BrachEichler LLC Blogs Feed Jul 2018firmwise Murphy Signs Clean Energy Legislation May 2018Blogs<p>On Wednesday, Governor Phil Murphy signed bills related to the environmental and energy pledges he made during his campaign. The Governor signed A-3723, a Renewable Energy Bill, which provides new renewable energy standards, implementation of energy efficiency measures along with reforms related to the State&rsquo;s solar programs and reinvigorating programs related to major offshore wind development. The Governor also signed into law S-2313 establishing a Zero Emissions Certificate program in order to maintain New Jersey&rsquo;s nuclear power supply. In addition, the Governor signed an executive order to update New Jersey&rsquo;s Master Energy Plan to provide for 100% clean energy by 2050. The Master Energy Plan is directed to be completed by June 1, 2019 and will incorporate the provisions of the new legislation.</p> Revises Regulated Medical Waste Storage and Disposal Regulations Apr 2018Blogs<p>The New York Department of Environmental Conservation (&ldquo;DEC&rdquo;) issued an enforcement discretion letter related to storage time limitation requirements for regulated medical waste containers, revising 6 NYCRR 365-1.2(b)(7) and 6 NYCRR 365-1.2(b)(8). Based upon concerns of small generators of regulated medical waste (&ldquo;RMW&rdquo;) such as dental offices, the DEC will revise provisions related to the removal of RMW and sharps from patient care or use areas to a room or area designated for RMW storage. The DEC will now require that RMW and sharps be removed when the container has reached the fill line indicated on the container, is otherwise filled, or the container generates odors or other evidence of putrefaction, whichever comes first. This allows small generators additional time as the regulations now provide specific hour and day requirements for the removal of these items.</p> New Jersey Equal Pay Law Has Plaintiff's Lawyers Licking Their Chops Mar 2018Blogs<p>Recently, both Houses of New Jersey&rsquo;s legislature overwhelmingly passed the &ldquo;Diane P. Allen Equal Pay Act&rdquo; which is now destined for the Governor&rsquo;s signature. This sweeping new equal pay legislation amends the New Jersey Law Against Discrimination (&ldquo;NJLAD&rdquo;), and makes it unlawful &ldquo;[f]or an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.&rdquo; It applies to all of New Jersey&rsquo;s already protected classes. While there are exceptions for bona fide differences in education and experience, this law will substantially increase the burden on your businesses to make sure these disparities either don&rsquo;t exist, or if they do &ndash; that they are defensible. While the NJLAD already provided for compensatory and punitive damages for employees who are the victims of unlawful employment practices, this amendment allows for treble damages. While this bill is not yet law, we will be watching this legislation closely.</p> Decision Likely to Have Impact On All NJ Municipalities Mar 2018Blogs<p>On Thursday, March 8, 2018 a judge in Mercer County, New Jersey ordered Princeton Township and West Windsor Township to plan for more low- and middle-income housing within their boundaries than they had argued they needed to provide for. This ruling has been long anticipated by experts and officials on all sides of the affordable housing issue. In her decision, Superior Court Judge Mary Jacobson favored the methodology endorsed by housing advocates when she concluded that the state should add 155,000 affordable housing units by 2025. While this number is less than housing advocates had sought, it is more than the towns wanted.</p> <p>While her decision applies to only the two Mercer County towns, other municipalities have been awaiting the ruling as they struggle with how much affordable housing they must provide under the New Jersey Supreme Court&rsquo;s longstanding Mount Laurel cases and where it can and should be built. Kevin Walsh, Esq., with the housing advocate group Fair Share Housing Center that has been driving the litigations, said his group has reached settlements with approximately 190 municipalities on the number of housing units and where they will be built, leaving approximately 140 more to go. This latest ruling may now encourage additional settlements.</p> Officers Held Individually Liable for Violation of Environmental Regulation Mar 2018Blogs<p>The Texas Supreme Court ruled that a corporate officer can be held liable for violating an environmental regulation if the regulation applies to a &ldquo;person&rdquo; and if he or she personally participated in the conduct. The defendant, the only member of the LLC that owned the property, failed to maintain and monitor a groundwater remediation system and violated the compliance plan associated with the property. Should this decision be adopted by other jurisdictions, it could have an effect on real estate transactions regarding contaminated property, as well as an effect on corporations and their officers. This decision, while in Texas state court, could signal an expansion of other state and Federal agencies that seek to hold corporate officers or members of an LLC personally liable for failure to comply with environmental regulations and compliance provisions.</p> Division Upholds the ExxonMobil Natural Resource Damage Settlement Feb 2018Blogs<p>The New Jersey Appellate Division rejected an appeal from Environmental Groups and a former State Legislator of the New Jersey Department of Environmental Protection&rsquo;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.</p> Acquits Menendez On Some Charges; Prosecution Drops the Others Feb 2018Blogs<p>The prosecution of U.S. Senator Bob Menendez and Dr. Salomon Melgen, which ended in a deadlocked jury last November, was resolved by Judge William H. Walls, who granted a defense motion for acquittal of seven of the eighteen counts of the indictment on January 24, 2018. Those seven counts involved political contributions of $660,000 made by Melgen to benefit Sen. Menendez, in return for Sen. Menendez helping Melgen with Melgen&rsquo;s investments in the Dominican Republic and a Medicare dispute, according to the government. Judge Walls found no quid-pro-quo bribery, and acquitted defendants of those charges. Unfortunately for the government, bribery in the form of money is the most common form of corruption, and the most familiar to the public, including potential jurors. The only remaining counts for the trial would essentially have been non-monetary gifts such as flights and hotel stays, which may appear less as bribes and more as gifts and courtesies between friends. Moreover, the value of those &ldquo;gifts&rdquo; was a small fraction of the monetary payments. Accordingly, on January 31, the prosecution decided to drop the case altogether, despite announcing on January 19 that it would retry both Sen. Menendez and Melgen. <br /> <br /> The prosecution of Menendez is illustrative of most white collar crimes, which involve a significant paper trail, including documentation, billing, and correspondence. These cases turn on circumstantial evidence and inferences. Unlike non-financial cases that may involve fingerprints, eyewitnesses or DNA, the direct evidence is generally not in dispute. The prosecution and the defense are cooking with the same ingredients, and each is trying to make something that smells different to the jury. However, when Judge Wall removed $660,000 as a potential ingredient, there was little chance the prosecution could create a recipe that smelled like a crime.</p> Announces Adoption of New Ground Water Remediation Standards Jan 2018Blogs<p>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&rsquo;s interim standards for PFNA.</p> New Jersey Appellate Division Invalidates NJDEP’s ISGWQC for PFNA Dec 2017Blogs<p>In 2014, the New Jersey Department of Environmental Protection (&ldquo;NJDEP&rdquo;) determined that perfluorononanoic acid (&ldquo;PFNA&rdquo;) was a &ldquo;toxic&rdquo; substance and posted Interim Specific Ground Water Quality Criteria (&ldquo;ISGWQC&rdquo;) 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.&nbsp; The NJDEP cited <u>N.J.A.C.</u> 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.&nbsp; On March 14, 2017, NJDEP posted the ISGWQS on its website.&nbsp; This was the first guideline or groundwater criteria related to PFNA that the NJDEP had issued.</p> <p>In response to NJDEP&rsquo;s attempted rule-making, the plaintiffs, Chemistry Council of New Jersey, Solvay Specialty Polymers USA, LLC, and Arkema, Inc., challenged the NJDEP&rsquo;s reliance on <u>N.J.A.C.</u> 7:9C-1.7(c), arguing that the NJDEP violated the Administrative Procedure Act (&ldquo;APA&rdquo;).&nbsp; The plaintiffs also argued that the ISGWQC was not supported by credible scientific evidence, thus the ISGWQC was &ldquo;arbitrary, capricious, and unreasonable,&rdquo; but the Appellate Division did not make a decision on that claim.</p> <p>In its decision, the Appellate Division decided that pursuant to the APA, an administrative agency must &ldquo;proceed in accordance with traditional rule-making requirements for a rule proposal, including provisions of notice and an opportunity to comment.&rdquo;&nbsp; The Appellate Division highlighted that the ISGWQC adopted by NJDEP was identified as an &ldquo;interim criteria&rdquo; and was posted on the NJDEP&rsquo;s website on March 14, 2014, yet the measures remain in effect today.&nbsp; Thus, the question for the Court was whether this is a valid exercise of authority or agency action in violation of the APA.&nbsp; The Appellate Division, citing <u>Metromedia, Inc. v. Div. of Taxation</u>, found that the ISGWQC has all of the &ldquo;earmarks of rule-making&rdquo; as&nbsp; it is a new standard for water quality, intended to apply universally, uniformly, and prospectively to the regulated community.&nbsp; 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.&nbsp; <u>N.J.A.C.</u> 7:9C-1.7(c)(2)(ii) limits the NJDEP&rsquo;s authority and requires that any &ldquo;specific criteria&rdquo; shall be replaced as soon as reasonably possible by a rule.&nbsp; The Court found that the interim criteria have become a <i>de facto</i> permanent regulatory scheme without complying with the APA, thus they are invalid.</p> <p>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.</p> Qualified Plan Limits Nov 2017Blogs<p>Qualified retirement plans, such as Internal Revenue Code sections 401(k) and 403(b) plans, pension and profit sharing plans, individual retirement accounts (IRAs), and health flexible spending accounts (Health FSAs) are subject to various dollar limits on the amount of contributions that can be made or benefits that may accrue under such arrangements. Most of these dollar limits are adjusted annually by the IRS for changes in the &ldquo;cost of living.&rdquo;<br /> <br /> For 2018, some of the key dollar limits affecting the above plans, IRAs and Health FSAs are as follows:<br /> &nbsp;</p> <table border="1" cellspacing="0" cellpadding="0" width="80%" align="center" style="margin: 0 auto"> <tbody> <tr> <td width="319" valign="top"> <p align="center"><b><u>Plan/IRA Benefit</u></b></p> </td> <td width="319" valign="top"> <p align="center"><b><u>2018 Dollar Limit</u></b></p> </td> </tr> <tr> <td width="319" valign="top">1.&nbsp;&nbsp; Elective Deferral Contributions (for 401(k) and 403(b) Plans)</td> <td width="319" valign="top">$18,500 ($500 increase from 2017)</td> </tr> <tr> <td width="319" valign="top">2.&nbsp;&nbsp; Annual Contribution Limit (for defined contribution plans)</td> <td width="319" valign="top">$55,000 ($1,000 increase from 2017)</td> </tr> <tr> <td width="319" valign="top">3.&nbsp;&nbsp; Annual Benefit Limit (for defined benefit plans)</td> <td width="319" valign="top">$220,000 ($5,000 increase from 2017)</td> </tr> <tr> <td width="319" valign="top">4.&nbsp;&nbsp; Annual Compensation Limit (for all qualified retirement plans)</td> <td width="319" valign="top">$275,000 ($5,000 increase from 2017)</td> </tr> <tr> <td width="319" valign="top">5.&nbsp;&nbsp; Catch-Up Deferral Contributions (for plan participants age 50 or older under 401(k) and 403(b) plans)</td> <td width="319" valign="top">$6,000 (no change from 2017)</td> </tr> <tr> <td width="319" valign="top">6.&nbsp;&nbsp; Highly Compensated Employee definition-compensation threshold (for nondiscrimination testing under all qualified plans, especially 401(k) and 403(b) plans)</td> <td width="319" valign="top">$120,000 (no change from 2017)</td> </tr> <tr> <td width="319" valign="top">7.&nbsp;&nbsp; Traditional IRA Contribution Limit (IRA contribution deduction amount subject to income based phase-out)</td> <td width="319" valign="top">$5,500 (no change from 2017)</td> </tr> <tr> <td width="319" valign="top">8.&nbsp;&nbsp; Catch-Up Traditional IRA Contribution (for individuals age 50 or older)</td> <td width="319" valign="top">$1,000 (no change from 2017)</td> </tr> <tr> <td width="319" valign="top">9.&nbsp;&nbsp; Health FSA Contributions (via employee salary deferrals)</td> <td width="319" valign="top">$2,650 ($50 increase from 2017)</td> </tr> </tbody> </table> <p><br /> While the above benefit and contribution limits should be, as applicable, reflected in the plan documents for such plans and accounts, and in the operation of such arrangements, it is important to remember that the elective deferral and, as applicable, related catch-up contribution limits apply on an individual basis.&nbsp; Thus, if you change jobs during calendar year 2018 and participate in two or more employer-provided 401(k) and/or 403(b) plans, you are entitled to a maximum aggregate elective deferral and catch-up contribution limit under all such plans for 2018 of $18,500 in elective deferrals and $6,000 in catch-up contributions (i.e., one set of elective deferral and catch-up contribution limits apply per individual per calendar year).</p>