Real Property & Environmental Law Alert : New Jersey, New York, Pennsylvania & Delaware Lawyers & Attorneys for Real Estate Development & Environmental Law

On December 21, 2011, the United State Environmental Protection Agency (EPA) announced that it had issued the first ever national standards for mercury emissions and other air pollutants from power plants. The regulations were mandated by the 1990 Clean Air Act Amendments. EPA estimates that the new standards will make a major contribution to public health by preventing 11,000 premature deaths and 4,700 heart attacks annually, as well as 130,000 cases of childhood asthma symptoms and about 6,300 cases of acute bronchitis among children each year.

EPA Administrator Lisa P. Jackson stated, "The Mercury and Air Toxics Standards will protect millions of families and children from harmful and costly air pollution and provide the American people with health benefits that far outweigh the costs of compliance." According to EPA, the standards rely on widely available pollution controls that are already in use at more than half of the nation’s coal-fired power plants.

Sources will have three years to achieve compliance, with a fourth year available from state permitting authorities for technology installation. In developing the final rules, EPA consulted with State, local, and tribal officials in and also worked with industry groups, unions and other stakeholders. It reviewed over 900,000 comments. Critics of the regulations assert that they will result in job loss because older coal fired plants may be required to close. EPA counters that society as a whole will benefit because prevention of asthma, heart attacks, bronchitis and other illnesses attributable to air toxics will save $37 billion to $90 billion in health care costs each year by 2016.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.

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The all electric Nissan Leaf is now available in seven new states, bringing the total to 30, including New Jersey, where it is sold. The additional states are Delaware, Indiana, Louisiana, Nevada, Ohio, Pennsylvania and Rhode Island. This is good news for Delaware, Pennsylvania and Rhode Island, which are members of the Transportation and Climate Initiative planning for an Electric Vehicle (EV) Network across the Northeast.

The proposed EV Network is intended to enable EV drivers to be able to use their vehicles easily throughout the Northeast from northern New England to Washington, D.C. In addition, it hopes to attract private investment with consistent standards and regulations across the region. The project will develop a plan and guidance documents for the development of a network of charging stations.

On September 22, 2011, the Transportation and Climate Initiative, which includes New Jersey as a member, was awarded a federal grant of nearly $1 million to start planning the EV Network. According to Commissioner Martin, "Improving air quality in New Jersey is a top priority of the Christie Administration. But in addition to helping us reduce auto emissions and improving the health of our residents, this new network will provide an economic boost to the State through the creation of new green jobs in research and production of electric cars and electric vehicle infrastructure."

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On October 20, 2011, New Jersey Department of Environmental Protection Commissioner Bob Martin announced that New Jersey signed an agreement with other states and the District of Columbia to develop a Northeast Electric Vehicle Network and promote alternative transportation fuels. This announcement comes less than one month after New Jersey, along with the other members of the Transportation and Climate Initiative, received a federal grant of nearly $1 million to start planning a network of charging stations for electric vehicles (EVs). The goal of the Network is to bolster economic growth, maintain the region’s leadership in the clean energy economy and reduce the area’s dependence on oil and its emissions of greenhouse gases and other pollutants.

The Electric Vehicle Network is intended to enable EV drivers to be able to use their vehicles easily throughout the Northeast from northern New England to Washington, D.C. In addition, it hopes to attract private investment with consistent standards and regulations across the region. The project will develop a plan and guidance documents for the development of a network of charging stations. It is anticipated that EVs will reduce emissions from the transportation sector by shifting vehicles from petroleum to cleaner, more efficient electricity produced by renewable resources. In New Jersey, nearly 40% of the state’s greenhouse gas emissions come from the transportation sector.

In announcing New Jersey’s membership in the agreement, Commissioner Martin stated,

The Christie Administration is committed to improving New Jersey's air quality. Diversifying the types of vehicles that people in the Northeast and Mid-Atlantic drive to include more electric, hybrid and alternate-fuel vehicles is a very important part of improving our air quality. The Northeast Electric Vehicle Network will provide the planning needed to develop and spur the construction of infrastructure that will drive market demand for these vehicles. At the same time, this effort will lead to job creation and economic growth.

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Today New Jersey Department of Environmental Protection Commissioner Bob Martin announced that New Jersey, along with the other members of the Transportation and Climate Initiative, have received a federal grant of nearly $1 million to start planning a network of charging stations for electric vehicles. The initiative is expected to spur job creation and the use of electric vehicles (EVs).

The grant was awarded by the U.S. Department of Energy to the Transportation and Climate Initiative which is comprised of 11 states in the Northeast and the District of Columbia. The Initiative was launched in June 2010 with the goal of reducing greenhouse gases in the transportation sector and helping build a clean energy economy. In New Jersey, nearly 40% of the state’s greenhouse gas emissions come from the transportation sector.

The proposed Electric Vehicle Network is intended to enable EV drivers to be able to use their vehicles easily throughout the Northeast from northern New England to Washington, D.C. In addition, it hopes to attract private investment with consistent standards and regulations across the region. The project will develop a plan and guidance documents for the development of a network of charging stations.

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The U.S. Environmental Protection Agency (EPA) on July 7 finalized a new rule aimed at reducing interstate air pollution across the eastern half of the country. The Cross-State Air Pollution Rule (CSAPR) requires reductions in power plant emissions in 27 states that cause or contribute to ozone and/or fine particulate pollution in other states.

The development of the CSAPR required EPA to analyze a bewildering array of linkages between sources and downwind states in which the same state could be both a source and a receptor. New Jersey, for example, is affected by particulate emissions from Pennsylvania, but also contributes to ozone levels in Connecticut. The new rule replaces the 2005 Clean Air Interstate Rule, which was the subject of a 2008 court decision that left the old rule in place but, because of its many flaws, required EPA to replace it with a new rule implementing the Clean Air Act’s requirements regarding interstate air pollution.

The CSAPR will require reductions in sulfur dioxide emissions as early as January 1, 2012 and nitrogen oxide emissions by May 1, 2012. By 2014, it is anticipated that sulfur dioxide emissions will be reduced by 74% and nitrogen oxide emissions by 54% from 2005 levels in the affected region. According to EPA, the CSAPR will prevent over 13,000 premature deaths each year, at a cost that will be dwarfed by the benefits of the rule.

Paul M. Hauge is an Associate in the Gibbons Real Property & Environmental Department.

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On Friday, June 24, 2011, David A. Brooks, Counsel to the Gibbons Real Property and Environmental Department, will moderate a panel, “Vapor Intrusion: Old Problems - New Rules” at the 2011 Environmental Law Section Forum Weekend presented by the New Jersey State Bar Association and the New Jersey Institute for Continuing Legal Education and co-sponsored by the New Jersey Corporate Counsel Association. This full weekend program presents an annual update on environmental law in New Jersey and will also include panels discussing funding for remediation projects, New Jersey’s licensed site remediation professional program, litigation related to the remediation of urban river systems, the role of non-governmental organizations, renewable energy and climate change, and ethical issues.

The conference will be held at the Golden Inn in Avalon, New Jersey from June 24, 2011 through June 26, 2011. Please click here to register.

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Last month, the Environmental Protection Agency published a notice  for “Public Comment on the Development of Final Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway From Contaminated Groundwater and Soils (Subsurface Vapor Intrusion Guidance)” in the Federal Register. The draft of the Subsurface Vapor Intrusion Guidance was initially released for comment during 2002 and the EPA is planning on issuing final guidance by November 20, 2012.

More recently, the EPA published a Review of the Draft 2002 Subsurface Vapor Intrusion Guidance which summarized portions of the 2002 guidance requiring update. In general, the EPA noted the observed complexity and variables impacting the migration of volatile organic compounds since issuance of the initial 2002 guidance.

Comments must be submitted to the EPA by May 14, 2011. However, the EPA anticipates making another draft of the guidance available for public comment during the Spring of 2012.

David A. Brooks is Counsel to the Gibbons Real Property & Environmental Department.

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On July 6, 2010, the USEPA proposed a new interstate transport of ozone and fine particulate rule for power plants. The goal of the rule is to achieve by 2014 a 72% reduction of sulfur dioxide (SO₂) and a 54% reduction of oxides of nitrogen (NOx) from 2005 levels.

The tri state area, like most of the states east of the Mississippi, is covered by this rule for both fine particulates and ozone. The sulfur and nitrogen oxides are fine particulates in the air.

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In less than a month, the New Jersey legislature introduced and passed S-2036, the “Offshore Wind Economic Development Act." Both the NJ Senate and the Assembly passed the Senate version on June 28, 2010. This swift action quickly followed NJ’s joining a 10-state Atlantic OffShore Wind Consortium.

The bill establishes an offshore wind renewable energy certificate program that will require a percentage of electricity sold in NJ to be from offshore wind energy. The New Jersey Board of Public Utilities will be authorized to accept and approve applications for qualified offshore wind projects. The New Jersey Economic Development Authority will have the authority to provide financial assistance to qualified offshore wind projects and associated equipment manufacturers and assembly facilities in the state.

Concerns about potential environmental impacts have been soothed by the conclusions of a two year study led by New Jersey Department of Environmental Protection and announced in draft form on June 18, 2010. The study surveyed bird species, marine mammals, sea turtles and fish off the NJ coast and assessed the likely impact from the construction, operation and decommissioning of an offshore wind farm. The final report will provide the necessary data to screen sites, estimate potential impacts on sea animals and mitigation. NJDEP Commissioner Martin noted, “We now have the science and data needed to take the first steps towards making wind energy projects a reality for New Jersey. It puts us in the forefront environmentally, while also providing New Jersey with a great economic boost from jobs that will be created by this new green industry.” The final report is expected to be released in July.

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The United States officially notified the UN that it will abide by the emission reduction goal of the Copenhagen Accords. U.S. climate envoy Todd Stern submitted America's target to the U.N. Framework Convention on climate change as part of a January 31 deadline negotiated in Copenhagen last year. Thus the U.S. promised that it will reduce global warming pollution about 17% below 2005 levels in the next decade. In doing so, Stern made a point of noting that the final figure could change depending on the outcome of U.S. legislation.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.

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Since late June, when the House narrowly passed the American Clean Energy and Security Act of 2009, the loud and rancorous debate over health care may have obscured another critical issue being considered by Congress: climate change and the regulation of greenhouse gas emissions. Decisions made public on successive days in September by a federal appellate court and the U.S. Environmental Protection Agency (EPA), however, may go a long way toward making wide-ranging federal controls over greenhouse gas emissions a reality.

The complete article, as published in In-Sites, can be viewed here.

Paul M. Hauge is an Associate in the Gibbons Real Property & Environmental Department.

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On September 30, just days after finalizing its new rule on mandatory reporting of greenhouse gas (GHG) emissions, EPA announced that it is proposing to use existing Clean Air Act provisions to limits such emissions from the largest sources of such emissions. The proposed rule, which focuses on sources that emit more than 25,000 tons of GHGs per year, would subject hundreds of new sources and modifications to existing sources to EPA review each year. In total, according to EPA, some 14,000 large sources would come under the proposed rule, which requires them to obtain operating permits that include limits on GHG emissions.

Administrator Lisa P. Jackson, Remarks to the 2nd Annual Governors’ Global Climate Summit.

Paul M. Hauge is an Associate in the Gibbons Real Property & Environmental Department.

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