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NYSDEC Announces Final Cleanup Plan for Harbor at Hastings Hudson River Site
May 18, 2012
Frances B. Stella
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.
Beginning May 7th LSRPs Cannot Issue RAOs for UHOTs
May 7, 2012
Lindsay P. Cambron
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.
Hess Corp. Agrees to Settlement with EPA for Clean Air Act Violations
April 27, 2012
Frances B. Stella
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.
NJDEP Fails to Establish Its Burden of Proof and Appellate Division Upholds Denial of Natural Resource Damages
April 9, 2012
Lindsay P. Cambron
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.
EPA Adds New York Site to Superfund National Priorities List and Proposes to Add New Jersey Site
April 5, 2012
Lindsay P. Cambron
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.
DEP Adopts "Waiver of Department Rule"
March 30, 2012
Susan R. Rubright
In response to Governor Christie's Executive Order No. 2 directing state agencies to implement "common sense principals" of government reform, the Department of Environmental Protection (DEP) has adopted a "Waiver of Department Rule," to be effective on August 1, 2012. This will give the DEP flexibility in modifying compliance with the various and often conflicting rules. Applications and actions on the waiver requests will be posted on the DEP's website. To apply for a waiver, a requester must demonstrate that at least one of the following four criteria is met: (1.) public emergency; (2.) conflicting rules are adversely impacting a project or activity from proceedings; (3.) a net environmental benefit would be achieved through grant of the waiver; or (4.) undue hardship is being imposed by the rule requirements. Grant of the waiver is not automatic.
Information about the waiver rule, including Governor Christie's EO 2 and the adopted rule text, is available at www.nj.gov/dep/waiverrule
U.S. Supreme Court Allows Judicial Review of EPA's CWA Order in Sackett, et. al. v. EPA
March 29, 2012
Lindsay P. Cambron
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.
NJDEP Announces First LSRP Examination
March 26, 2012
Lindsay P. Cambron
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
ASTM Issues New Guidance to Comply with CERCLA Continuing Obligations
March 8, 2012
Lindsay P. Cambron
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.
Temporary License Site Remediation Professional Application Deadline is April 1, 2012
February 24, 2012
Lindsay P. Cambron
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.
NJDEP Clarifies Status of ACOs and RAs
February 21, 2012
Lindsay P. Cambron
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.
NJDEP Releases Long-Awaited Vapor Intrusion Technical Guidance
January 23, 2012
Lindsay P. Cambron
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:
NJDEP Announces Expansion of E-Permitting for Land Use
January 13, 2012
Lindsay P. Cambron
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.
Happy New Year...There are 125 Days Left to Ort-In to the New Jersey LSRP Program for Site Remediation
January 3, 2012
Frances B. Stella
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.
Mayor Bloomberg Continues to Take Aggressive Steps to Protect and Improve the City's Environment
December 29, 2011
Lindsay P. Cambron
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.
Final New Jersey Energy Master Plan Released
December 15, 2011
Lindsay P. Cambron
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.
U.S. Supreme Court to hear Two Environmental Cases in 2011-2012 Term
In PPL Montana, LLC v. State of Montana
September 28, 2011
Lindsay P. Cambron
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.
New Chemical Data Reporting Begins February 2012
September 22, 2011
Frances B. Stella
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.
NJDEP Releases Final Proposed Rules to Implement SRRA
August 17, 2011
Frances B. Stella
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.
Appellate Division Upholds NJDEP Regulations Regarding Oversight Cost Review Process
July 18, 2011
Lindsay P. Kern
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.
NJDEP Will End Informal Requests for Extensions of Regulatory Timeframes
May 10, 2011
Lindsay P. Kern



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.

EPA and Army Corps Issue Draft Guidance on Clean Water Act
May 2, 2011
Lindsay P. Kern
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.
DEP Site Remediation Advisory Group Meeting
April 14, 2011
William J. Friedman
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:
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466 receptor evaluations were submitted to DEP in March, and 771 have been submitted year to date.
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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.
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358 Remedial Action Outcomes ("RAOs") have been issued by LSRPs to date, with DEP inspections and reviews completed. Only one RAO has been invalidated.
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312 LSRP cases have been closed (some RAOs were for individual areas of concern, and did not close cases).
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There are currently 455 temporary LSRPs.
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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.
April 14, 2011
Frances Stella
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.
April 7, 2011
Frances Stella
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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