediation rules and regulations for the initial receptor  evaluation, immediate environmental source concern control report, light non-aqueous phase liquid interim remedial measure report, preliminary assessment report and site investigation report;
  4. A remediation funding source has been established if required;
  5. If a remediation funding source is not required, a remediation trust fund must be established for the cost of the remedial investigation;
  6. All oversight costs must be paid in full; and
  7. All annual NJDEP fees and costs for the remediation and remediation funding sources must be paid in full.

An application for an extension must be made by March 7, 2014 or thirty (30) days after enactment of the law, whichever is later.

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Minneapolis Residents File Class Action Suit Against General Mills over TCE Vapor IntrusionJanuary 8, 2014

Residents of a Minneapolis neighborhood have filed a class action suit against General Mills over vapor intrusion into their homes from a trichloroethylene (TCE) plume (Ruzicka v. General Mills Inc., Minn. Dist. Ct., No. 27-CV-13-21004, 12/5/13).

The residents allege that soil gas vapors from the TCE plume are intruding into their homes, reducing their value and threatening resident’s health. In addition, they accuse General Mills of failing to adequately investigate and remediate the vapor intrusion caused by its TCE disposal and violations of Minnesota’s Environmental Response and Liability Act.  The complaint also includes allegations of negligence, trespass and willful and wanton conduct.

The plaintiffs are seeking certification as a class action; investigation, delineation and remediation of the contamination; establishment of a medical monitoring and treatment fund; damages and attorney fees.

The TCE plume developed as the result of onsite disposal of TCE and other volatile organic compounds at a General Mills research facility that operated in the area between the 1940s and 1980s.   The facility is a designated Superfund site and General Mills has been working to clean up the contamination for the past 25 years.


The complaint is available at http://www.zimmreed.com/uploads/GMCAA.pdf.

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EPA Adopts the 2013 ASTM Standard – E1527-13 for All Appropriate Inquires For CERCLA Innocent Landowner Liability ProtectionsJanuary 7, 2014

As a follow-up to our post of August 22, 2013, the United States Environmental Protection Agency (“EPA”) has adopted a direct final rule amending the “all appropriate inquiries” (AAI) rule to take effect immediately. The new rule provides that the new ASTM International revised standards updating its 2005 Phase I assessment standard, known as ASTM E1527-13 will meet EPA’s AAI Rule.  This new ASTM standard seeks to provide clarification and guidance for the assessment of commercial properties and whether or not there are recognized environmental conditions at the properties to assist professional and prospective purchasers.

Among many changes, ASTM E1527-13 updated definitions of the following:

(1)    “recognized environmental condition”;

(2)    “historical recognized environmental condition”;

(3)    added a definition for “controlled recognized environmental condition” to the standard;

(4)     added a clarification to the definition of “de minimis condition”;

(5)    “migrate/migration” to include vapor intrusion migrations; and

(6)    “release” to clarify that it has the same meaning as under the CERCLA statute.

The 2005 standards will likely be phased out as the standard that meets the minimum threshold of the AAI Rule  because the updated guidance includes evaluating potential vapor intrusion impacts at the property, which was not included or mentioned in the ASTM 2005 standards.

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COAH Saga Continues: Do Builders Remedy Lawsuits Loom?December 23, 2013

The Fair Share Housing Center (FSC), the non-profit “watch dog” for affordable housing in New Jersey, has filed a Motion with the Appellate Division noting that the Council on Affordable Housing (COAH) Board has not met despite the Supreme Court's decision on September 26, 2013 ordering COAH to adopt third round rules compliant with the 1st and 2nd round methodology within 5 months of the date of the ruling. FSC’s motion states that there are no signs of drafted rules and that it is now impossible procedurally to meet the adoption deadline. FSC’s motion urges that COAH be removed from the rulemaking process and a special master appointed to prepare a rule proposal by February 15, 2014. Alternatively, FSC requested that COAH no longer be authorized to protect municipalities from builder's remedy lawsuits and instead allow these suits to proceed in the trial courts to facilitate the production of affordable housing. We will continue to keep you apprised of any developments as they occur.

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U. S. District Court for the District of Puerto Rico Limits the Pollution Exclusion Clauses to Afford Coverage to InsuredsDecember 12, 2013

The United States District Court for the District of Puerto Rico issued a decision on December 9, 2013, holding that the pollution exclusion clause does not apply to exclude insurance coverage for cleanup costs from a diesel fuel spill occurring only within a building when the spill did not escape into the surrounding environment.

The Court held the pollution exclusion clause is inapplicable in this case, because the damages caused by the diesel fuel spill in the building did not “escape the building” or contaminate the outside environment. This decision may open the door for others to seek insurance coverage claims for on-site clean up costs provided the contamination is not released into the surrounding environment. See Zurich America Ins. v. Lord Electric Co. of Puerto Rico, D.P.R., NO. 09-1111, December 9, 2013

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Frances B. Stella

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CITGO Petroleum Corp. to pay $23.25 million to settle MTBE contamination claimsNovember 12, 2013

CITGO Petroleum Corporation has agreed to pay $23.25 million to New Jersey to settle methyl tertiary butyl ether (MTBE) contamination claims.

In June 2007, the New Jersey Department of Environmental Protection (NJDEP) filed suit against nearly 50 MTBE manufacturers, refiners and marketers alleging that they were responsible for contamination of state waters with the gasoline additive MTBE. The proposed Judicial Consent Order (New Jersey Dep’t of Envtl. Prot. v. Atlantic Richfield Co., S.D.N.Y., No. 08-CIV-00312, proposed consent order 10/21/13) would resolve CITGO’s alleged liability for damages, past cleanup and removal costs, and injunctive relief under the New Jersey Spill Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  CITGO’s remediation obligations, if any, are not affected by this settlement.

A copy of the proposed Judicial Consent Order is available for inspection via the Internet at http://www.nj.gov/dep/srp/legal/ and at the Department’s Office of Record Access.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: CERCLA, MTBE, Spill Act

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Brach Eichler Launches New Subsidiary, Brach Eichler Government Affairs LLCNovember 5, 2013

Rocco Iossa has joined the Firm and has helped launch the Firm's new government affairs and lobbying firm Brach Eichler Government Affairs LLC.

The subsidiary will be located in Trenton, NJ and Rocco will be the Managing Member.  Rocco is the former founding member of State Street Partners, a well known and reputable full service government affairs lobbying firm.  Brach Eichler Government Affairs will serve clients across a broad base of business and industry, with particular focus in the healthcare, environmental, transportation, real estate and pharmaceutical industries.  Rocco brings to the Firm more than 25 years' experience in government affairs and law as well as valuable expertise and relationships.  He served as senior assistant counsel in the Office of the Governor for the State of New Jersey where he represented Governor Christie Todd Whitman on all legislative matters pending before the New Jersey Senate.  In 1995, he was named appointments counsel to the Governor, where he directed all gubernational appointments in the State of New Jersey.

Also a part of Brach Eichler Government Affairs LLC is Alan Steinberg.  Alan has been one of the leading governmental officials in the environmental arena in the Northeastern United States over the past two decades.  As Executive Director of the New Jersey Meadowlands Commission under New Jersey Governor Christie Whitman, Steinberg was in charge of the zoning, planning, solid waste management, and environmental regulation of the New Jersey Meadowlands, one of America's most sensitive environmental areas.  As Region 2 Regional Administrator of the U.S. Environmental Protection Agency under President George W. Bush, Steinberg was the top Federal environmental official of a region that included all of New York State, New Jersey, Puerto Rico, the U.S. Virgin Islands, and eight federally recognized Indian nations.  In both these positions, Steinberg developed a thorough knowledge of environmental regulation of air, land, and water, the Superfund program, and extensive contacts with the career environmental officials in the jurisdictions he supervised.

For more information visit www.bracheichlerga.com

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Superfund, Zoning

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Brach Eichler Launches Criminal Defense and Government Investigations PracticeNovember 1, 2013

Riza Dagli has joined Brach Eichler as a member and chair of the Criminal Defense and Government Investigations Group.

Prior to joining the firm, Mr. Dagli was Deputy Director of the NJ Division of Criminal Justice, where he supervised complex investigations and prosecutions, including Environmental Crimes.

Before government service, Mr. Dagli litigated environmental matters for a large NJ law firm.  As a prosecutor, defense attorney, and litigator, he has been actively involved in the full spectrum of environmental law, from minor violations and releases to superfund cleanups and criminal prosecutions.

Related Practice: Environmental & Land Use

Attorneys: Riza Dagli and Frances Stella

Category: Superfund

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NJDEP Waiver Rule UpheldOctober 15, 2013

The New Jersey Supreme Court has denied the petition for certification filed by numerous groups asking the Court to overrule the validity of NJDEP's Waiver Rule.

The petitioners argued that NJDEP does not have the authority to waive its own substantive regulations. The Appellate Division had previously disagreed with this argument and upheld the Waiver Rule. The Supreme Court's denial of the petition for certification means that the Waiver Rule stands. To date, NJDEP has not approved any waiver application. Fewer than 30 applications have been filed since the implementation of the Waiver Rule. Perhaps with this new certainty of its legality, NJDEP will review and grant those requests that have merit and worthy applications will be filed.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: NJDEP Waiver Rule

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Growth Share Not Consistent With Fair Housing Act-COAH Has 5 Months To Develop Second Round-Type RegulationsSeptember 27, 2013

The New Jersey Supreme Court found that COAH's Third Round  “growth share” methodology violated the New Jersey Fair Housing Act of 1985 (FHA) (N.J.S.A. 52:27D-301 et seq.)

The regulations did not assign to each municipality a specific, definite housing obligation based upon its fair share of the unmet present and prospective regional need for low and moderate income housing.  Instead, COAH's Growth Share methodology regulations assigned to municipalities an obligation that was proportional to its residential and non-residential growth. The Justices found that the growth share regulations exceeded the rule making authority granted to COAH in the FHA, and that it was up to the Legislature to change the FHA to provide alternative methodologies such as presented by growth share.

The Court reaffirmed that municipalities still have an affirmative constitutional obligation to provide for a realistic opportunity for the construction of their fair share of the present and prospective regional need for low and moderate income housing, as articulated in Mt. Laurel I and II.  (S. Burlington Cnty NAACP v. Twp of Mt. Laurel, 67 NJ 151 (1975) and S. Burlington Cnty NAACP v. Twp of Mt. Laurel, 92 NJ 158 (1983)). COAH now has 5 months to develop regulations along the lines of those used in the Second Round to determine municipalities’ fair share affordable housing obligations.

The Court’s ruling was a 3-2 one. The  two Justices who dissented stated that they thought that there was enough flexibly in the FHA to allow alternate methodologies.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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COAH Ruling - Growth Share OutSeptember 26, 2013

This morning (September 26), the NJ Supreme Court released a decision affirming the lower court's finding that Growth Share should be removed from COAH's Third Round Rules. More to follow!

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH

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NJ Supreme Court to Issue COAH RulingSeptember 25, 2013

The New Jersey Supreme Court's long awaited decision on the validity of the Council on Affordable Housing's Third Round rulemaking will be released on THURSDAY, September 26, 2013.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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Touted as the Way to Make NJ Competitive, the Economic Opportunity Act of 2013 Has Been Signed Into LawSeptember 23, 2013

On September 18, 2013 Gov. Christie signed into law a bill that overhauls the state's tax incentive programs to enable New Jersey to better compete for business. It will affect property owners, developers and employers alike.

The law reduces the number of state economic incentive programs from five (BEIP, BRAGG, ERG, GROWNJ, &UTHTC) to two, and lowers the amount of investment businesses must make to qualify for tax breaks. The new programs are (1) a new and improved GrowNJ program that would be the state's sole business attraction and retention incentive – tax credits for employers that create or retain jobs and (2) a new and improved Economic Redevelopment Growth Grant (ERG) program that would be the state's sole developer incentive to more readily close project financing gaps and incentivize the building of public infrastructure critical to redevelopment projects. At the NJ Economic Development Authority’s discretion, the State incentive grant can be up to 20% of projects costs except in Garden State Growth Zones (Camden, Trenton, Passaic City, Paterson) where the grant can be up to 30%.

The grant amount can be increased up to 10% if: a supermarket, healthcare facility or a project fulfilling a federal contract in a distressed municipality; a transit project; a highlands development credit receiving area or redevelopment area; a qualified residential project in which at least 10 percent of the residential units are constructed as and reserved for moderate income housing; a Garden State Growth Zone; a disaster recovery project; an aviation project; a tourism destination project; or a project that substantial rehabilitates or renovates an existing structure or structures.

Eligible Incentive Areas are (1) Planning Areas 1, 2, & 3; (2) Growth areas/planning areas of Meadowlands, Pinelands, Highlands and (3) the following areas of Planning Areas 4A, 4b & 5: (i) designated center/designated growth center under State Plan, (ii) areas in need of redevelopment and in need of rehabilitation, and (iii) areas on which a structure exists or previously existed.

Commercial Projects, Tax Increment Financing: Developers can receive tax credits up to 75% of the projected annual incremental

State revenue (or up to 85 percent in a Garden State Growth Zone) to close project financing gaps.

Residential Projects: $600 million in Tax Credits is available as follows: (1) $250 mil for 7 South Jersey Counties (Atlantic, Burlington, Camden, Cape May,

Cumberland, Gloucester, Ocean and Salem), (2) $175 million for Camden, (3)$75 million for South Jersey distressed municipalities, (4) $250 million for East Orange, Elizabeth, Harrison, Hoboken, Jersey City, Newark, New Brunswick, Passaic, Paterson, Trenton, Union City and Sandy related projects, (5) $75 million for distressed municipalities, deep poverty pockets and Highlands development credit receiving areas or redevelopment areas, and (6) $25 million for other areas

Projects in Garden State Growth Zones would also be granted a property tax exemption for 20 years.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Frances B. Stella

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EPA Amends Rule for All Appropriate Inquiries StandardAugust 22, 2013

EPA amended the "All Appropriate Inquiry" rule on August 15, 2013 to confirm that complying with the new ASTM E1527-13, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for due diligence prior to purchasing property will meet the standard to establish innocent landowner liability protection under CERCLA. ASTM E1527-13 updates the 2005 standard to meet the "All Appropriate Inquiry" by a prospective purchaser of a potentially contaminated property for future liability protection.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: CERCLA, Due diligence

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Clustering - An Important Land Use Planning Tool - Gets a LiftAugust 16, 2013

On August 7th Governor Christie signed A3761/S2608, known as the Cluster Development Act, to amend the Municipal Land Use Law (MLUL) to allow municipalities to use clustering and lot size averaging more broadly to direct growth and preserve land. The Act expands upon the existing MLUL provisions that authorize cluster development and clarifies a provision of law that authorizes a related planning tool, lot-size averaging. Municipalities are authorized to pass clustering zoning ordinances, however, the landowner will have the option of deciding whether to cluster.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: Land Use, Zoning

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Third Circuit Holds RCRA Cases Shall Be Brought in District CourtAugust 12, 2013

In the case, Litgo New Jersey Inc. v. New Jersey DEP, the Third Circuit reversed a District Court decision and held that claims made under the Resource Conservation and Recovery Act (RCRA) must be brought in federal court. The District Court held that a RCRA claim should have been brought when a previous action was filed in New Jersey Superior Court ten years prior against the same party.

The Third Circuit reversed the District Court's dismissal of the RCRA claim because it found that federal courts have exclusive jurisdiction over RCRA claims. RCRA provides that any action shall be brought in the jurisdiction in which the alleged violation occurred or the alleged endangerment may occur. The Third Circuit noted that the majority of other courts have determined that federal courts have exclusive jurisdiction over RCRA claims and that the clear language of the statute provides for same.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: RCRA

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USEPA Updates Oil and Natural Gas Standards for Storage TanksAugust 8, 2013

The United States Environment Protection Agency ("USEPA") announced this week an update to its April 2012 oil and natural gas standards for storage tanks. The standards will phase in the deadlines and provide the time needed to install the controls. The standards provide an alternative if one can show that the tanks emit less than four tons per year of VOC emissions without the controls. The rule establishes the following deadlines: (1) tanks that come online after April 12, 2013 are likely to have higher emissions and must control VOC emissions within 60 days or by April 15, 2014, whichever is later; and (2) tanks that came online before April 12, 2013 are likely to have lower emissions and must control VOC emissions by April 15, 2015.

The new rule also streamlines compliance and monitoring for tanks that have already installed controls.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Lindsay P. Cambron

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EPA's Rule on Portland Power Plant AffirmedJuly 31, 2013

The Third Circuit has affirmed EPA's authority to impose specific Clean Air Act ("CAA") regulations on Portland Generating Station, a coal-fired electricity generating plant located in Upper Mt. Betchel Township in North Hampton County, Pennsylvania (the "Portland Power Plant"). The Portland Power Plant is located directly across the Delaware River from New Jersey. EPA, pursuant to NJDEP's CAA Section 126(b) petition, restricted SO2 emission from the Portland Power Plant. EPA's rule authorized continued operations at the Portland Power Plant but imposed emission limits and compliance schedule to bring the Portland Power Plant into compliance with its SO2 emissions to comply with the new 1-hour SO2 NAAQS, which became effective on August 20, 2010. The Third Circuit held that EPA's rule was in accordance with the Clean Air Act, which provides that EPA can take immediate action when downwind states are affected by air pollution from upwind sources. The Court affirmed EPA's rule for the Portland Power Plant was not arbitrated, capricious, an abuse of discretion or otherwise not in accordance with the laws as it is in EPA's discretion to impose emission reductions on a single source such as the Portland Power Plant.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Clean Air Act

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Reminder....July 26, 2013

Earlier this month, The New Jersey Department of Environmental Protection (DEP) and the New Jersey Department of Health (DOH) announced the NJDOH Vapor Intrusion Data Submission Checklist (Checklist), to be used by Licensed Site Remediation Professionals (LSRPs). The Checklist should be used when LSRPs submit vapor intrusion data to the DOH. The Checklist should not be submitted to DEP.

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Reversal on Compensation for Loss of ViewJuly 15, 2013

The NJ Supreme Court reversed lower courts' ruling on how to determine just compensation for loss of view from dunes. On July 8, 2013, the New Jersey Supreme Court ruled in Borough of Harvey Cedars vs Karan that the determination of "just compensation" for the partial taking of a permanent dune easement on private property must consider the quantifiable increase in property value from the storm protection benefits of the dunes project as an off-set to any diminution in the value of the remaining property from loss of ocean view. This modifies the formula for calculating just compensation previously used for calculating damages in such situations.  At trial, the Ocean County Superior Court had ruled that the property owner was entitled to damages from the loss of ocean view and that the storm protection provided to the property by the dune project was a general benefit that applied only to the Karan property's. Based on that, the lower court held that any storm protection provided by the dune was inadmissible in the determination of just compensation. The Appellate Division subsequently upheld this ruling.

The Supreme Court disagreed and reversed the lower court decisions, discarding the concepts of "special benefits" and "general benefits" and instead refocusing the determination of just compensation on the concept of fair market value. The Court sent the case back to the trial court and ordered the jury be allowed to consider not only the loss of ocean view, but also the benefits afforded to the beachfront homeowners from the dunes built in front of their houses.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: Susan R. Rubright

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Supreme Court Rules Governor Cannot Abolish COAHJuly 10, 2013

Supreme Court Rules Governor cannot abolish COAH-- The NJ Supreme Court has ruled that Gov. Chris Christie is not allowed to scrap the Council on Affordable Housing (COAH) and fold its duties into the Dept. of Community Affairs. Governor Christie's attorney had argued that governors have broad license to reorganize government agencies under a 1969 law called the Executive Reorganization Act, while housing advocates countered that the law doesn't extend to nonpartisan, independent agencies such as COAH. The Court's majority agreed with the housing advocates. One justice in dissent, however, stated that nearly all of our state's recent governors have abolished or reorganized (independent) agencies under the 1969 law.

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NJDEP Advises Responsible Parties of May 7, 2014 Deadline for Remedial WorkJune 26, 2013

Pursuant to the Site Remediation Reform Act ("SRRA"), the New Jersey Department of Environmental Protection ("NJDEP") has advised responsible parties of the May 7, 2014 deadline for them to complete their remedial investigations. This deadline only applies to some responsible parties, but sites that do not complete the remedial investigation by this date are subject to the requirements of direct Department oversight by NJDEP.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Site remediationm, SRRA

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Illinois Passes Fracking LegislationJune 20, 2013

Governor Pat Quinn of Illinois signed into law the "nation's strongest" hydraulic fracturing ("fracking") legislation in the country. The Hydraulic Fracturing Regulatory Act requires, among other things, testing of water before and after drilling as well as disclosure of the chemicals the companies are using. Companies have been conducting fracking in Illinois and the State has worked to draft regulations, which will continue to create jobs while trying to protect the environment. Environmental groups assisted with the creation of the regulations and hope that they will provide protection of the environment.

There is likely to be litigation from anti-fracking groups.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Fracking

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Appellate Division Remands Application for Innocent Party Grant to NJDEP For Assessment of Corporate ReorganizationJune 3, 2013

Cliflake Associates LLC ("Cliflake" or "LLC") owns an industrial and commercial property in Clifton, which is in need of remediation of soil and groundwater contamination. In 1972, the property was acquired by Cliflake Associates, LP ("LP"). In 1999, the partners in the LP formed Cliflake and acquired the assets of the LP. Title to the property was transferred from the LP to the LLC via executed deed in July 1999.

In 1999, Cliflake began remediating the property pursuant to a memorandum of agreement with the New Jersey Department of Environmental Protection ("NJDEP"). In 2010, the remedial investigation identified volatile organic compounds contaminating the property, which contamination occurred prior to 1972. Soil and groundwater contamination was identified, as well as a vapor intrusion issue that needed to be addresses. The projected cost of remediation exceeds two millions dollars.

Cliflake applied for a Hazardous Discharge Site Remediation Fund Innocent Party Grant ("innocent party grant") pursuant to the Brownfield and Contaminated Site Remediation Act ("Brownfield Act"). The innocent party grant was tentatively denied by NJDEP because Cliflake did not own the property prior to 1972. Cliflake sought reconsideration arguing that the LLC was essentially the same entity as the LP citing definitions from the Industrial Site Recovery Act ("ISRA") regarding a change in ownership. NJDEP tentatively denied the application again finding that a transfer from an LP to an LC does constitute a change in ownership and that the Brownfield Act and ISRA are separate and distinct statutes. Cliflake again sought reconsideration arguing that the LP to LLC transaction was a merger. NJDEP requested documentation regarding the corporate reorganization, which Cliflake did not provide arguing that it was a "de facto merger." On April 12, 2012, NJDEP issued a final agency decision denying the application.

The Appellate Division reviewed the definitions contained in ISRA regarding a change in ownership. The Appellate Division found that the grants were intended to help owners of contaminated property defray the costs of remediation if they are not responsible for the contamination and met the other requirements as an innocent party. The Appellate Division also wrote that the Legislature seemed "more concerned with the substance of ownership and continuity than the technicalities of the legal form." The Appellate Division further rejected NJDEP's argument that a de facto merger can only result in the acquisition of the prior entity's rights.

The Appellate Division remanded the matter back to NJDEP. The Court directed that Cliflake demonstrate that there was a de facto merger and that the change in its structure did not diminish the assets available for remediation or shield the members from liability. Cliflake will also be required to meet the additional eligibility requirements. The Appellate Division also found that Cliflake can raise the issue of the Revised Uniform Limited Liability Company Act.

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COAH Fund Transfer Still StayedMay 31, 2013

COAH Fund Transfer Still Stayed-The NJ Supreme Court has ordered the continuation of the May 13 interim stay entered by the Appellate Division that prevents COAH from transferring approximately $142 million municipally collected funds to the NJ Affordable Housing Trust Fund. However, COAH is permitted to resume gathering and evaluating submissions by municipalities regarding their expenditure of trust fund monies.

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Virginia's New "Multiple Sufficient Causes" Test Daunting to Asbestos PlaintiffsMay 30, 2013

The Virginia Supreme Court, in Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013) recently adopted the "Multiple Sufficient Causes" test over the more commonly used "Substantial Contributing Factor" test, creating a more difficult path to recovery for asbestos plaintiffs in the State. In order to meet the more stringent standard for causation, an asbestos plaintiff must establish the specific level of exposure sufficient to cause him or her to get mesothelioma, and also whether that level of exposure caused by a particular defendant.

In Wannall v. Honeywell International Inc., D.D.C., No. 10-351, 5/14/13, the District Court applying Virginia's newly adopted standard, held that the estate of a man exposed the asbestos from several sources failed to prove that exposure to Bendix brake shoes was a sufficient cause of his mesothelioma. The Federal Court reversed the Multidistrict Litigation Court's previous denial of summary judgment to Honeywell in light of the recently adopted standard, decided a few months after the prior MDL Court's opinion.

Related Practice: Environmental & Land Use

Attorney: Anthony Juliano

Category: Asbestos

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Group Asks NJ Supreme Court to Review Waiver Rule DecisionApril 19, 2013

The Environmental Law Clinic on behalf of numerous environmental and several labor groups has filed a notice of Petition for Certification with the New Jersey Supreme Court seeking to overturn portions of the Appellate Division's ruling upholding the validity of the NJDEP Waiver Rule. As the Appellate Division's decision was unanimous, the Supreme Court is not completed to take the case. The Appellants are seeking review by the Supreme Court on whether the NJDEP acted within its legislative authority in promulgating the general Waiver rule and whether the Waiver rule contains adequate regulatory standards.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: NJDEP Waiver Rule

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$216 Million Verdict Against ExxonMobil Over MTBE UseApril 15, 2013

A jury in New Hampshire awarded the State $216 million from ExxonMobil for contaminating its drinking water with methyl tertiary butyl ether (MTBE). The State of New Hampshire filed an $816 million lawsuit against 22 oil and gas companies regarding the use of MTBE and charging that the companies were aware of the harms associated with MTBE but that they used the chemical anyway. ExxonMobil was the only remaining defendant as the others settled out. The State submitted the costs associated with the clean-up and calculated an estimate of ExxonMobil's market share to determine its share of the damages. ExxonMobil will appeal the decision.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: MTBE

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Appellate Division Upholds the NJDEP's Waiver RuleMarch 22, 2013

In a March 21, 2013 decision, the Appellate Division of New Jersey Superior Court upheld the authority of the New Jersey Department of Environmental Protection (NJDEP) to promulgate the Waiver rules (N.J.A.C. 7:1B), determining that the rules contain adequate standards. The Waiver Rule establishes limited circumstances under which the NJDEP may waive strict compliance with certain of its rules. In its opinion, the appellate court emphasized that NJDEP may continue to accept and act upon waiver applications.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: Susan R. Rubright

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Proposed New Legislation Would Expand the Brownfields Cleanup ProgramMarch 18, 2013

Senator Frank Lautenberg of New Jersey recently co-sponsored legislation to authorize $250 million per year to expand the Brownfields Cleanup Program through 2016. As provided by Senator Lautenberg: the Brownfields Utilization, Investment, and Local Development (BUILD) ACT of 2013 would improve the existing grant process by increasing the limit for cleanup grants and expanding grant liability for certain publicly owned sited and non-profit organizations. The bill would authorize the Environmental Protection Agency (EPA) to make multi-purpose grants, which provide greater certainty for long-term project financing. In addition, the legislation identifies opportunities for waterfront properties and brownfield sites appropriate for clean energy development, allows grant recipients to collect administrative costs, and provides technical assistance to small, rural, and disadvantaged communities.

Senators James Inhofe, Tom Udall, and Michael Crap co-sponsored the bipartisan bill. Through the Brownfields Program, the EPA has provided approximately $1.5 billion in grants, which have leveraged $19.2 billion in additional investment. The Brownfields Program has assessed more than 20,000 properties and created more than 86,000 jobs nationwide. The EPA estimates that there are approximately 450,000 brownfields sites in the United States. The New Jersey Department of Environmental Protection estimates there are 10,000 brownfields sites in New Jersey.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Brownfields, Energy

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NY Court Rejects Challenge to Spectra Energy's Right to Construct Natural Gas Pipeline in NY-NJFebruary 8, 2013

Spectra Energy has overcome another hurdle in its pursuit to construct a $1.2 billion dollar extension to its natural gas pipeline in New Jersey, crossing into New York. Spectra Energy's pipeline project has been going through the regulatory approval process for several years. The 16-mile pipeline is an expansion of the existing Texas Eastern Transmission and Algonquin Gas Transmission intended to bring additional supplies of natural gas to New Jersey and New York, including Manhattan. The New York State Court dismissed an environmental group's challenge to the pipeline because federal law preempts state and local review of licensing of interstate pipelines.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Energy, Pipeline

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New Advisory Base Flood Elevation Maps Adopted Statewide and New Permits by RuleJanuary 25, 2013

The State of New Jersey is adopting the recently released Advisory Base Flood Elevation (ABFE) maps as the State standard.  This Emergency Rule, which will be issued by the New Jersey Department of Environmental Protection (NJ DEP), will be effective immediately.  The new ABFE maps reflect the most accurate, recent information and convey the risks involved.  Governor Chris Christie said that the State decided to move forward with the adoption rather than wait for the Federal Emergency Management Agency to formally adopt the maps 18 to 24 months from now.

Forty percent of New Jersey is in a Flood Hazard Area.  The Governor said the standards, which set requirements for structures rebuilt after Sandy, are intended to give homeowners greater certainty when deciding whether to rebuild and if so how to rebuild.  Rebuilding to the new elevations and complying with building standards should, over the long term, reduce flood insurance rates.  There will also be new Permits-by-Rule for property owners to build, which will eliminate the need to apply to the NJDEP for Flood Hazard Area permits, cutting costs and delays in obtaining NJDEP approval.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: By Susan R. Rubright

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Waiver Rule Argued Before Appellate DivisionJanuary 23, 2013

Division heard oral argument on environmentalist groups' challenge to the NJ DEP (Department of Environmental Protection) Waiver Rule.  The environmentalists argued that there is no statutory authority for waivers in most of the statutes cited, and that there is a lack of standards in the waiver provisions. The DEP argued that the Waiver Rule is consistent with Governor Christie's Executive Order 2, which directed state agencies to implement common sense principles.  The Waiver Rule limits waiver requests to one of four categories: conflicting rules, unduly burdensome, net environmental benefit and public emergency.  Criteria are provided under each category.  The DEP defended its rulemaking process, noting that there are dozens of other rules that refer to consideration of the impact on businesses to support waivers.  The DEP also highlighted that the Waiver Rule explicitly states that a waiver would not be granted if it is inconsistent with its core mission.  To date, there have been over a dozen waiver applications.  Two have been denied and the others have either been deemed complete and are pending, or they have been deemed incomplete and are awaiting supplemental information.  The Appellate Division panel did not give a timeframe for its decision.  It is likely, however, that no decision on the outcome of the pending waiver requests will be issued until the Appellate Division renders its decision.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: By Susan R. Rubright

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Hot Topic for 2013...FrackingDecember 26, 2012

With President Obama's re-election, we may see an increase in the activities of the United States Environmental Protection Agency ("EPA"), particularly on energy issues, in 2013. One issue that has already become a hot topic and will continue to be in the news in 2013 is hydraulic fracturing ("fracking"). Fracking is the process whereby fractures are created in rocks and rock formations by injecting fluid into cracks in the rocks. The fracturing allows oil and gas to be released and then extracted. Fracking is very controversial and has come to the forefront everywhere from Hollywood to politics. A movie set to open later this month starring Matt Damon addresses the issue of fracking and the debate between the job opportunities and energy resources it offers versus the potential harm to both people and the environment.

On the political side, seven states plan to sue the United States Environmental Protection Agency ("EPA") for failing to address climate change, including enactment of guidelines of regulations for fracking. New Jersey's Governor vetoed an anti-fracking bill earlier this year, which would have prevented any fracking material from being transported across the state. New York recently pushed back its issuance of final regulations on fracking, under fire from environment groups and others, to continue to study the issue and the effect it could have on people and the environment. Earlier this month, three New York Assembly members requested that the state's environmental conservation commissioner withdraw the recently proposed regulations.

To be continued in 2013.....

Happy New Year!!

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EPA Pushed to Release Draft Vapor Intrusion GuidelinesDecember 17, 2012

The United States Environmental Protection Agency ("EPA") is expected to release updated vapor intrusion guidance by the end of the year. The current guidance dates back to 2002. A draft form of the updated guidance was sent to individuals for review in November and has been leaked. The new draft guidance is more conservative than previously expected and differs greatly from the 2002 guidance. Industry groups have asked EPA to release the new guidance in a draft form for public comment prior to finalizing the document.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Vapor intrusion

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$9.4 Million Asbestos Judgment Vacated Because Trial Judge Failed to Properly Assess Expert TestimonyDecember 3, 2012

In Barabin v. AstenJohnson Inc., 9th Cir., No. 10-36142, 11/16/12, the Ninth Circuit vacated a $9.4 Million jury verdict because the District Court judge failed to properly assess proffered expert testimony related to asbestos exposure at a paper mill. The Court of Appeals determined that both the relevance and reliability of the expert testimony were not properly scrutinized by the District Court in its role as "gatekeeper" of such evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

Henry Barabin worked at a paper mill from 1968 to 2001. The plant used dryer felts in the papermaking process. The dryer felts contained asbestos, which Barabin alleges exposure to through 1984. Barabin was later diagnosed with mesothelioma. Barabin proposed to offer expert testimony of an industrial hygienist to testify about the circulation of asbestos fibers in the plant, and that no level of asbestos exposure is safe. At trial, the defendants challenged the expert's qualifications and questioned the reliability and relevance of his opinions. The District Court originally ruled to bar the evidence, but later changed its decision based on the expert's prior expert testimony in numerous courts. At the conclusion of the trial, the jury awarded Barabin $10.2 million in damages, which was reduced to $9,373,152.12.

The Court of Appeals disagreed with the District Court, and held the appropriate admissibility hearing pursuant to Daubert should have been conducted prior to determining whether the expert testimony was admissible. "Unfortunately," the Court of Appeals stated, "because no Daubert hearing was conducted as requested, the District Court failed to assess the scientific methodologies, reasoning, or principals [the expert] applied. The Court of Appeals concluded the judgment must be vacated, and remanded the case to the District Court for a new trial."

Related Practice: Environmental & Land Use

Attorney: Anthony Juliano

Category: Asbestos

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ALERTNovember 26, 2012

The United States Environmental Protection Agency ("EPA") released final guidance regarding the disposal of PCB-Contaminated building materials. The new guidance provides that building materials with PCB-contaminated materials removed prior to disposal will be classified as PCB remediation waste and will have to be disposed of accordingly.

Also, EPA's Vapor Intrusion Guidance should be issued by the end of the year.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Vapor intrusion

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New Jersey Appellate Division Finds Liability For Owner Who Fails to Conduct Due Diligence Pre-1993November 13, 2012

The Appellate Division adds uncertainty to property owners for Spill Act liability in New Jersey State School Development Authority v. Marcantuone et al. This decision has opened the door for the court to set the due diligence standards for liability for pre-1993 property purchases, rather than the Legislature.

The plaintiff sued the former owners of a property, which was condemned by the State, seeking contribution for costs associated with the remediation pursuant to the Spill Act. The Trial Court dismissed the case on defendants' summary judgment motion, based upon the uncontested fact that no contamination occurred during the defendants' ownership and that they had purchased the property prior to 1993.

Plaintiff appealed arguing that the 2001 Amendments to the Spill Act and the defense of all appropriate inquiries presupposes the existence of liability for owners of contaminated property who fail to conduct environmental due diligence. The defendants countered that the legislature did not expressly provide that all persons who acquired title prior to 1993 were in any way responsible for pre-acquisition discharges and if the legislature had wanted to expand the liable parties for property contamination it would have specifically done so. The trial court relied on the White Oak decision to interpret "in any way responsible." On appeal, the plaintiffs argued that the White Oak decision was superseded by the 2001 Amendments to the Spill Act, which were adopted prior to the release of the White Oak decision and became effective one week after the decision. The Appellate Division was persuaded by the plaintiff's argument.

The Appellate Division reversed the trial court's dismissal finding that the defendants can be found "in any way responsible" for the hazardous substances on the property by virtue of their lack of due diligence in discovering the contamination when they purchased the land.

The Appellate Division directed that, on remand, the trial court must first determine what the generally accepted good and customary standards were at the time the defendants acquired title to the property. The defendants then can present evidence as to what pre-purchase efforts and investigation they undertook. The Court concluded that "liability will depend upon whether defendants satisfied the prevailing standard as found by the court."

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Due diligence, Spill Act

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Hydraulic Fracturing Put on Hold in New York StateOctober 10, 2012

Although it appeared that Governor Andrew Cuomo would approve hydraulic fracturing, or as it is commonly referred, fracking, it appears that for now any approval is delayed. The Governor ordered a study be conducted of fracking and its impacts on public health. Following Governor Cuomo's decision regarding an additional study, it was announced that the New York State Department of Conservation (DEC) will restart the regulatory rule-making process over again. This process could mean that a decision regarding hydraulic fracturing would not occur until next year.

Many high profile environmentalists and celebrities have spoken out against hydraulic fracturing but it also means revenue and jobs for upstate New York citizens, many of whom support fracking.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Fracking

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Permit Extension Act ExtendedOctober 1, 2012

Governor Christie signed the Permit Extension Act "extension," on Friday afternoon, September 21.  The new law extends the previous "Permit Extension Act of 2008" until December 31, 2014.  Had this extension not been implemented, permits that had been extended under the last extension would have expired on December 31, 2012.  Importantly, the new law includes certain permits that were issued in the Highlands Planning Area and the Pinelands that expired previously because they were not covered in the original Permit Extension Act and its first extension.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: By Susan R. Rubright

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NJ Supreme Court Affirms that Spill Act Requires a Reasonable Link Between Discharge and Contamination to Hold an Operator LiableSeptember 28, 2012

In New Jersey Department of Environmental Protection, et al. v. Ofra Dimant, et. al., the New Jersey Supreme Court affirmed the Appellate Division's ruling that the New Jersey Department of Environmental Protection ("NJDEP") did not prove a nexus between a discharge by Defendant and the contamination in the groundwater.

NJDEP filed a New Jersey Spill Act claim for contribution and indemnification pursuant to the New Jersey Spill Act, N.J.S.A. 58: 10-23.11 to 23.24 ("Spill Act") against several defendants, including Sue's Clothes Hanger and its individual owners ("Defendant") alleging that the laundromat and dry cleaner was responsible for groundwater contamination on properties in Bound Brook. The only remaining Defendant in the case was the operator, who leased a unit of a strip mall that was north and northeast of the properties that had contaminated groundwater and had operated dry cleaning machines for the period of May 1987 to early 1987. NJDEP submitted evidence that there had been a pope leaking tetrachloroethylene ("PCE") and other contaminants that discharged onto the asphalt covered are at the exterior of the Defendant's unit during the period of Defendant's operations. Significantly, NJDEP did not investigate the leaking pipe discharge further to determine if the contents of the pope were entering the soils or the groundwater.

The trial court held the NJDEP did not prove a nexus between the alleged contamination from the Defendant's operations at the property and the groundwater contamination in the general area. The Appellate Division affirmed the trial court's ruling.

Justice LaVecchia wrote that NJDEP needs to demonstrate a nexus between the Defendant's discharge during its period of operation and the groundwater contaminate at issue. The Supreme Court held that NJDEP did not establish a nexus or pathway in this case. The court noted that there must be a reasonable link between the discharge, the discharger and the contamination at the specific site. In this case, NJDEP did not make the requisite connection showing how the PCE contaminated water dripping from a pipe that discharged to an asphalt covered area behind the unit during the period the Defendant leased the unit reasonably could have made its way into the groundwater.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Spill Act

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Governor Christie Vetoes Bill Banning Fracking in New JerseySeptember 27, 2012

A bill overwhelmingly passed by both the New Jersey Assembly and Senate in June, A-575, was vetoed this week by Governor Christie.  The bill would have prohibited the treatment, discharge, disposal, or storage in New Jersey, of wastewater from hydraulic fracturing in any state.  Governor Christie argued that the bill would have been illegal as a violation of the commerce clause of the United States Constitution.  While the legislature believes that the inclusion of "in any state" supports the legality of the bill, the Governor stated that because there will be no fracking wastewater or by-products generated in New Jersey, the bill is only neutral on its face.  Thus, the bill only applies to products from out-of-state, which would be subject to federal law.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Fracking

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EPA Adds Essex County Site to National Priorities List for Superfund Clean-upSeptember 21, 2012

The United States Environmental Protection Agency (EPA) added the Orange Valley Regional Groundwater Contamination site in Orange and West Orange, New Jersey to the National Priorities List (NPL) for clean-up under the Superfund program. The EPA reports that the public supply wells were found to contain tetrachloroethylene (PCE), trichloroethylene (TCE) and cis-1, 2-dichloroethylene (cis-1, 2-DCE) in the Orange Park and Gist Place wells, with PCE and TCE exceeding the EPA Safe Drinking Water Act maximum contaminant levels (MCLs).

These two wells serve 10,000 people and there is another nearby well that cannot be used because of contamination. The Orange Water Department has installed treatment systems to remove volatile organic compounds (VOCs) from the ground water and treats it prior to distribution. The water quality and treatment system are monitored regularly according to EPA.

New Jersey identified this site to EPA. These are 54 proposed sites awaiting agency action including Matlack, Inc. in Woolwich Township, New Jersey and Riverside Industrial Park in Newark, New Jersey.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Superfund

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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."

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Energy, Solar

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New Jersey Appellate Division Invalidates DEP Landowner Chemical ExemptionJuly 18, 2012

On July 6, 2012, the New Jersey Appellate Division published its decision in Des Champs Laboratories, Inc. v. Martin, A-3235-10, and ruled certain Department of Environmental Protection ("DEP") regulations that bar sales of industrial properties containing trace amounts of hazardous substances are invalid. Specifically, the Court was asked whether the Industrial Site Recovery Act of 1993 ('ISRA"), the Site Remediation Reform Act of 2009 ("SRRA"), or any other statue authorities the DEP to impose obligations upon the owners of industrial establishments that stored or handled small quantities of hazardous substances, as a condition of obtaining a "de minimis quantity exemption" ("DQE") from ISRA requirements.

By way of background, the Environmental Cleanup Responsibility Act of 1983 ("ECRA") required properties with environmental issues to be "in an environmentally appropriate condition" prior to being sold. In order to ensure same, owners planning to close industrial businesses were required to complete an arduous process regulated by the DEP, or risk having a subsequent sale or business transfer invalidated. As the ECRA evolved, it became clear that its obligations upon owners and operators that handled only "de minimis" quantities of hazardous substances were too onerous, leading the DEP to promulgate regulations for a DQE. The DQE allowed for an owner or operator to simply sign an affidavit stating the site was not subject to the discharge of hazardous substances, or that any such discharge had been remediated.

In Des Champs, the Court was asked to determine the validity of regulatory provision N.J.A.C 7:26B-5.9 requiring the affidavit from a DQE applicant to certify the property where the de minimis quantities have been present is now "clean," and the validity of related provisions within regulatory provision N.J.A.C. 7:26B-5.9 requiring such applicants to remediate the property if the DEP disapproves the DQE application, and the application is not withdrawn.

From 1982 through 1996, Des Champs Laboratories operated an industrial establishment in Livingston, New Jersey assembling heat recovery ventilators. In 1996 Des Champs' environmental consultant submitted a General Information Notice and a Preliminary Assessment Report to the DEP, which were required by ISRA in anticipation of Des Champs terminating its operations at the Livingston site. Des Champs also submitted a Negative Declaration Affidavit to the DEP in January of 1997, certifying "there have been no discharges of hazardous substances or hazardous wastes from the industrial establishment." In response, the DEP issued Des Champs a "no further action" letter authorizing it to cease operations. Later in 1997, the property was sold to R&K Associates.

Eight years later, the DEP was investigating the potential source of ground water contamination in Livingston, and determined the source of the contamination originated in Des Champs' former property.  The DEP therefore issued Des Champs a letter rescinding its 1997 "no further action" letter, and notifying Des Champs it "no longer had the required authorization that allowed the sale of property to occur in 1997." The DEP further instructed Des Champs that in order to regain compliance with ISRA, an application for remediation was to be submitted within fifteen (15) days of receiving the notification.  Lastly, the DEP directed Des Champs to conduct an investigation of its former site to further define the source of ground water contamination, and to submit a preliminary assessment and site investigation report with the appropriate review fees for further review by the DEP, within one hundred eighty (180) days.

Rather than complying with the DEP's direction, Des Champs submitted to the DEP a DQE affidavit on March 23, 2009 pursuant to N.J.S.A. 13:1K -9.7 and N.J.A.C. 7:26B -2.3 (now N.J.A.C. 7:26B-5.9). In the accompanying correspondence, Des Champs's counsel noted that because Des Champs handled a de minimis quantity of hazardous substances, its operations were exempt from ISRA. On April 21, 2009, the DEP denied Des Champs' application for DQE stating "the overlying presumption that an industrial establishment, without regard to fault, should not qualify for a DQE when contamination is known to exist at the site." After additional correspondence, neither Des Champs nor the DEP changed its position. As a result, on September 30, 2010, the DEP issued a directive pursuant to the New Jersey Spill Act (N.J.S.A. 58:10-23.11) directing Des Champs to hire a licensed site remediation professional to perform the remediation; to complete delineation of the immediate environmental concern contaminant source; to conduct remediation; and the establish a remediation funding source.

After analyzing the overview of the statutory framework and the history of the corresponding regulatory provisions, the Court ruled the DEP had exceeded its statutory authority "by injecting into the DQE process a requirement that the governing statutes do not authorize, i.e., forcing an applicant that has only handled or stored de minimis quantities of hazardous materials to provide a certification that the property is free of contamination before its operations can be closed or title to its property transferred." The Court found the DEP actions to be inconsistent with the intent of the SRRA and the ISRA, which both sought to streamline the regulatory process, and minimize government involvement. The Court's decision, however, was made without prejudice to the DEP's ability to seek a cleanup of such an industrial site under other environmental statutes and regulations that are not tied to the DQE approval process.

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Affordable Housing Funds May Be Seized By StateJuly 18, 2012

Gov. Chris Christie's plan to use up to $200 million in municipal affordable housing trust funds that have sat idle for four or more years, has not been stopped by the New Jersey Appellate Division.  However, local governments that are fighting the loss of the funds must be given a chance to demonstrate to the Council on Affordable Housing (COAH) that they have entered into legally binding commitments to spend the funds.  The Fair Share Housing Center and the New Jersey State League of Municipalities, usually on opposite sides of the table from each other, in this particular matter were in agreement and had sought to temporarily enjoin the administration from taking the uncommitted money.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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NYSDEC Announces Final Cleanup Plan for Harbor at Hastings Hudson River SiteMay 18, 2012

The New York State Department of Environmental Conservation (NYSDEC) after many years of remedial investigation announced the final cleanup plan for contaminated sediments in the Hudson River adjacent to the former Harbor at Hastings site. The plan provides for the removal of 60,000 cubic yards of contaminated soils and 24,000 cubic yards of sediment containing polychlorinated biphenyls (PCBs) and metals. The cost of the on-site and off-site remediation is estimated to be more that $250 million. Wire and cable manufacturing caused the release of PCBs and metals to the soil, groundwater and sediments at the site. The site is located on 28 acres along the Hasting-on-Hudson waterfront. The landmass was constructed in the early 1900s by placement of fill material into the Hudson River.

The Record of Decision (ROD) amends the March 2004 ROD for remediation of the on-site contamination and provides a remedy for the off-site contamination, particularly in the Hudson River. The ROD was finalized this year after a 60-day comment period.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Site remediation

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Beginning May 7th LSRPs Cannot Issue RAOs for UHOTsMay 7, 2012

On May 7, 2012, the Administrative Requirements for the Remediation of Contaminated Site (ARRCS) rules will be amended to provide that the New Jersey Department of Environmental Protection (NJDEP) will issue a No Further Action (NFA) letter to a person responsible for conducting the remediation of a discharge from an unregulated heating oil tank (UHOT) if it is the only area of concern (AOC) at the site.  The amendment will delete the provision that allows the Licensed Site Remediation Professional (LSRP) to issue a Remedial Action Outcome (RAO) where the UHOT is the only AOC.  An LSRP does not have to submit an LSRP retention or dismissal form if he or she is only remediating the UHOT.  If the site has AOCs in addition to the UHOT, and LSRP must issue an RAO for the whole site, including the UHOT.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: LSRP, Site remediation

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Hess Corp. Agrees to Settlement with EPA for Clean Air Act ViolationsApril 27, 2012

The Hess Corporation ("Hess") has settled a lawsuit regarding Clean Air Act violations with the United States Environmental Protection Agency ("EPA") including payment of an $850,000 civil penalty and $45 million in new pollution controls for its Port Reading, NJ refinery.  The controls required by the settlement are estimated to reduce emissions of nitrogen oxide (NOx) by 181 tons per year and result in additional reductions of volatile organic compounds (VOCs).  The settlement requires new and upgraded pollution controls, more stringent emission limits and aggressive monitoring, leak-detection and repair practices to reduce emissions from refinery equipment and processing units.  The State of New Jersey will receive half of the $850,000.  The consent decree, filed in the District of New Jersey, is subject to a 30-day public comment period and court approval.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Clean Air Act

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NJDEP Fails to Establish Its Burden of Proof and Appellate Division Upholds Denial of Natural Resource DamagesApril 9, 2012

In New Jersey Department of Environmental Protection, et. al. v. Essex Chemical Corporation, the New Jersey Appellate Division affirmed a trial court decision that the New Jersey Department of Environmental Protection (NJDEP) did not carry its burden of proof that Essex Chemical Corporation (Essex) is responsible for natural resource damages. Essex owned property in South Brunswick, which it sold in 1985. Prior to the sale, Essex identified various locations where discharged hazardous, non-chlorinated and chlorinated chemicals had leaked into the soil and groundwater. Essex developed a plan with the NJDEP Site Remediation Program (SRP) to implement a remediation plan for the property.

From 1985 to 1992, Essex removed tanks, excavated contaminated soil and installed a pump-and-treat system to handle to groundwater contamination. In 2001, the system reached an "asymptotic mean," which means the system stopped removing contamination when the levels of contaminant dropped to very low amounts. Thus, Essex with SRP approval, implemented a new plan involving in-situ chemical oxidation, which involves the injection of a reactive solution into the groundwater to change the contamination into non-hazardous chemical by-products. This process worked and the western portion of the property was cleaned up. On the northern and western sides of the property, Essex implemented a soil vapor extraction system, which substantially reduced but did not eliminate the contamination.

Essex, with SRP approval, changed the remediation plan to add a pump-and-treat system to clean the groundwater. By 2004, the system reached an asymptotic mean and Essex, with SRP approval, added in-situ bioremediation, which reduced the soil and groundwater contamination to near or below pre-discharge restoration levels. Essex had spent $5 million to remediate and the SRP believed Essex had done what it needed to do for the remediation, although there was still minimal contamination in the bedrock.

Essex then began remediation of an adjacent property, which was contaminated as the result of Essex's operations. Essex proposed in-situ bioremediation to address the contamination on the adjacent property.

NJDEP offered two experts to support its claims for natural resource damages. These two experts proposed a plan to restore the shallow groundwater to pre-discharge levels within ten years by physically removing the contaminated groundwater and the associated soils by excavation and then flushing the remaining areas of contamination with clean groundwater by using a groundwater extraction trench. The cost associated with this plan was $5.7 million. NJDEP's expert testified that soil excavation is more expensive than other plans, such as bioremediation, but that it works better because the contamination is physically moved and that it would be completed within ten years.

Essex's expert testified that additional soil extraction was unnecessary and would be ineffective. He testified that NJDEP's plan would become ineffective when it reached its asymptotic mean and another technique would be required.  He testified that the in-situ bioremediation plan was a more effective treatment technology and had already worked well on the property. He testified that it was the most cost-effective plan and it could be re-applied if necessary until the property reached its pre-discharge conditions.

NJDEP also sought compensatory damages and presented an expert who testified that there are two approaches to measure compensatory damages. The first approach is a valuation approach, which seeks to directly value the resource. The other is a resource compensation or resource-to-resource approach, to determine how much restoration would be needed to offset the natural resource injuries. The expert utilized the "Resource Equivalency Approach" (REA), which involved NJDEP purchasing the property at a price based upon a market analysis, in order to protect that land from future contamination. Essex's expert testified that one must consider the natural resource's lost services when calculating the damages. He testified that NJDEP did not identify any lost services or uses from the contaminated groundwater, thus the natural resource damages would be zero.  He also testified that the plan to purchase the property was not an appropriate way to measure damages. He testified that that plan would provide natural resource uses beyond groundwater preservation and result in a windfall to NJDEP.

The trial court found that NJDEP did not meet its burden of proof. The trial court held that NJDEP did not show why the property needed to be remediated within ten years and why Essex's plan would not work. The trial court noted that there had been no injury to flora or fauna and that the groundwater contamination has not affected the health and/or safety of the people in New Jersey. Try trial court also found that NJDEP did not meet its burden regarding compensatory damages as NJDEP's expert utilized information regarding asking prices for residential, commercial and industrial properties within a 20-mile radius, which the court found inaccurate and insufficient. The court also questioned the REA method of calculation as there had been no harm to human health or wildlife.

NJDEP appealed the decision in part arguing that it should have been given deference as the trustee of the State's natural resources. The Appellate Division held that NJDEP still had to establish by a preponderance of the evidence that its plan should be implemented rather than Essex's plan and to establish the damages associated with the contamination. NJDEP also argues that Essex's plan does not include a timeframe for completion. The Appellate Division upheld the trial court's decision regarding natural resource damages and held that plaintiffs did not show that the groundwater contamination adversely affected the public health, safety and welfare thus they did not show any benefit to implementing NJDEP's plan. The Appellate Division also upheld the trial court's decision regarding compensatory damages based upon the analysis used by NJDEP's expert.

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EPA Adds New York Site to Superfund National Priorities List and Proposes to Add New Jersey SiteApril 5, 2012

The United States Environmental Protection Agency (EPA) added nine new hazardous waste sites that poses risks to people's health and the environment to the National Priorities List (NPL) of Superfund sites. Since 1983, 1,661 sites have been added to the NPL, 359 of which have been cleaned up. Upon adding a site to the NPL, EPA looks to identify companies or people responsible for the contamination at the site and require them to conduct the remediation or to pay for the cleanup. It may be several years before EPA finds the responsible parties and obtains the funding to conduct the cleanup.

Of those nine sites, the Eighteenmile Creek in Niagara County, New York was added.

EPA also proposed an additional ten sites to be added to the NPL, including Orange Valley Regional Ground Water Contamination (contaminated ground water plume) in Orange/West Orange, New Jersey.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Superfund

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U.S. Supreme Court Allows Judicial Review of EPA's CWA Order in Sackett, et. al. v. EPAMarch 29, 2012

In an unanimous opinion, the United States Supreme Court reversed and remanded the lower court’s decision and ruled that the petitioners may bring a civil action to challenge the United States Environmental Protection Agency’s compliance order pursuant to the Administrative Procedure Act (APA) and that the Clean Water Act (CWA) does not preclude review under the APA.

In this case, the EPA issued a compliance order to the Sacketts alleging that the land they purchased and filled in is a wetland and is subject to the CWA. The EPA ordered that the Sacketts remove the fill and restore the land or face civil penalties of up to $32,500 per day of violation, or administrative penalties of up to $11,000 per day of violation. The Sacketts requested a hearing with EPA to contest this order, but EPA denied them a hearing. The Sacketts filed an action with the United State District Court for the District of Idaho. The District Court granted EPA’s motion to dismiss for subject matter jurisdiction and held that the CWA precludes judicial review of compliance orders before EPA has started an enforcement action in federal court. The Ninth Circuit Court of Appeals held that the language and structure of the CWA is intended to preclude pre-enforcement of judicial review in administrative compliance orders. The Ninth Circuit also held that the CWA provides that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order.

The Supreme Court held that the EPA’s compliance order is a final agency decision for which there is no adequate remedy except APA review. Justice Scalia noted that the EPA’s decision had all of the hallmarks of finality and that EPA had “determined rights or obligations,” requiring the Sacketts to restore their property through the agency’s plan and to provide EPA with access. Justice Scalia also wrote that “legal consequences flow” from the compliance order, including severe financial penalties and the order “marks the consummation of EPA’s decisionmaking process.” Furthermore, Justice Scalia wrote that a civil action brought under the APA provides for judicial review, but only EPA can bring such an action, and until it does, the Sacketts were subject to financial penalties. Thus, the compliance order in this case is a final agency decision.

The Court then considered whether the CWA precludes judicial review such that the APA review would not apply. Justice Scalia noted that the CWA does not expressly preclude judicial review. The government argued that the review mechanisms of the CWA are open to the Sacketts and they do not need review under the APA. The Court held that the government’s arguments do not support an inference that the CWA’s statutory scheme precludes APA review.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Clean Water Act

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NJDEP Announces First LSRP ExaminationMarch 26, 2012

The New Jersey Department of Environmental Protection (NJDEP) announced that the Licensed Site Remediation Professional Licensure Examination will be held on May 14, 2012. The examination will be held at two locations in New Jersey.

The Licensed Site Remediation Professional Licensure Examination application and instructions can be found at http://www.nj.gov/dep/srp/srra/lsrp/application.htm

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ASTM Issues New Guidance to Comply with CERCLA Continuing ObligationsMarch 8, 2012

ASTM International, Inc. has released guidance ASTM E2790-11 to provide procedures to assist users to satisfy continuing obligations applicable to the innocent landowners, the contiguous property owner (CPO), and the bona fide prospective purchaser (BFPP) protections from CERCLA liability (collectively referred to as the "Landowner Liability Protections," or "LLP"). This guidance presumes that a valid phase l or another report that satisfies the "all appropriate inquiries" test has been conducted at the property.

This guidance is intended to cover properties where chemicals of concern are known to have been (1) released on the property prior to acquisition by the current property owner, (2) are present at the property after acquisition by the current property owner due to migration from neighboring property, or (3) are discovered after property transfer where the Phase l (or other "all appropriate inquiries" document) provided no reason to know of the presence of chemicals of concern prior to transfer.

The continuing obligations and requirements set forth in the Brownfields Amendments to CERCLA include: (1) complying with any land use restrictions established or relied upon in connection with a response action at a property; (2) not impeding the effectiveness or integrity of any institutional controls employed at a property in connection with a response actions; (3) taking reasonable steps with respect to releases of hazardous substances, including stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental or natural resource exposure to prior releases of hazardous substances; (4) providing full cooperation, assistance and access to persons who are authorized to conduct response actions or natural resource restoration at a property; (5) complying with information requests and administrative subpoenas; and (6) providing legally required notices with respect to releases of any hazardous substances at a property. There are additional "continuing obligations" under CERCLA such as legally required notices, allowing access and coooperating with governmental regulators, which are not part of this guidance.

The ASTM Guidance sets forth the following steps for compliance:

(1) Review the Phase l to determine whether continuing obligations apply. If they do not, prepare a statement of no continuing obligations.

(2) If the property is subject to continuing obligations, a review and evaluation of the environmental conditions and the activity and use limitations at the property must be conducted.

(3) An evaluation must be made as to whether institutional controls, land use restrictions and/pr recognized environmental conditions exist at the property.

(4) If the answer to (3) is yes, then continuing obligations must be performed. The continuing obligations plan must be prepared and any initial continuing obligations executed.

(5) Perform continuing obligations.

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Temporary License Site Remediation Professional Application Deadline is April 1, 2012February 24, 2012

In a little over one month, the New Jersey Department of Environmental Protection (NJDEP) will not process any new applications for temporary licensure for Licensed Site Remediation Professionals (LSRPs). According to the NJDEP, there are 527 temporary LSRPs, with six added in January. Out of the 527 temporary LSRPs, 329 have submitted documents. The temporary LSRPs have submitted a total of 1,136 remedial action outcomes, of which 843 have been inspected and reviewed by NJDEP.

All applications for temporary LSRP licensure will be returned if they are received after April 1, 2012. According to the NJDEP's announcement, decisions regarding temporary license applications will be made by April 30, 2012.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: LSRP, Site remediation

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NJDEP Clarifies Status of ACOs and RAsFebruary 21, 2012

The New Jersey Department of Environmental Protection ("NJDEP") released a notice to clarify the status of Administrative Consent Orders ("ACOs") and Remediation Agreements ("RAs") resulting from the Brownfield and Contaminated Site Remediation Act amendments in 2009. NJDEP advises that "the Brownfield Act amendment mandate that remediation proceed without prior Department approval and under the oversight of a Licensed Site Remediation Professional (LSRP)." This includes all parties conducting a remediation pursuant to an ACO or a RA

NJDEP notes that when a party enters the LSRP program, it will hold in abeyance all ACO/RA-specific timeframes, NJDEP pre-approval of reports, workplans and progress reports. NJDEP continues that "parties are expected to proceed with remediation using an LSRP in accordance with N.J.A.C. 7:26C-2.4, and to meet all regulatory and mandatory timeframes contained in the applicable rules, including N.J.A.C. 7:14B, N.J.A.C. 7:26B, N.J.A.C. 7:26C and N.J.A.C. 7:26E."

The ACO/RA will remain in effect, and all other requirements such as remediation funding source, remediation funding source surcharge and penalty provisions, continue. The ACO/RA is not terminated until completion of the remediation or a remedial action permit is in effect for the remaining remediation.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: LSRP, Site remediation

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NJDEP Releases Long-Awaited Vapor Intrusion Technical GuidanceJanuary 23, 2012

The New Jersey Department of Environmental Protection ("NJDEP") released and posted its new Vapor Intrusion Technical Guidance ("VIT Guidance"). The VIT Guidance replaces the Vapor Intrusion Guidance ("VIG"), which was released in October of 2005.  The VIT Guidance was issued to assist responsible parties and investigators in evaluating contamination at properties to help them comply with NJDEP requirements and assess vapor intrusion pathways.  Vapor intrusion is the migration of volatile chemicals from the subsurface into overlying buildings.  NJDEP's vapor intrusion screening levels can also be found on the website.

The VIT Guidance sets forth a five-stage strategy that an investigator should use to assess the potential for vapor intrusion.  These stages are:

(1) VI Receptor Evaluation: wherein the investigator assesses potential for vapor intrusion and identifies pathways;
(2) VI Investigation: the investigator evaluates the data using applicable screening levels and develops and implements the investigation;
(3) Mitigation: determine and implement the appropriate mitigation;
(4) Operations, Maintenance and Management: the investigator establishes a long-term monitoring/maintenance program; and
(5) Termination: assessment of the ability to terminate the mitigation.

NJDEP also recommends utilizing the Decision Flow Chart and the Vapor Intrusion Timeline, which are attached as Appendices A and B respectively, to assist in the evaluation of vapor intrusion.

The VIT Guidance can be found on NJDEP's website:

http://www.nj.gov/dep/srp/guidance/vaporintrusion/index.html

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Vapor intrusion

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NJDEP Announces Expansion of E-Permitting for Land UseJanuary 13, 2012

Commissioner Bob Martin announced today that the New Jersey Department of Environmental Protection ("NJDEP") is expanding online permitting which will allow property owners and their contractors to apply online for certain types of freshwater wetlands permits. NJDEP has sought to use online permitting in an effort to simplify the permitting process to promote development in New Jersey.

While e-permitting has been used in other areas of NJDEP, last year the NJDEP began online permitting to allow applicants to apply for two types of waterfront development permits in coastal areas. Applicants are required to complete a short list of questions and to certify the responses. The applicants will then receive an automated acceptance or rejection.

In his announcement, Commissioner Martin noted that e-permitting provides "property owners and their contractors with a more customer- friendly and easier-to-navigate way to apply for and receive rapid decisions on two common types of land use permits, while still requiring applicants to meet the same high environmental standards."

NJDEP is expected to introduce later this year an online process to submit wetlands delineations, which will then be collected and stored in a NJDEP database for use by future property owners.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Land Use

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Happy New Year...There are 125 Days Left to Ort-In to the New Jersey LSRP Program for Site RemediationJanuary 3, 2012

Pursuant to New Jersey's Site Remediation and Reform Act ("SRRA"), on May 7, 2012, all remediating parties must retain a licenses site remediation professional ("LSRP") and proceed with remediation without the pre-approval or case management of the New Jersey Department of Environmental Protection ("NJDEP"). Many parties have already opted-in to the LSRP program and have begun clean-up sites without NJDEP approval of all activities. The is also a new framework of mandatory and regulatory timeframes that must be met as the result of SRRA and the NJDEP's Administrative Requirements for the Remediation of Contaminated Sites ("ARRCS"). All forms and information are available on the NJDEP website.

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Mayor Bloomberg Continues to Take Aggressive Steps to Protect and Improve the City's EnvironmentDecember 29, 2011

On December 27, 2011, New York Mayor Michael Bloomberg signed into law eight bills that had previously been passed by the City Council. Among those bills were three bills to reduce carbon emissions, improve water and air quality and limit waste (Introductory Nos. 576-A, 578-A and 592-A) in New York City. The Mayor remarked at the signing that Introductory Bill 576-A "improves the protection of the City's water and sewer systems by requiring construction sites to collect concrete washout water for proper disposal." Concrete washout water is extremely harmful to the public and this legislation will help to keep it out of the City's sewer system.

Introductory Bill 578-A requires a minimum of 30 percent recycled content in new asphalt used in the City. This law will save more than $2 million annually and will also remove more than 66,000 tons of asphalt from landfills every year.

Introductory Bill 592-A requires that all new HVAC units installed in the City have filters that keep out small particles of 2.5 microns or more. The Mayor observed that New Yorkers spend much of their time indoors and that these new standards will help keep toxins from entering people's homes and businesses.

The Mayor's Green Codes Taskforce resulted in the recommendations that led to this legislation.

Mayor Bloomberg and the City Council continue to push environmental legislation above and beyond that of the state and other cities. On December 19, 2011, the City Council voted on two bills previously approved by the Mayor related to notification and reporting of polychlorinated biphenyls ("PCBs") in schools. Under the legislation, the Department of Education ("DOE") must notify parents, students and employees of PCB testing and inspection results in the City's schools within seven days of receipt of the results. The legislation also requires that the City advise what steps it will take and how long it will take to clean up the PCBs. If the plan or timeframe changes, the City must advise parents and employees. The second bill requires the DOE to submit an annual report to the City Council on its progress addressing PCBs in window caulk and its efforts to remove PCBs from all light fixtures. This information will be available on the DOE's website.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: By Lindsay P. Cambron

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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.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Energy, Solar

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U.S. Supreme Court to hear Two Environmental Cases in 2011-2012 TermSeptember 28, 2011

PPL Montana, LLC v. State of Montana
PPL Montana, LLC (PPL) owns and operates dams licensed by the federal government by the Federal Energy Regulatory Commission (FERC) pursuant to its authority under the Federal Power Act (FPA) on the Missouri, Madison and Clark Fork rivers. PPL filed a declaratory judgment action in state court on November 12, 2004 against the State of Montana (State) contesting the State's ability to seek compensation for PPL's licenses user of its dams. The State filed a counterclaim and maintains that is has title to the riverbeds and has since Montana acquired statehood under the "equal footing doctrine", and that PPL is required to pay for the use of the riverbeds. Under this doctrine, at the time a new state entered the Union, the federal government passed trust ownership of the navigable waters and the underlying riverbeds to the state. Both parties presented experts and thousands of pages of evidence regarding the use of the rivers and whether they were "navigable" at the time that Montana entered the Union, in 1889. The trial court awarded damages in the amount of more than $40 million in back lease payments and future lease payments for the PPL to continue to use the waters.

The Montana Supreme Court upheld the lower court's decision that (1) title to the riverbeds of the Missouri, Clark Fork and Madison rivers transferred to Montana when it became a state in 1889: (2) the lower court's calculation of damages in the amount of $40,956,180 was supported by the facts; and (3) that the Land Board is responsible for the terms of any future lease.

The U.S. Supreme Court is asked to decide (1) if the constitutional test for determining whether a section of a river is navigable for title purposes is to require a trial court to determine, based on evidence, that the section of the river was navigable at the time the state joined the Union, or can the court deem the entire river navigable based upon present day recreational use: and (2) if a project licensed under the FPA, which requires economic analysis and state input, and for which easements have been obtained and substantial funds paid to private parties and the federal government having been told the riverbeds are owned by those parties, can the State retroactively claim title and impose millions of dollars of damages for back rent and future obligations?

Oral argument is scheduled for December 2, 2011.

Sackett, et al. v. EPA

Chantall and Michael Sackett own 0.63 acres of undeveloped land in Idaho, near Priet Lake. In 2007, the Sacketts filled in about one-half acre of the property with dirt and rock in preparation to build a house. On November 26, 2007, the United States Environmental Protection Agency (EPA) issued a compliance order alleging that the land is a wetland and is subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in the land without first obtaining a permit. EPA ordered that the Sacketts remove the fill and restore the land or face civil penalties up to $32,500 per day of violation or administrative penalties up to $11,000 per day of violation. The Sacketts sought a hearing with EPA, but the request was denied. The Sacketts filed an action with the United States District Court for the District of Idaho arguing that the compliance order (1) was arbitrary and capricious under the Administrative Power Act (APA); (2) was issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) was issued on an "any information available" basis which is unconstitutionally vague.

The District Court granted the EPA's motion to dismiss for subject matter jurisdiction and it concluded that the CWA precluded judicial review of compliance orders before the EPA has stated an enforcement action in federal court. The Sacketts appealed to the Circuit Court. The Ninth Circuit Court of Appeals held that the language and structure of the CWA is intended to preclude pre-enforcement of judicial review of administrative compliance orders. The Ninth Circuit also held that the CWA provides that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order.

The U.S. Supreme Court is asked to decide (1) whether petitioners can seek pre-enforcement judicial review of the administrative compliance order pursuant to the APA and, (2) if not, does the petitioners' inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?

Oral argument has not been scheduled yet.

The United States Supreme Court's 2011-2012 term opens on Monday, October 3, 2011.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Clean Water Act, Energy

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New Chemical Data Reporting Begins February 2012September 22, 2011

The United States Environmental Protection Agency (USEPA) issued its final Chemical Data Reporting rule (CRD) on August 2, 2011. The first CDR reporting period will run from February 1, 2012 through June 30, 2012, will include changes in mandatory electronic reporting and limits confidentiality claims by companies. The USEPA believes that the new rules will assist the agency with collecting information and identifying risks.

The CDR rule ammends certain parts of the Toxic Substances Control Act Inventory Update Rule (IUR). The CDR rule requires frequent reporting of critical information on chemicals. It also requires the submission of new and updated information relating to potential chemical exposures, current production volume, manufacturing site-related data, and processing and use-related date for a larger number of chemicals.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: By Frances B. Stella

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NJDEP Releases Final Proposed Rules to Implement SRRAAugust 17, 2011

On August 15, 2011, NJDEP issued its final proposed rule for the Site Remediation Act of 2009 ("SRRA") for public comment.  There will be a 60-day comment period and a public hearing on September 13, 2011.  Although lengthy, these Final Rules are intended to amend, repeal and issue new rules to implement SRRA through the Administrative Requirements for the Remediation of Contaminated Sites ("ARRCS").  The proposed rules attempt to clarify or resolve problems and inconsistencies with the current regulatory framework that have been brought to NJDEP's attention since May 7, 2009, the effective date of SRRA.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: Site remediation, SRRA

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Appellate Division Upholds NJDEP Regulations Regarding Oversight Cost Review ProcessJuly 18, 2011

In North Bergen I, LLC v. New Jersey Department of Environmental Protection, the Appellate Division dismissed an appeal by North Bergen I, LLC ("North Bergen"), which sought appellate review of a New Jersey Department of Environmental Protection ("NJDEP") December 23, 2009 letter regarding oversight fees and NJDEP's failure to forward North Bergen's dispute with NJDEP to the Office of Administrative Law ("OAL") for a hearing.

In December 1999, North Bergen purchased an industrial property formerly owned by Sier-Bath Co., Inc., later known as SBG Holding Corporation. North Bergen entered into a remediation agreement and has been cleaning up the property since that time, with NJDEP oversight.

North Bergen first challenged the NJDEP oversight fee in a letter dated July 27, 2007. North Bergen paid part of the invoice but refused to pay $23,838.30, advising that it was unreasonable and excessive. Pursuant to NJDEP regulations, it filed an "oversight cost review request," objecting to the June 24, 2007 invoice.

NJDEP regulations provide that an oversight cost review request must include the following information: (1) a copy of the invoice; (2) payment of all uncontested charges, including salary, additives, and fringe and indirect rate calculations, as applicable, if not previously paid; (3) a list of specific oversight cost charges contested; (4) the factual questions at issue in each of the contested charges; (5) the name, mailing address, email address and telephone number of the person making the request; and (6) information supporting the request or other written documents relied upon to support the request. The regulations provide in N.J.A.C. 7:26C-4.6(e) that if any of the information is not included in the request or the payment required by (d) above is not included, NJDEP shall deny the request for an ovesight cost review.

North Bergen continued to file requests for cost reviews utilizing the same general language as submitted in its first request. NJDEP rejected the requests and advised that North Bergen could try to resolve the dispute with NJDEP staff. They had a conference call regarding the invoices, but the matter was not resolved. In a letter dated December 23, 2009, NJDEP asked that North Bergen provide the specific charges which it believed were unreasonable and pay the acceptable charges. North Bergen filed an appeal of the letter.

The Appellate Division rejected North Bergen's appeal, finding that the December 23, 2009 letter was not a final agency decision. The Appellate Division found that NJDEP continued to seek more specific information from North Bergen regarding the unreasonable fees. Additionally, the Appellate Division held that the six specific requireements in the NJDEP regulations are necessary for the administrative agency to determine if there is a factual dispute, which could ultimately be transmitted to the OAL. The Appellate Division did not rule on whether the charges were excessive but instead directed North Bergen to exhaust its administrative remedies.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: By Lindsay P. Cambron

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NJDEP Will End Informal Requests for Extensions of Regulatory TimeframesMay 10, 2011

The New Jersey Department of Environmental Protection ("NJDEP") has allowed extensions for submittal of receptor evaluations that were due on March 1, 2011 if the responsible party submitted requests less than 20 days prior to the regulatory timeframe. It has also allowed informal requests for extensions for other regulatory timeframes. NJDEP is ending the informal extensions. After June 1, 2011 a request for an extension to a regulatory timeframe must meet the requirements at N.J.A.C. 7:26C-3.2 or it will not be eligible for the automatic approval described at N.J.A.C. 7:26C-3.2(c).

The responsible party must do the following to seek an extension to a regulatory timeframe:

(1) Submit a Remediation Time Frame Extension Request form, at least 30 days prior to the end date of the regulatory timeframe;
(2) Identify the regulatory timeframe, the end date of the regulatory timeframe, and the amount of time beyond the end date of the regulatory timeframe that is needed to comply; and
(3) Describe the cause of the delay and steps taken to minimize the delay.

Failure to properly request an extension may result in penalties. All regulatory timeframes for each facet of a remedial action should be properly docketed at the onset to avoid penalties for failure to submit the requisite information within the regulatory timeframe.

All forms and instructions are available on the NJDEP's website.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: By Lindsay P. Cambron

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EPA and Army Corps Issue Draft Guidance on Clean Water ActMay 2, 2011

The United States Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Army Corps") released draft guidance that is intended to describe the agencies' current understanding of which waters are covered by the Federal Water Pollution Control Act Amendments of 1972 ("Clean Water Act"). The draft guidance is not a rule and lacks the force of law. The EPA and Army Corps have presented its new guidance in this manner to allow all interested persons to provide comments and/or questions during the 60-day comment period.

The Clean Water Act was enacted by Congress in an effort to restore and maintain the nation's waters, but applies only to "waters of the United States." The identity of which waters are covered and how to make that determination has been the subject of litigation since its passage. There are regulations, as well as programs that involve local, state and federal funding when a body of water is identified as being covered by the Clean Water Act, making these matters highly contentious.

The guidance is in response to two United States Supreme Court decisions, which narrowed the scope of the Clean Water Act, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States. In SWANCC, the Army Corps denied a permit to site a solid waste landfill at land containing ponds used by migratory birds. The Supreme Court held that intrastate, non-navigable waters are not covered by the Clean Water Act based on use by migratory birds. In Rapanos v. United States, the Supreme Court held that the wetlands adjacent to a ditch that flowed into navigable waters extended beyond the traditional navigable waters and their adjacent wetlands and thus were not covered by the Clean Water Act. In Rapanos, four of the Justices agreed that the Clean Water Act covers relatively permanent waterbodies and wetlands with a continuous surface connection to them. Justice Kennedy concurred in the judgment but noted that waters should be covered if they have a "significant nexus" with traditional navigable waters. The United States has taken the view of Justice Stevens that either of these tests can be used to uphold jurisdiction of the Clean Water Act over bodies of water.

The draft guidance is divided into eight sections: Sections 1 and 2 address the classes of water subject to the Clean Water Act, traditional navigable waters and interstate waters. The third section provides guidance based upon Justice Kennedy's "significant nexus" standard. Sections 4, 5, and 6 describe whether certain types of waters: tributaries, adjacent wetlands, and other waters, are subject to Clean Water Act jurisdiction. Section 7 provides examples of waters that are generally not "waters of the United States." The last section provides guidance on the documentation necessary to support whether waters are protected by the Clean Water Act.

Comments are due July 25, 2011.

Following the comment period, the EPA and Army Corps will finalize the guidance and undertake rulemaking, which is expected to commence with a proposed rule.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Clean Water Act

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DEP Site Remediation Advisory Group MeetingApril 14, 2011

I attended the April 12, 2011 meeting of the New Jersey DEP Site Remediation Advisory Group as the representative of the New Jersey State Bar Environmental Section. This is my report on significant issues and topics discussed at the meeting.

    Regulations. The DEP technical regulations for site remediation have been substantially revised by the Department and are currently being reviewed by the Deputies Attorney General. The proposal of these rules is scheduled to be published in the June 6th or June 20th State Register. Proposed revised regulations covering administrative requirements for the remediation of contaminated sites (the so-called "ARRCS Rules") are about to be sent for Attorney General's Office review, and are also expected to appear in the June 6th or June 20th State Register. Each of the proposed rules will have a 60-day public comment period. Final adoption of these rules is scheduled for May 2012. A proposal on underground heating oil tank ("UHOT") regulations is scheduled to be published in July.

    Guidance Documents. The Site Remediation program is working on many new and revised technical guidance documents. So far, eight guidance documents have been proposed for comment on the DEP website, including documents on: alternative presumptive remedies, soil site investigations and remedial investigations, soil preliminary assessments and light non-aqueous phase liquids.

    Linear Construction. DEP is working on a new subchapter to be included in the ARRCS regulations to deal with linear construction projects. This applies mostly to utility work where the utility encounters contamination in its right-of-way which it did not cause. Under the proposed regulations, parties undertaking linear construction projects will have to hire an LSRP and utilize best practices, but the utilities will not be responsible for the contamination in the right-of-way which they did not cause. A report must be submitted at the end of the process, and separate guidance will be issued for this work.

    Remedial Priority System. The Site Remediation program is finishing up its Remedial Priority Scoring System for all sites. The two main issues involved in formulating the program are: (1) how to calculate remedial priority scores and (2) how to use the priority rankings once they are issued. A functional scoring system will be ready in June, at which time parties responsible for high-rated sites will be given the opportunity to see their scores and to present any evidence to the Department which they feel might reduce the scores. In the fall, the results will be released to the public, as all sites will be grouped in one of five priority rankings. The rankings will be updated semi-annually. Among other potential purposes, the rankings will be utilized by the DEP as a tool to determine which sites will be subject to mandatory direct oversight (i.e. sites that cannot utilize the LSRP program).

    LSRP Board. The LSRP Board is currently meeting every two weeks and has divided itself up into seven very active committees, including an audit committee, a licensing committee, a professional conduct committee, a finance committee, an outreach committee, a continuing education committee and a rulemaking committee. The Board's website is currently operational at www.nj.gov/lsrpboard.

    Current Statistics. Numerous statistics were recited at the meeting. Among the most significant are:

  • 466 receptor evaluations were submitted to DEP in March, and 771 have been submitted year to date.
  • 16,114 cases are currently in the Site Remediation Program, of which 2,155 are LSRP cases (either new or opt-in cases), 13,447 are classified as "other" (active or inactive sites subject to DEP oversight) and 512 are UHOT cases.
  • 358 Remedial Action Outcomes ("RAOs") have been issued by LSRPs to date, with DEP inspections and reviews completed.  Only one RAO has been invalidated.
  • 312 LSRP cases have been closed (some RAOs were for individual areas of concern, and did not close cases).
  • There are currently 455 temporary LSRPs.
  • The DEP Site Remediation case manager staff is down by 21 persons since last August.

    Current Site Remediation Briefs. DEP will be sending out a letter in May to responsible parties of record for all site remediation cases, telling them that they have one year to hire an LSRP for their case. Where the remedial process has stopped for a site (no report received for five years) DEP is sending letters to responsible parties telling them that their remediation is now being considered to be a new case, so that they must hire an LSRP in order to go forward. Site Remediation considers their two greatest problem areas to be: parties who will not meet mandatory deadlines and the lack of money available for publicly-funded cases. Regarding the developing LSRP Program, Assistant Commissioner for Site Remediation Dave Sweeney states: "We are still in compliance assistance mode." Currently, most enforcement efforts under the LSRP Program are directed at parties who have not entered the system.

    Forms. The numerous DEP forms that must be submitted under the Site Remediation program are in the process of being revamped and refined. It is anticipated that in the near future forms will be accepted for submittal online.

    HDSRF. Currently, no money is available to assist remediating parties from the Hazardous Discharge Site Remediation Fund ("HDSRF"). Consequently, the Department is issuing no HDSRF approvals for anyone and is discouraging applications. At the same time, the Department has begun a program of locating HDSRF monies that were previously awarded but not spent, and asking for the return of these funds, so that the pot of money can be replenished and grants and loans can again be made. The DEP is also exploring ways of making changes in the HDSRF Program to make it more sustainable.

    The next meeting of the Site Remediation Advisory Group will be on Tuesday, July 12th at 1:30 p.m.

Related Practice: Environmental & Land Use

Category: LSRP, Site remediation

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NJ Appelate Divistion Holds NJDEP Must Prove Nexus Between Discharge and Contamination Under Spill ActApril 14, 2011

In New Jersey Department of Environmental Protection, et al. v. Ofra Dimant, et al., Docket No. A-3180-09T2, the Appellate Division upheld the trial court's ruling that the New Jersey Department of Environmental Protection ("NJDEP") did not prove a nexus between a discharge by defendant and the contamination in the area.

NJDEP filed a New Jersey Spill Act claim for contribution and indemnification pursuant to the New Jersey Spill Act, N.J.S.A. 58:10-23.11 to 23.24 ("Spill Act") against several defendants, including Sue's Clothes Hanger and its individual owners ("defendant") alleging that the laundromat and dry cleaner was responsible for water contamination on properties in Bound Brook. The defendant occupied a unit of a strip mall that was north and northeast of the contaminated properties. There were also several other dry cleaners in the area as well as a gasoline station and two Superfund sites.

The defendant began its operation as a self-serve laundromat and a twice-per-week dry cleaner, after purchasing the property from another dry cleaner in May 1987. In early 1989, the defendant discontinued use of the dry cleaning machines and dismantled and sealed the discharge pipes, making the period of defendant's operations, for purposes of this case, May 1987 to early 1989. In 2000, the NJDEP investigator and geologist found that the potable wells with the highest levels of perchloroethylene ("PCE") in 1988 and 1989 were located behind the defendant's property and another dry cleaner. NJDEP took additional samples, which resulted in soil samples containing almost undetectable levels of PCE, trichloroethylene ("TCE"), and dichloroethylene ("DCE"), but groundwater samples above the maximum contamination levels ("MCL") for PCE and methyl tertiary butyl ether ("MTBE"), a gasoline additive. The investigator concluded that the defendant was the primary source of the contamination but that the presence of TCE and DCE indicated that the contamination had been there for a long time prior to 1988.

The defendant's expert also opined that the contamination was there prior to the defendant's business operations and certain contamination was from the upgradient gasoline service station. The NJDEP investigator and the defendant's expert had differing views of the direction of the flow of groundwater.

In 2004, NJDEP filed a complaint against the defendant, the strip mall owner, the other dry cleaner and the individual owners of the dry cleaner seeking contribution for the costs of the environmental remediation. The defendant filed an answer, counterclaim and third-party complaint against prior owners and operators, including the previous owners of their business. Several defendants settled with the NJDEP, while others filed for and received bankruptcy protection. The defendant was the only remaining party at trial. The trial judge found that the NJDEP did not establish by a preponderance of the evidence that there was a nexus between discharge by the defendant and the groundwater contamination on the adjacent properties. The judge held that even though the Spill Act provides for strict liability, there is a requirement that a nexus between the discharge and the consequent damages be proved. The judge made several other findings regarding the NJDEP's investigation, as well as the historic operations at the site. NJDEP appealed.

The Appellate Division noted that Spill Act cases are generally focused on the connection between the discharge and discharger and that the "in any way responsible" standard is usually interpreted very broadly. The Court does, however, note that the statute's definition of discharge specifically refers to a resulting damage. The NJDEP did not cite any cases in which a discharger is held liable under the Spill Act without some proof of damage. The Court held that it was NJDEP's burden to demonstrate that the defendant had some connection to the PCE contamination or had contributed to the contamination from previous site operations. The Appellate Division also upheld the trial court's finding that the NJDEP did not prove whether the defendant's predecessors had caused the contamination and not one of the other tenants in the strip mall; thus the defendant could not be found liable as the successor operator, even though it continued the business operations of the previous owner as there was insufficient evidence to establish a discharge.

This case demonstrates that it is critical to demonstrate that it is critical to demonstrate a nexus between a discharge and the contamination.

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NJDEP Issues Oversight Process Under SRRA For RCRA, CERCLA, and Federal Facility SitesApril 7, 2011

Pursuant to the Site Remediation Reform Act ("SRRA"), the New Jersey Department of Environmental Protection ("NJDEP") has a state to delineate which Resource Conservation and Recovery Act ("RCRA") sites, Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") sites, and Federal Facilities will be handled by the NJDEP and the United States Environmental Protection Agency ("USEPA")and which sites will require remediation under the direction of an Licensed Site Remediation Professional ("LSRP")Program in New Jersey by May 7, 2012.

For RCRA GPRA 2020 universe sites:

An LSRP will not be required for all sites that are on the USEPA's RCRA Governmental Performance and Result Act ("GPRA") 2020 universe list (which can be found at http://www.epa.gov/epawaste/hazard/correctiveaction/pdfs/2020scc.pdf) where the USEPA is the lead agency. NJDEP will continue to issue comments, but USEPA will provide the lead role. These sites will not have to follow the NJDEP's mandatory and regulatory timeframes, nor will they be required to pay the annual remediation fee. Sites listed on the RCRA GPRA 2020 universe list where NJDEP is the lead agency will be required to retain an LSRP by May 7, 2012, but there will still be a NJDEP case manager who will provide all approvals. These sites will also be required to follow the NJDEP's regulatory and mandatory timeframes, pay NJDEP's oversight fees, but not the annual remediation fee.

For RCRA non-GPRA 2020 universe sites:

At all RCRA sites that are not on the USEPA's RCRA GPRA 2020 universe list, the responsible parties must hire an LSRP by May 7, 2012, after which NJDEP will no longer provide oversight. These sites will be subject to all mandatory and regulatory timeframes, the LSRP will issue a Remedial Action Outcome ("RAO"), and they will be subject to the annual remediation fee.

For CERCLA sites and Federal Facilities:

At all CERCLA sites where USEPA is the lead agency and at Federal Facilities under Federal agreement, an LSRP is not required. At CERCLA sites where NJDEP is the lead agency, the responsible party must retain an LSRP by May 7, 2012. At CERCLA sites and Federal Facilities, NJDEP will continue to provide oversight and the annual remediation fee will not be required. If the remediation at CERCLA sites is being conducted as part of a Federal agreement or order, those sites will not be subject to the mandatory and regulatory timeframes. An RAO will not be required for these sites, but any party seeking a seeking a Final Remediation Document for use as part of a real estate transaction after May 7, 2012 must obtain an RAO from an LSRP.

This policy statement from NJDEP provides clarity for those who have a site that would fall into any of these is categories.

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EPA Postpones Deadline for GHG Emissions Reporting to September 2011March 21, 2011

EPA postponed its deadline for the reporting of greenhouse gas emissions from March 31, 2011 to September 30, 2011. An EPA rule issued in October of 2009 requires sources of greenhouse gas emissions of more than 25,000 metric tons of carbon dioxide equivalent annually to measure and report the various GHG emissions from each facility.

EPA postponed the reporting deadline while it is working on an electronic reporting tool to facilitate emissions reports. The electronic reporting tool needs further testing and is anticipated to be operational this summer to allow for emissions data to be finalized this year. EPA hopes that the delay will allow the industry to utilize and test the machine and provide feedback before mandatory reporting deadlines. Currently, this is just another data collection requirement with no other regulatory obligation beyond reporting, but this data will likely be used to increase GHG emissions regulatory and reduction obligations once EPA has a few years of data to rely upon.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: By Frances Stella

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First Municipal Brownfield Cleanup Program in the Nation Established in New York CityFriday, February 18, 2011

In August of 2010, Mayor Michael Bloomberg and the New York City Mayor's Office of Environmental Remediation (OER) commenced the first municipal Brownfields program in the nation. The New York City Brownfield Cleanup Program (NYC BCP) is designed to help land owners and developers clean up and redevelop abandoned or contaminated property in New York City. In 2003, New York State enacted its Brownfields Cleanup Program, but use of this program has been slow and there is uncertainty related to eligibility and to the benefits for developers from the state's program.

The NYC BCP attempts to make eligibility criteria more clear and more inclusive. The NYC BCP provides investigation and cleanup grants so that not-for-profit developers can reap the benefits that are often not available under Brownfields programs. Total grants can range to as much as $60,000 to $100,000. These grants can be used towards pre-development designs, environmental investigations and cleanups, technical assistance and environmental insurance.

Upon completion of the NYC BCP, a party can obtain a Notice of Completion and liability limitation against future environmental claims from OER. This provision is meant to encourage development as many other Brownfields programs do not provide such assurances to parties and their lenders.

To learn more about the NYC Brownfields Cleanup Program, see New York City's Office of Environmental Remediation's website: http://www.nyc.gov/html/oer/html/nycbcp/nycbcp.shtml

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Brownfields

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EPA to Consider Addition of Vapor Intrusion to HRSThursday, February 10, 2011

The Environmental Protection Agency (EPA) is seeking public comments on whether vapor intrusion should be added as a component of the Hazard Ranking System ("HRS"). The HRS is the primary tool EPA uses to place contaminated sites on the CERCLA National Priorities List ("NPL"). This change would allow EPA to address human exposure to contaminants that enter building structures through the subsurface environment as part of the HRS. Vapor intrusion explains the process by which hazardous substances in the ground migrate to the subsurface and enter buildings as a gas or vapor. This intrusion can cause human exposure to the hazardous substances, particularly through cracks in basements, building foundations and sewer lines.

The Government Accountability Office (GAO) recommended that EPA consider including vapor intrusion to the HRS. GAO concluded that if vapor intrusion is not added and listed on the NPL, those sites may not be addressed.

By adding vapor intrusion to the HRS, EPA will be able to identify locations where people are exposed or potentially exposed in dwellings, workplaces, or other structures or enclosures.

EPA will conduct public listening sessions in Arlington, VA on February 11, 2011. There will also be listening sessions held in San Francisco and Albuquerque.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: CERCLA, Vapor intrusion

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Oversight Fees to NJDEPMonday, January 24, 2011

In order to get the long awaited No Further Action ("NFA") letter from NJDEP, one of the perquisites requires payment of NJDEP's oversight fees. Also, under SRRA, before transferring an on-going remediation into the NJ LSRP program, a party is required to pay all outstanding NJDEP oversight fees. Oversight fees can be expensive. It is important to remember that there are caps or limits on the amount NJDEP can charge in oversight fees.

N.J.S.A. 58:10B-2.1(d) provides that "the department shall not establish or impose a fee for the oversight of any cleanup and removal of a discharged hazardous substance or for the remediation of a contaminated site that includes direct program costs and indirect costs which together exceed 7 1/2% of the cost of the remediation of a contaminated site or for the cleanup and removal of a discharged hazardous substance. "The effective date of this provision of the statute was July 1, 2002. N.J.A.C. 7:26-4.5(e) defines oversight costs as "direct program costs + indirect program costs + expenses" to calculate the oversight charges.

Upon receipt of the NJDEP oversight costs invoice obtained before NJDEP will issue a NFA letter, a review of all NJDEP oversight costs charged since July 1, 2002 should be conducted, and overcharges should be raised with the Department. Likewise, a review of all oversight fees charged up to the point where a site is transferred to the LSRP program should also be evaluated to determine if the oversight fees exceed the statutory limits, before paying all the costs. NJDEP will not unilaterally cut its own bills if no objections are raised.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

Category: LSRP, SRRA

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Governor Christie Addresses Barnegat BayWednesday, January 19, 2011

On January 5, 2011, Governor Chris Christie signed into law three bills that aim to restore the health of the 660-square-mile Barnegat Bay watershed, which reaches almost all of the municipalities of Ocean County, NJ, as well as some in Monmouth County. Governor Christie outlined a 10-point Barnegat Bay restoration plan in December of 2010. The recently signed laws will address some of these issues.

The Oyster Creek Nuclear Generating Station in Forked River will be closed down by the end of 2019. The Administration believes that this is the best solution to ensure that Oyster Creek withdrawals from the Bay for cooling purposes do not damage the ecological health of the Bay.

Bill A-2290 establishes strict standards to control the amount and content of fertilizer utilized on lawns, runoff from which ends up in the Bay. Homeowners are barred from applying fertilizer before or during a heavy rainfall and from November 15 through March 1 or anytime the ground is frozen. Additionally, one year from enactment, the bill bans the use by homeowners of fertilizer with less than 20 percent of its nitrogen in slow release form, and two years after enactment, the bill prohibits the sale or application of fertilizers containing phosphorus.

Bill A-2501 updates the standards on soil erosion and sediment control to address the problem of construction sites where soils are so compacted that the water runs off, carrying pollutants and nutrients into the waterways, rather than being absorbed.

Bill A-3606 requires the Department of Transportation to identify government-owned stormwater basins in the Barnegat Bay watershed and to include needed repairs and/or replacement. There are approximately 2,500 basins and faculties in the Barnegat Bay watershed, and faulty basins result in pollution washing directly into the Bay.

Governor Christie also announced that NJDEP adopted a "Narrative Nutrient Criteria" for Barnegat Bay and all New Jersey coastal waters. This measure will provide NJDEP with extensive information on what enters the Bay and will assist with future decisions on how to deal with water quality.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: By Lindsay P. Cambron

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Affordable Housing Reform Debate ContinuesFriday, January 14, 2011

Both the State Senate (on a vote of 21 in favor and 16 opposed) and the General Assembly (45-32) have now passed S-1, which would abolish the Council on Affordable Housing (COAH) and transfer its duties to the Department of Community Affairs (DCA). The bill would require municipalities to comply with 25% of their obligation through inclusionary development. It mandates densities of between 6 and 50 units per acre in inclusionary projects (as opposed to COAH’s presumptive densities of between 4 and 8 units per acre). Additionally, the bill provides a developer who decides to do a rental project with an additional density bonus equal to 20% above the mandated higher densities, with only a 15% set-aside for affordable housing. The certification process specified in the bill requires municipalities to pay for a second planner, chosen from a State list, to review and certify a municipal plan. The Bill would eliminate the current 2.5 percent tax on commercial development. Those who opposed the bill did so in part because it would establish quotas for low and moderate-cost housing. Governor Chris Christie is also opposed to quotas and may conditionally veto the bill.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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Affordable Housing Reform May Be on Its WayWednesday, December 15, 2010

The New Jersey Assembly has forwarded to the Senate a vastly overhauled Affordable Housing reform bill. The bill, Assembly, No.3447, uses the marker for what constitutes a low- or moderate-income family, namely, how many children are eligible for free or reduced lunch programs, to determine whether a municipality has to provide more affordable housing, and if so, how much. Towns where less than 20 percent of children qualify for free or reduced cost lunches would have to ensure that 10 percent of their housing is for low- and moderate-income families. Seventy-one municipalities would have no affordable housing obligation because more than half of the children in local public schools come from homes with incomes low enough to qualify for free or reduced-price lunches. Towns in between would have to ensure 8 percent of housing is considered affordable.

The bill eliminates the 2.5 percent fee on commercial development but creates a 1.5 percent fee on total assessed value on any residential development that does not include housing affordable to low- and middle-income households. The Council on Affordable Housing (COAH) would be abolished and any remaining duties of COAH would be transferred to the Department of Community Affairs.

Predictably, there is controversy, although most people agree reform is needed.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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New Article on Site Remediation Professional ProgramMonday, December 13, 2010

Frances B. Stella and Lindsay P. Cambron of Brach Eichler's Environmental & Land Use Practice Group, have authored an article, "New Licensed Site Remediation Professional Program Raises Practical Issues," which appeared in the December 13 issue of the New Jersey Law Journal.

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Home Energy Score Pilot Program BeginsFriday, November 12, 2010

Vice President Joe Biden and Secretary of Energy Steven Chu announced the launch of the Home Energy Score pilot program on November 9, 2010. The Home Energy Score will offer homeowners information regarding their homes' energy efficiency by preparing a report and a home energy score between 1 and 10, comparing their homes' use of energy with others in their region. As part of the voluntary program, certified and trained contractors will walk through a home and utilize an assessment to evaluate a home and provide useful, inexpensive recommendations to homeowners and to prospective purchasers on how to make a home more energy-efficient. The report will also provide homewoners with recommendations to reduce their energy costs. The program is initially being tested with local governments, utilities and non-profits in ten pilot communities across the country. The pilot program should be completed in the spring of 2011, and the Department of Energy hopes to launch the Home Energy Score nationally next year.

If the Home Energy Score is successful, it is something that could be used throughout the country by prospective purchasers in real estate negotiations. As energy efficiency becomes more and more important in this country, sellers may be asked to make energy-efficient upgrades to their homes and the Home Energy Score could prove to be an inexpensive and useful tool in this process.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

Category: Energy

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"Growth Share Metholodogy" Invalidated by Appellate DivisionWednesday, November 03, 2010

"Growth Share" is out, again. The Appellate Division issued its decision on October 8, 2010 invalidating, once again, substantial portions of the Third Round Rules of the New Jersey Council on Affordable Housing (COAH). The court invalidated the "growth share methodology" for determining municipal housing obligations and standards for inclusionary development as such standards fail to provide sufficient incentives to make affordable housing construction a "realistic opportunity." Stating that COAH's revised Third Round Rules "suffer from many of the same deficiencies as the original Third Round Rules," the court has given COAH five months to adopt new rules based on a methodology similar to that which was used under the prior rounds. The opinion addressed 22 different appeals challenging the Third Round Rules that were consolidated. Four of the parties involved in the suit have petitioned the New Jersey Supreme Court for certification to hear the case. The Supreme Court may decide at its discretion whether it will take the case. In the meantime, the New Jersey Legislature has also re-energized its affordable housing reform efforts.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

Category: COAH, Affordable Housing

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Report on October 13, 2010 Meeting of the New Jersey Site Remdiation Advisory GroupWednesday, October 27, 2010

On October 13, 2010, I attended the New Jersey Department of Environmental Protection (“NJDEP”) Site Remediation Advisory Group.  This is my report on highlights from that meeting.

Two significant regulatory changes were embodied in the NJDEP's October 4, 2010 rules proposal.  The first would change mandatory regulatory timeframes from one year to two years (and would change certain regulatory timeframes from 270 days to one year).  The second proposal would change the indoor air vapor screening levels for establishing an immediate environmental concern ("IEC") case from the current levels to match OSHA response action levels ("RALs").  A new class of "vapor concern cases" is being created for sites with test results falling between the old vapor screening levels and the RALs.  The comment period for the rule proposal will end on December 3, 2010 and NJDEP hopes to adopt the revised regulations by March 1, 2011, when the first current mandatory regulatory timeframes are due.  NJDEP will also be issuing an interim compliance advisory as to how affected cases will be handled while the proposed regulations are pending and how the NJDEP will utilize its enforcement discretion during that interim period.

By the end of the year or early next year, NJDEP intends to re-propose its technical regulations and the so-called "ARRCS Rules" which implement the Site Remediation Reform Act ("SRRA").  The ARRCS Rules were originally promulgated without public comment, under special provisions contained in the SRRA, so this will be the first opportunity for the regulated community to comment on those regulations.  The final form of both the technical regulations and the ARRCS Rules would then be promulgated within a year after the proposal.  Bill Hose is the NJDEP Manager of the re-promulgation of the technical regulations.  All technical guidance documents are also being reviewed under a process headed by George Nicholas.

NJDEP continues to promote the advantages of opting in to the LSRP Program, and will soon be adding an opt-in page to its website, discussing the step-by-step process for opting in, as well as the benefits of opting in.

The NJDEP is working on a "stand-alone" rule for underground heating oil tanks, under the so-called "UHOT" Program.  Currently, rules relating to UHOT cases are scattered throughout the NJDEP regulations.

As of September 24, 2010, 411 temporary LSRPs have been approved, 897 new LSRP cases had been submitted, 509 of these are opt-in cases, and 209 remedial action outcomes ("RAOs"), which are the documents concluding LSRP cases, have been issued.  As of that date, only two RAOs had been invalidated, both on the basis that the documents should have been issued as remediation-in-progress waivers rather than RAOs.

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