: NJDEP : Real Property & Environmental Law Alert

Posted on May 6, 2013 by Paul M. Hauge

May I Come In?: N.J. Supreme Court Approves Warrantless DEP Searches of Residential Property Subject to Freshwater Wetlands Permit

In a unanimous decision that was at once sweeping and limited, the New Jersey Supreme Court held that the Department of Environmental Protection (DEP) need not obtain a warrant before entering a residential parcel to ensure compliance with the terms of a wetlands permit. The Court stopped short of a blanket validation of all warrantless searches under the wetlands statute, or of all warrantless searches of residential property subject to any sort of permit, instead grounding its holding in the protections afforded by the process that DEP must follow, and limiting it to searches of properties that are subject to a wetlands permit.

The case concerned the property of Robert and Michelle Huber. The parcel was subject to a permit issued to the developer of the property in 1992 under the Freshwater Wetlands Protection Act (FWPA). A deed restriction referring to the permit was recorded when the developer sold the property in 1994. The property was sold once again, in 1997, before the Hubers acquired it in 1999. Their title report also referred to the permit.

In 2002, after complaints from a neighbor about the placement of fill and the mowing of vegetation in restricted portions of the Hubers’ land, DEP sent an inspector to the property. The parties disputed whether he received permission to enter the property, but he did in fact enter and collected evidence of violations. Subsequent inspections, aerial photographs, and the Hubers’ own admissions eventually established clear evidence of permit violations. DEP assessed a civil penalty and ordered the Hubers to submit a restoration plan. An administrative law judge, the DEP Commissioner, and the Appellate Division all upheld the DEP order.

Before the Appellate Division, the Hubers argued, for the first time, that the evidence from the first DEP inspection should have been excluded because the inspector lacked a warrant, as required by the federal and state constitutions. The Appellate Division rejected that argument, holding that the reasoning of the U.S. Supreme Court’s 1987 decision in New York v. Burger, which permitted warrantless administrative searches of commercial property in closely regulated industries, should be extended to residential properties like the Hubers’ parcel.

The New Jersey Supreme Court at first denied certification, but then the case took an unusual turn. After the denial of certification, the Hubers filed a petition for certiorari with the U.S. Supreme Court. The denial of the petition was accompanied by a statement from Justice Alito (joined by Chief Justice Roberts and Justices Scalia and Thomas) that questioned whether Burger could be applied to residential property. Seizing on this statement, the Hubers sought reconsideration, and the New Jersey Supreme Court granted certification.

Answering Justice Alito’s question, the Court first rejected the Appellate Division’s extension of Burger outside of the setting of a commercial property in a closely regulated industry. The Court contrasted the “heightened privacy interests that are associated with a private, residential property” with the lesser privacy interests in a commercial setting, especially one where highly regulated activity occurs.

“The FWPA’s inspection scheme cannot fairly be viewed as unreasonable as applied to a residential homeowner whose property is subject to a FWPA permit because, by seeking its permission to disturb land on or near otherwise statutorily protected wetlands, a landowner and his or her successors in title are bound to compliance with the permit. That includes compliance with the permitting scheme’s mechanism that authorizes reasonable entry onto land affected by the permit to ensure that these valuable natural resources are maintained as required by the conditions of the permit.”

A separate line of cases, however, provided a rationale for upholding DEP’s warrantless search of the Hubers’ property. In cases decided in 1970 and in 1978, the U.S. Supreme Court had “signaled,” without so holding, “that a legislative determination to establish standards for reasonableness for searches and seizures can receive favored treatment where that process does not include ‘forcible entries without a warrant.’” Analyzing the details of the wetlands statute and DEP’s implementing regulations, the Court found that the process that DEP is required to follow in seeking to enter the property of a permit holder-- from the inspector’s presentation of credentials, to issuance of an order if access is refused despite the permittee’s statutory duty to allow entry, to a judicial action to enforce such an order -- satisfied the criteria suggested by the U.S. Supreme Court. The process avoids a forcible, nonconsensual entry into a residential property. More generally, said the Court, the inspection scheme is reasonable when applied to a homeowner whose property is subject to a permit because, by seeking permission to disturb lands protected by the statute, the homeowner (as well as his or her successors in title) are bound to compliance with terms of the permit, including the requirement to allow reasonable entry.

The question, then, is not so much whether DEP can gain entry -- the statute virtually guarantees it -- but how DEP can gain access if the permit holder refuses. The Court concluded that the process established by the statute and regulations was sufficiently protective of the homeowner’s expectation of privacy. That expectation is reduced where, as in the Hubers’ case, the homeowner acquires the property subject to a recorded deed restriction that explicitly referred to a permit that, in turn, gave DEP the right to access. “Put simply,” the Court concluded, “the rights of the FWPA permittee are subject to the statutory scheme by which the permit operates, and that includes submitting to a reasonable inspection scheme.”

The Court was careful, however, to limit its holding to situations involving FWPA permits: “We do not mean to suggest that any permit issued by any governmental entity may now bear a condition foisting upon the homeowner a duty to accept a right of suspicionless entry by the government.” Nor does the holding apply to FWPA inspections of property that is not subject to a permit, as the Court made clear that “we need not decide what showing is required under the FWPA for the DEP to gain access to residential property that is not subject to a FWPA permit, and we leave for another day the application of such circumstances in the context of open fields or when entry is sought in other nonresidential settings.”

“Here, the regulatory scheme anticipates thoughtful steps and provides constitutional recourse for the DEP to secure access to inspect land subject to a FWPA permit for compliance with the strict protections placed on freshwater wetlands and transition areas. Moreover, the permitting scheme ensures that an order issued to gain peaceful, nonforcible entry to inspect at a reasonable time when consensual entry is denied and access must be compelled.”

In one final twist, the Court then held that its holding on the weighty constitutional question of warrantless administrative searches was not even necessary to its disposition of the case. Reluctant to decide the disputed question of whether the Hubers granted permission for that inspection -- for if it found that permission had been denied, the logic of its opinion would require that it order DEP to go back and follow its prescribed procedures -- the Court held that even without any of the evidence from the initial inspection, there was more than enough evidence to sustain DEP’s finding of a violation.

Huber sends clear messages to both property owners (having a permit can make you subject to warrantless inspections) and regulators (you must build procedural safeguards into your inspection regime). The message of Huber, however, may be subject to future modification inasmuch as its holding is grounded in signals, rather than holdings, from the U.S. Supreme Court. In any event, its reasoning and its scope are likely to be tested in future cases involving other permitting programs.

* Photo courtesy of epa.gov.

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

Tags: Environmental & Green Issues, Inspections, NJDEP, New Jersey, Searches, Wetlands

Posted on April 24, 2013 by Adam C. Arnold

More Streamlining of Permit Procedures for Rebuilding After Superstorm Sandy

A recent news release on the NJDEP website discusses new efforts by the Christie Administration to streamline vital rebuilding projects necessitated by the destruction caused by Superstorm Sandy. The new rules, which were adopted on an emergency basis on April 16th, are intended to eliminate some of the red tape typically associated with permit procedures, while ensuring the protection of coastal resources and encouraging the rebuilding of a more resilient New Jersey coastline. This is just the latest action taken by the Governor and NJDEP to ease the burden on residents, businesses and municipalities seeking to rebuild. Beginning as early as five days after the storm swept through New Jersey, actions were already being taken to waive permitting requirements for those rebuilding vital infrastructure such as roads and bridges. More recently, the Christie Administration adopted a streamlined process for property owners wanting to rebuild to new elevation standards in flood zones.

Bob Martin, Commissioner of the NJDEP, justified these emergency actions, stating that the “Christie Administration is committed to taking every step possible to help our communities become stronger than ever from this historic storm, including eliminating unnecessary red tape that would needlessly impede the important work ahead. These common sense changes will make it easier for our residents and businesses to continue on the road to recovery while ensuring continued protection of natural resources.” Many activities that require individual permits will now be allowed under general permits or permits by rule. An example of these changes is the use of permits by rule for the maintenance of beaches and dunes in advance of the 2013 hurricane season. A general permit will replace individual permits for projects that create living shorelines with vegetation, sand, organic materials and/or bivalves such as oysters and clams. Countless other measures are similarly aimed at reducing both the time and money that formerly would have been spent on more complex permit requirements.

While these rules are being implemented on an emergency basis for 60 days, there is a concurrent proposal for a permanent rule change, which will be open for public comment for a period of 30-days. Comments can be submitted online until June 5th. A public hearing on the final rule will be held on May 22nd at the Long Branch Municipal Building in Long Branch, New Jersey. Following the 30-day comment period, the NJDEP will respond to any public comments before adopting the permanent rule, which it hopes to do at the expiration of the emergency rule.

Adam C. Arnold is an Associate in the Gibbons Real Property & Environmental Department.

Tags: DEP, Environmental & Green Issues, Hurricane Sandy, NJDEP, New Jersey, Regulations, Tidelands

Posted on April 5, 2013 by Adam C. Arnold

Raising Standards for Rebuilding After Sandy

For the first time in more than two decades, the Federal Emergency Management Agency (“FEMA”) has updated its Advisory Base Flood Elevation (“ABFE”) maps for New Jersey’s coastal counties. The Christie Administration adopted these new standards as an emergency measure on January 24, 2013, and through formal NJDEP regulations, has now made them permanent. The revised FEMA elevations, which remain subject to change, are anywhere from two to four feet higher on average than the standards that had been in effect prior to Hurricane Sandy. New Jersey residents, particularly those impacted by flooding from Hurricane Sandy, should be aware of this change, as the NJDEP has incorporated these revised maps as the new standard throughout the state for the elevation of reconstructed homes in flood zones.

The Commissioner of the NJDEP, Bob Martin, defended the new standards as more protective of flood-prone properties, and as helping affected residents avoid a dramatic increase in flood insurance premiums once FEMA formally adopts new guidance for flood insurance. One obvious question is how some residents, still struggling to recover financially from the devastation caused by Sandy, are meant to afford such a significant undertaking as elevating their homes. According to a news release on NJDEP’s website, the Christie Administration is looking to help such residents offset this cost by providing funds from the federal Community Development Block Grant. Eligible homeowners could receive up to $150,000 for reconstruction and elevation of their flood-damaged homes, according to the article.

Depending on the amount of damage incurred at a given residence, the elevation revisions may not have immediate consequences. Homes that sustained less than 50% damage are not required to do anything, but are cautioned that they will likely be subject to much higher flood insurance costs if they choose not to elevate in accordance with new standards. If, on the other hand, a residence sustained more than 50% damage, the owner must elevate to the new standard plus one foot, as required by the Flood Hazard Area Control Act. Under the amended rules, property owners rebuilding to the new standards will not need to apply for a special NJDEP Flood Hazard Area permit, which should result in savings on permit fees and design costs, as well as saving the time that it would normally take for NJDEP review.

Without a doubt, many residents will view these revised elevation requirements as just the latest in a long line of headaches caused by Hurricane Sandy. The state, however, views these measures as essential to the recovery and future safety of its residents and their homes. As Commissioner Martin commented, “we must never allow ourselves to forget the scope of destruction from Sandy. It is absolutely critical that we rebuild stronger and more resilient in the aftermath of this historic storm.” Perhaps that is easier said than done for many residents, but just like the next storm, these new standards are coming whether New Jersey homeowners are ready or not.

*Photo courtesy of FEMA Region II Coastal Mapping Basics.

Adam C. Arnold is an Associate in the Gibbons Real Property & Environmental Department.

Tags: DEP, Environmental & Green Issues, Hurricane Sandy, Insurance, NJDEP, New Jersey, Regulations

Posted on March 27, 2013 by Paul M. Hauge

Appellate Court Upholds NJDEP "Waiver Rule"

In a decision that gives the green light to an important component of the Christie Administration’s “Common Sense Principles” approach to regulation, the Appellate Division has upheld the New Jersey Department of Environmental Protection’s (NJDEP) “waiver rule,” which permits the department to waive strict compliance with many of its regulations in defined circumstances. Full implementation of the rule will have to wait, however, as the Appellate Court invalidated a variety of forms and guidance documents that NJDEP had posted on its website without going through the normal rulemaking process required by the Administrative Procedure Act (APA).

As we reported last year, NJDEP formally promulgated the waiver rule in April 2012, after a contentious, year-long rulemaking process that saw over 500 members of the public submit many hundreds of comments. The proposal grew out of an executive order from Governor Christie that directed all agencies to establish “Common Sense Principles” for regulations and to apply those principles in a variety of ways, including the adoption of rules that provided for waivers of conflicting or unduly burdensome rules.

The rule, which is set forth on NJDEP’s website, allows NJDEP to waive strict compliance with its rules in limited circumstances, in a manner that is consistent with the agency’s environmental mission. But there are significant limitations on that authority. A waiver may be granted only when at least one of the following criteria are satisfied: (1) the applicant is subject to conflicting rules, (2) strict compliance would be unduly burdensome, (3) the waiver would result in a net environmental benefit, or (4) the waiver is justified by a public emergency. The waiver rule does not apply to a number of categories of requirements, including requirements imposed by statute or by federal regulations; numeric or narrative standards that protect human health; and requirements concerning remediation funding sources and other financial matters.

Soon after its promulgation, and as we also reported, a coalition of environmental and labor organizations challenged the waiver rule in court. They argued that the rule was ultra vires - beyond the authority granted NJDEP by the Legislature - and that it lacked sufficiently clear standards to guide NJDEP in applying it to particular circumstances. The appellants also pointed to the Legislature’s inclusion of waiver provisions in a number of specific statutes as evidence that it did not give NJDEP any authority to grant waivers in any other situations.

In a decision released on March 21 and captioned In re N.J.A.C. 7:1B-1.1 et seq., the Appellate Division rejected these arguments, and upheld the waiver rule as a valid exercise of authority granted by the Legislature. Writing for the three-judge panel, Judge Parrillo pointed to the broad authority the Legislature has given NJDEP, and to NJDEP’s frequent practice of adopting wide-ranging regulatory programs that apply to several different programs and are based on a number of different statutes. The absence of an explicit legislative grant to NJDEP of a “general” power to waive its regulations was not dispositive, wrote Judge Parrillo, for such a power is implicit in the delegation of broad authority to make rules.

“Simply stated,” he concluded on this point, “the power to promulgate a regulation implies the incidental authority to suspend or waive its application in certain limited, well-defined circumstances provided such exemption does not circumvent any legislative enactment or purpose, or federal law, is consistent with the agency’s statutory core mission and objectives, is accomplished through a properly adopted regulation pursuant to the APA, and establishes appropriate and clear standards for the exercise of agency discretion.”

The Court also rejected the appellants’ contention that the rule lacked adequate standards to guide NJDEP’s exercise of its discretion. It is enough, said the Court, if regulations are “sufficiently definite to inform those subject to them as to what is required.” The standards in the waiver rule were definite enough to satisfy this flexible standard.

It was not, however, a complete victory for NJDEP. The Appellate Division held that NJDEP had acted illegally in posting guidance documents, FAQs, and other information on its website without going through the APA-required rulemaking process. Applying the six-factor test set forth in the Supreme Court’s 1984 decision in Metromedia, Inc. v. Director, Division of Taxation, the Court found that, contrary to NJDEP’s protestations, the postings “do more than implement the waiver rule; they establish the rules of the game.” In creating and posting the documents, the Court held, NJDEP had engaged in de facto rulemaking without following the notice-and-comment procedure prescribed by the APA. Accordingly, the Court invalidated the websites documents to the extent that they went beyond the terms of the waiver rule itself.

The decision represents a major victory for the Christie Administration in its ongoing effort to provide relief from what it sees as unnecessary and overly restrictive regulation, especially at NJDEP. For the first time, the broadly worded waiver rule gives NJDEP sweeping authority to grant waivers from regulatory requirements. The practical effect of the waiver rule may be a different story: according the department’s website, as of March 25, 2013, since it began accepting waiver applications on August 1 2012, NJDEP had received just twenty-five requests for a waiver, had denied or rejected as incomplete eleven of those requests, and had yet to grant a waiver pursuant to the waiver rule.

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

Tags: DEP, Environmental & Green Issues, NJDEP, Regulations, Waiver Rule, waiver

Posted on February 11, 2013 by Sandro G. Ocasio

NJDEP Posts FAQs on Post-Sandy Flood Elevation Standards

Boardwalk destruction caused by Hurricane Sandy in Lavallette, NJ. The New Jersey Department of Environmental Protection (“NJDEP”) recently issued its answers to frequently asked questions (FAQs) regarding the emergency amendments to New Jersey’s Flood Hazard Area Control Act Rules. The emergency regulations were signed into law by New Jersey Governor Christie on January 24, 2013, in the wake of Hurricane Sandy. The new regulations adopt the Federal Emergency Management Agency’s (“FEMA”) updated Advisory Base Flood Elevation (“ABFEs”) maps as the rebuilding standard for the entire state. The rules set minimum elevation standards for the reconstruction of houses and buildings in areas that are in danger of flooding. Because the rules are complex and so many officials and the public are affected, NJDEP issued the FAQs explaining the benefits of the amendments, who is covered, and tips for getting started.

Highlights of the rule amendments include the following:

1) Adopts height and construction requirements in FEMA’s Advisory Base Flood Elevation maps as a state standard for reconstruction.

2) Allows property owners who rebuild to the ABFEs (plus one additional foot, as has been required by the New Jersey Flood Hazard Area Control Act since 2007) to do so via Permit By Rule, thus, eliminating the need for property owners to apply for DEP's Flood Hazard Area permits, saving them substantial time and money.

3) Allows “wet floodproofing” for non-residential buildings, whereby a building may flood, but will structurally withstand the water, as an alternative to requiring elevations or dry floodproofing.

The regulations will have dramatic ramifications on flood insurance premiums. By way of illustration, if a property owner currently in an "A zone" at 4 feet below the BFE elevation is reclassified as a higher threat "V zone" and takes no action, that property will be subject to an approximate annual premium of up to $31,000 because they will be rated at a higher risk. If the same owner were to rebuild to the suggested BFE and appropriate construction standards, the annual premium would be approximately $7,000. If that owner were to rebuild 2 feet above the BFE with the construction standards for their new zone, the annual premium would be approximately $3,500. Under this illustration, the property owner could save up to $27,500 annually.

Hurricane Sandy had an unprecedented impact on New Jersey residents. Developers and property owners, particularly those affected by the hurricane, should take advantage of NJDEP’s guidance and better familiarize themselves with the new rules. Adhering to the regulations will help protect the property from flood damage in the future and help save on significant costs.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

Tags: DEP, Environmental & Green Issues, NJDEP, New Jersey, Property Damage, Regulations, Sandy, Superstorm Sandy, Waterfront Development

Posted on January 24, 2013 by Sandro G. Ocasio

Action Required: NJDEP Implements New Vapor Intrusion Screening Levels

The New Jersey Department of Environmental Protection (“NJDEP”) recently issued new vapor intrusion screening levels (“VISL”) and related guidelines, which will have an immediate impact on existing remediation sites. The screening levels were updated to reflect the changes in toxicity values and risk-based equations set forth in the United States Environmental Protection Agency’s (“USEPA”) most recent Regional Screening Level (“RSL”) Tables. NJDEP implemented the new VISL as of January 16, 2013. Parties conducting remediations and their Licensed Site Remediation Professionals will need to analyze how these new screening levels impact their sites.

The procedures and associated timeframes in which to conduct a site evaluation based on the new VISL varies as follows:

Unrestricted use final remediation documents for ground water issued prior to January 16, 2013 require no further investigation for the vapor intrusion (“VI”) pathway.
Restricted use final remediation documents for ground water issued prior to January 16, 2013 require an evaluation of the VI pathway as part of the biennial certification; an assessment of the order of magnitude changes using the new VISL; and, based on this information, implementation of additional remediation as required.
Remedial Action Workplans for ground water issued prior to January 16, 2013 require a review of existing data for order of magnitude changes using the new VISL and, based on this information, implementation of additional remediation as required.
If none of the aforementioned scenarios exist, there is a 90 day period to evaluate all existing site conditions and data using the new VISL. The 90-day review period terminates April 16, 2013.

A VISL implementation flowchart is available here.

As a result of the new VISL, the screening levels for some compounds, including tetrachloroethene, have increased while five others, including 1.3-dichlorobenzene, have been eliminated completely. In addition, the new VISL tables contain two new compounds: naphthalene and 2-methylnaphthalene. Accordingly, under the new VISL, certain cases may no longer meet the criteria as an Immediate Environmental Concern or Vapor Concern and may be reclassified where appropriate.

The new NJDEP master table of VISL is available here.

NJDEP will host a session on the new VISL on Wednesday, January 30th, from 1:00 - 3:00 PM in the DEP Public Hearing Room, in Trenton, New Jersey. The seminar will also be available via webinar.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

Tags: DEP, Environmental & Green Issues, LSRP, NJDEP, New Jersey, Regulations, Remediation, SRRA, USEPA

Posted on November 19, 2012 by Harry H. Clayton, IV

NJDEP Temporarily Waives Permitting Requirements For Rebuilding Infrastructure After Sandy

Boardwalk destruction caused by Hurricane Sandy in Lavallette, NJ. On November 3, 2012, less than five days after Hurricane Sandy washed away much of the Jersey Shore and its infrastructure, NJDEP Commissioner Bob Martin signed Administrative Order No. 2012-13 (the “Order”), temporarily waiving permitting requirements for State, County and Municipal agencies seeking to rebuild after the storm. The swift action of NJDEP unleashed a storm of its own from critical environmentalists worried that the rush to rebuild the devastated areas would recreate the same vulnerabilities.

The Order provides certain temporary permitting waivers to State, County and Municipal agencies for purposes of repairing and/or replacing public infrastructure damaged as a result of Hurricane Sandy. Permitting programs and rules affected by the Order include the Coastal Permit Program, the Flood Hazard Area Control Act, and the Freshwater Wetlands Protection Act Rules.

Waivers provided by the Order are limited to activities consisting of (1) in-kind replacement of existing public infrastructure, and (2) repair of scouring caused by Hurricane Sandy that is directly adjacent to an existing bridge, culvert, or public roadway. In order to qualify, the activities cannot (a) result in an exceedance of the pre-existing footprint of the public infrastructure, (b) adversely impact previous flow conditions or environmental resources, or (c) obstruct flow in the respective channel or floodway.

Within one hundred eighty (180) days of the Order, the State, County and Municipal agency conducting the work, must submit an inventory of the damage resulting from Hurricane Sandy, the activities completed or underway that meet the criteria of the Order, and certifications from an agency official and a licensed engineer confirming that the activities qualify under the criteria. Following receipt of this information, NJDEP will provide written authorization for the eligible activities. State, County and Municipal agencies will also have to submit a final report within sixty (60) days of receiving the written authorization by NJDEP. Under the Order, NJDEP has reserved its enforcement rights with respect to ineligible activities improperly performed by State, County and Municipal agencies, and may require a formal permit application or restoration for non-compliant activities.

The Order is limited to public infrastructure activities, and provides no exemption for (i) activities conducted by private parties and/or on private lands; (ii) compliance with federal requirements; or (iii) discharges or releases that may occur during the exempted activities.

Citing to the need to “restor[e] basic public infrastructure” as “a critical first step toward the recovery of our cities and towns” the Commissioner stated that “[r]ed tape should not and will not hold up this vital work.” However, the New Jersey Sierra Club and other critics of the Order argue that exemptions will encourage redevelopment of State infrastructure too quickly without proper consideration of whether modifications are necessary to prevent the destruction or deterioration of these resources during future storm events. Given recent increases in significant weather events, consideration of sustainable infrastructure may be warranted as the rebuilding process begins. It will be important for impacted areas to understand and monitor how New Jersey will balance these competing interests as it looks to the future.

Harry H. Clayton, IV is an Associate in the Gibbons Real Property & Environmental Department.

Tags: &, Development/Redevelopment, Environmental & Green Issues, NJDEP, New Jersey, Permitting", Sandy, Superstorm Sandy, Sustainability, Wetlands, Zon"Zoning

Posted on September 28, 2012 by Adam C. Arnold

NJ Supreme Court Clarifies Nexus Standard Under Spill Act

In NJDEP v. Dimant, et al., the Department filed suit under New Jersey’s Spill Compensation and Control Act (the “Spill Act”), alleging that the defendant, Sue’s Clothes Hanger, Inc. (“Sue’s”), a dry cleaning business, was responsible for damages related to groundwater contamination on various properties in Bound Brook. The sole evidence supporting DEP’s claim for damages against Sue’s rested on a pipe that was found dripping perchloroethylene (PCE) onto a driveway in the late 1980s. The trial court judge ruled that the DEP had not sufficiently proved a nexus between the PCE dripping from Sue’s pipe in the 1980s and the groundwater contamination at issue. The plaintiffs appealed.

The Appellate Division affirmed and the New Jersey Supreme Court (which released its decision on September 26th), affirmed and modified the Appellate Division’s ruling, and determined that “a party in Sue’s circumstances must be shown to have committed a discharge that was connected to the specifically charged environmental damage … in some real, not hypothetical way.” The DEP argued that because PCE had been found dripping onto the ground from a pipe, Sue’s should have been held strictly liable under the Spill Act for all costs and damages associated with all PCE contamination in the area. In support of this argument, DEP relied on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which plaintiffs claimed requires no proof of causation between a defendant’s release of a hazardous substance and a plaintiff’s incurrence of response costs. Specifically, the DEP argued that a “proven discharge at the site of contamination is sufficient to meet the nexus test.” The Court rejected this argument, noting that the distinct language in the Spill Act made it inappropriate to adopt the more lenient causation standard applied in CERCLA claims. However, the Court rejected a more stringent “proximate cause” standard and fashioned a middle ground to establish proof of nexus under the Spill Act. In sum, the Court held that “on proof of the existence of a discharge, one can obtain prompt injunctive relief under the Spill Act. However, in an action to obtain damages, authorized costs and other similar relief under the Act there must be shown a reasonable link between the discharge, the putative discharger, and the contamination at the specifically damaged site.”

The ultimate impact of this decision for future Spill Act cases remains to be seen. Until now, New Jersey courts have largely looked to CERCLA for guidance on proof of nexus in Spill Act cases. The State’s highest court has now clarified the standard for nexus in a Spill Act suit and has created two different standards: one for injunctive relief and one to recover damages. To recover damages, a plaintiff cannot simply present a hypothetical nexus and ask the trier of fact to connect the dots, nor can they obtain damages from a defendant without connecting that defendant’s specific discharge to the contamination at a specific site.

Adam C. Arnold is an Associate in the Gibbons Real Property & Environmental Department. William S. Hatfield, a Director in the Gibbons Real Property & Environmental Department, co-authored this post.

Tags: Environmental & Green Issues, NJDEP, New Jersey, Spill Act

Posted on August 15, 2012 by Gibbons P.C.

Gibbons Real Property & Environmental Team Members Contribute Chapter in Brownfields Publication

David A. Brooks and Paul M. Hauge, both members of the Gibbons Real Property & Environmental Department, contributed a chapter in Implementing Institutional Controls at Brownfields and Other Contaminated Sites. Edward F. McTiernan, Deputy Counsel with the New York Department of Environmental Conservation, co-authored the chapter with Mr. Brooks and Mr. Hauge.

Their chapter covers the state of New Jersey; and appears in Part III of the volume, which is entitled "Selected States and Ontario, Canada." The chapter covers New Jersey’s particular approach to institutional controls, including the implications of the 2009 Site Remediation Reform Act. The book is published by the American Bar Association.

Implementing Institutional Controls at Brownfields and Other Contaminated Sites discusses why the Uniform Environmental Covenants Act (UECA) is important and how most states are handling institutional control issues, whether they have adopted UECA or not. Other institutional control tools, such as EPA's use of five-year reviews under the federal Superfund law, Land Use Control Implementation Plans, and state and local innovations are also discussed, as well as recent efforts to improve regulators’ and practitioners’ understanding of institutional control issues.. Amy L. Edwards is the editor of this edition.

Mr. Brooks concentrates his practice in the area of environmental law, especially regulatory compliance, including compliance with the Industrial Site Recovery Act; solid waste and hazardous waste and substances management; Brownfields redevelopment; and remediation and litigation under the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) and the New Jersey Spill Compensation and Control Act. He also worked on numerous Brownfields redevelopment projects.

Mr. Hauge represents clients in administrative and judicial proceedings brought under federal and state environmental statutes and common law, including New Jersey Spill Act directives, EPA investigations, brownfield disputes, Spill Act and CERCLA/Superfund cost recovery and contribution actions, natural resource damage suits, and toxic tort litigation.

Tags: Brownfields, Environmental & Green Issues, NJDEP

Posted on May 7, 2012 by David A. Brooks

Final ARRCS Rules Adoption Published in NJ Register

To fully implement the Site Remediation Reform Act, the New Jersey Department of Environmental Protection (NJDEP) has published a notice of adoption of amendments to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS rules), N.J.A.C. 7:26C in the New Jersey Register today, May 7, 2012. This adoption also amends several other rules related to site remediation in New Jersey, including the repeal and replacement of the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and amendments to the Industrial Site Recovery Act rules, N.J.A.C. 7:26B. This rule adoption is concurrent with the final May 7, 2012 deadline for almost all remediating parties to engage a Licensed Site Remediation Professional to conduct remediations in NJ.

David A. Brooks is a Director in the Gibbons Real Property & Environmental Department.

Tags: Environmental & Green Issues, ISRA, NJDEP, New Jersey, Remediation, SRRA

Posted on April 18, 2012 by Sandro G. Ocasio

Cause for Concern? NJDEP to Score Contaminated Sites Under the Remedial Priority Scoring System

The New Jersey Department of Environmental Protection ("NJDEP") will soon release scores for contaminated properties pursuant to the Remedial Priority Scoring ("RPS") system. The RPS system was mandated by the Spill Compensation and Control Act (N.J.S.A. 58:10-23.16) as amended by the Site Remediation Reform Act ("SRRA").

Under the statute, the factors that NJDEP may consider in ranking the sites include:

the level of risk to the public health, safety, or the environment;
the length of time the site has been undergoing remediation;
the economic impact of the contaminated site on the municipality and on surrounding property; and
any other factors deemed relevant by the NJDEP.

The RPS system is a computerized modeling system designed to help the Department to categorize sites based on potential risk to public health, safety or the environment. The RPS model utilizes a variety of information, including ground water, soil, and vapor intrusion, sampling data to determine a site score. Once the RPS score is determined, the site is catalogued for relative ranking against sites with similar scores and assigned a specific category number from 1 through 5. Category 1 represents the lowest score (least potential risk to public health) and Category 5 represents the highest score (greatest potential risk to public health).

Should the RPS scores trouble remediating parties? On the one hand, the Department states that it will use the RPS system simply to assist it in allocating its Site Remediation Program resources and that categories represent potential risk and are not indicative of compliance. On the other hand, NJDEP admits that the RPS system is a tool to help it evaluate if direct oversight of remediation activity by the NJDEP is warranted now that the typical remediation will be overseen by a private Licensed Site Remediation Professional. Indeed, N.J.S.A. § 58:10C-27(b)(4) states that a site ranked by the “category requiring the highest priority pursuant to the ranking system” may be subject to direct oversight.

But fear not. NJDEP advises that “if a Category 5 site is being actively remediated pursuant to the regulations and in compliance with the mandatory and regulatory timeframes then it would not be considered for direct Department oversight.” Additionally, the responsible party is allowed a one-time opportunity to review their initial score and category and may provide NJDEP with supplemental information that should have been submitted if it believes the initial score is based on old or incorrect data. Therefore, direct oversight is not automatic, however, a party expecting a Category 5 ranking should be diligent in ensuring it is in compliance with all regulations. A party receiving a Category 5 ranking will have the opportunity to convince NJDEP that it deserves a lower score.

NJDEP anticipates that the category determinations will be finalized and posted on the SRP website in September of 2012. Originally, NJDEP intended to send letters to responsible parties with their draft scores last November. This exercise was pushed back, but will need to occur by June in order for NJDEP to have a sufficient comment and review period prior to the September posting. After September, NJDEP will then update its listing during the first year at 6 month intervals and then quarterly from that point forward.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

Tags: DEP, Environmental & Green Issues, NJDEP, New Jersey, Regulations, SRRA, Spill Act

Posted on March 28, 2012 by Paul M. Hauge

Groups Sue NJDEP to Block Waiver Rule

As we recently reported, the New Jersey Department of Environmental Protection (NJDEP) announced on March 8 that it had finalized a new waiver rule that will permit the department to relax environmental rules in certain limited circumstances. It took a coalition of environmental and labor groups just two weeks to file a lawsuit challenging the new rule.

The legal challenge was predictable, given the overwhelming response to NJDEP’s March 2011 proposal, which drew comments from over 500 members of the public. The announcement of the lawsuit again revealed sharp divisions about the wisdom and legality of the rule . Those challenging the rule claim that it violates separation-of-powers principles and undercuts important environmental protections, while the rule’s supporters see it as a carefully circumscribed tool for providing needed flexibility.

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

Tags: Environmental & Green Issues, NJDEP, New Jersey, Regulations, waiver

Posted on March 12, 2012 by Jason R. Tuvel

The Extension of the Permit Extension Act is on the Move, To Be Reviewed Today By Assembly Appropriations Committee

About two months ago, several NJ Legislators, including State Senator Paul Sarlo (Bergen/Passaic) and Assemblyman Ronald Dancer, proposed bills that would amend the 2008 “Permit Extension Act.” Designed to give developers breathing room in the sluggish economy by extending the validity of development approvals, Proposed Bill S743 (the “Bill” or “S743”) is gaining traction and is moving through the necessary legislative committees. On March 5, 2012, S743 passed by a vote of 4-0 by the Senate Budget and Appropriations Committee. The Bill is scheduled to go before the Assembly Appropriations Committee on March 12, 2012.

Under the current version of the Permit Extension Act, the expiration of all “approvals” that were granted during the “extension period” as defined in the statute have been tolled through December 31, 2012. The “extension period” is currently defined as “the period beginning January 1, 2007 and continuing through December 31, 2012.” S743 proposes that the definition of the “extension period” be changed so that it runs through December 31, 2014. Therefore, based on the 6-month tolling provision currently in the Permit Extension Act, approvals received during the extension period could be extended as far out as June 30, 2015. It should be noted that A337 proposed to extend the “extension period” through December 31, 2015. However, A337 has not gained the same head of steam as S743.

S743 as amended includes language to make it clear that as it pertains to Statewide planning areas, the definition of “extension area” shall remain in effect until June 30, 2013, or until such later time as the State Planning Commission revises and readopts New Jersey’s State Strategic Plan and adopts regulations to refine this definition. Further, all underlying municipal, county, and State permits or approvals within the Pinelands Area are extended pursuant to the “Pinelands Protection Act,” N.J.S.A. 13:18A-1 et seq.

The definition of “approvals” under the Permit Extension Act covers most permits issued by State rule or regulation, including, preliminary and final approvals for development applications under the New Jersey Municipal Land Use Law. S743 proposes that the definition of “approvals” be amended to include any “agreement with a municipality, county, municipal authority, sewerage authority, or other governmental authority for the use or reservation of sewerage capacity.”

S743 appears to be the bill that may amend the Permit Extension Act to help developers that need to wait a little longer for the economy to bounce back to save projects for which they have spent significant funds in obtaining approvals for development.

Jason R. Tuvel is an Associate in the Gibbons Real Property & Environmental Law Department.

Posted on March 9, 2012 by Paul M. Hauge

NJDEP Finalizes Waiver Rule

The New Jersey Department of Environmental Protection (NJDEP) announced on March 8 that it had finalized a new waiver rule that will permit the department to relax environmental rules in certain limited circumstances. The new rule, which grew out of an executive order from Governor Christie that called upon state agencies to apply “common sense principles” in implementing and enforcing legal requirements, will be formally published on April 2, 2012 and will become effective on August 1, 2012.

NJDEP’s March 2011 proposal for the waiver rule generated many hundreds of comments from over 500 members of the public. The agency also held a public hearing on the proposed rule, where most speakers opposed it. The final rule reflects some modifications to the original proposal, but retains its basic thrust: to allow NJDEP to waive strict compliance with its rules in limited circumstances, in a manner that is consistent with the agency’s environmental mission.

A waiver may be granted only when at least one of the following criteria are satisfied: (1) the applicant is subject to conflicting rules, (2) strict compliance would be unduly burdensome, (3) the waiver would result in a net environmental benefit, or (4) the waiver is justified by a public emergency. The waiver rule does not apply to a number of categories of requirements, including requirements imposed by statute or by federal regulations; numeric or narrative standards that protect human health; and requirements concerning remediation funding sources and other financial matters.

NJDEP has yet to work out the details of the process for the submission and review of waiver applications. It will not accept applications until August 1. Training sessions for those interested in learning about the process will begin in April.

A courtesy copy of the final rule is available on NJDEP’s website.

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

Tags: Environmental & Green Issues, NJDEP, New Jersey, Regulations, waiver

Posted on February 14, 2012 by David A. Brooks

NJDEP Clarifies Impact of Site Remediation Reform Act on Requirements of Administrative Consent Orders and Remediation Agreements

With full implementation of the Site Remediation Reform Act on the horizon, the New Jersey Department of Environmental Protection (NJDEP) recently clarified that for parties currently proceeding with remediation under NJDEP oversight pursuant to an Administrative Consent Order (ACO) or Remediation Agreement (RA), such parties will be expected to engage a Licensed Site Remediation Professional no later than May 7, 2012. Any ACO/RA requirements to obtain NJDEP pre-approval of reports and workplans will be held in abeyance. Likewise, any ACO/RA specific timeframes will also be held in abeyance. Instead, responsible parties must meet all regulatory and mandatory timeframes prescribed in applicable rules. However, the ACO/RA will otherwise remain in effect until the remediation is complete or covered by a remedial action permit and parties will be subject to, among other requirements, the remediation funding source requirements and stipulated penalties.

David A. Brooks is a Director in the Gibbons Real Property & Environmental Law Department.

Tags: Environmental & Green Issues, ISRA, LSRP, NJDEP, New Jersey, Remediation, SRRA

Posted on January 24, 2012 by Jason R. Tuvel

The Permit Extension Act May Keep Extending

Apparently concerned that the economy may not be recovering rapidly enough, the 215th New Jersey Legislature now convened, introduced a new bill (A337) on January 10, 2012, by Assemblyman Ronald S. Dancer of District 12, to change the definition of the “extension period” under the Permit Extension Act so that it runs through December 31, 2015. Therefore, based on the 6-month tolling provision currently in the Permit Extension Act, approvals received for development applications during the extension period could be extended as far out as June 30, 2016. Bill A337 has been referred to the Assembly Housing and Local Government Committee.

In 2008, as the economy was sliding into recession, the New Jersey Legislature passed the “Permit Extension Act,” which tolled the expiration of all development approvals that were granted during the “extension period” as defined in the statute. The intent was to preserve the benefit of permits until the economy improved. The “extension period” is currently defined as “the period beginning January 1, 2007 and continuing through December 31, 2012.” The definition of “approvals” under the Permit Extension Act covers most permits issued by State rule or regulation, including, preliminary and final approvals for development applications under the New Jersey Municipal Land Use Law.

If signed into law, Bill A337 could provide developers with an opportunity to wait a little longer for the economy to turn around in order to build projects that have received approvals and are considered dormant at the present time.

Jason R. Tuvel is an Associate in the Gibbons Real Property & Environmental Department.

Tags: Conditional Use, DEP, Development/Redevelopment, Due Diligence, Entitlements, Environmental & Green Issues, GHG, Green Buildings, Land Use, MLUL, Municipal, Municipal Land Use Law, NJDEP, New Jersey, Permit, Regulations, Transactional Real Estate & Leasing, Utilities, Variance

Posted on December 13, 2011 by Susanne Peticolas

Nissan Leaf EV Expected to be Available Nationwide in Early 2012

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."

Nissan expects to make the Leaf available in all 50 states by March of 2012, too late for the federal tax incentive for plug in electric vehicles scheduled to expire at the end of December 2011.

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

Tags: Air Pollution, Environmental & Green Issues, GHG, Highway, NJDEP, New Jersey

Posted on November 2, 2011 by Susanne Peticolas

NJDEP to Issue Draft Remedial Priority Scores for Contaminated Sites

In the next few weeks, responsible parties for some 12,000 known contaminated sites in New Jersey will be receiving a letter with a draft Remedial Priority Score (RPS) for their particular site compliments of the New Jersey Department of Environmental Protection (NJDEP). The NJDEP has not specified how the rankings will be used, although the RPS system has been described by the NJDEP as “a triage tool to sort sites for further consideration.”

Under the Site Remediation Reform Act (SRRA), N.J.S.A. 58:10C-1 et seq., passed in May 2009, the NJDEP is required to establish a ranking system for active remediation sites based on risk to public health, safety and the environment, the length of time the site has been undergoing cleanup, economic impact, and other relevant factors. To that end, NJDEP designed the Remedial Priority Scoring system which uses modeling assumptions on data gathered from a number of databases on the 12,000 known contaminated sites. Certain sites are excluded from the RPS process, including homeowner sites, sites undergoing operations and maintenance monitoring, and unknown source cases.

The computerized process attempts to provide relative rankings of active sites using selected data from the Geographic Information System (GIS) tools, multiple geographic databases and layers, the New Jersey Environmental Management System (NJEMS), the Known Contaminated Sites (KCS) report, and groundwater sampling data. Ongoing development of the model will eventually incorporate contaminated soil data and corresponding pathways. All sites will receive a tiered ranking between one and five, with tier five representing the highest contamination risk.

The RPS system attempts to minimize subjective human interpretations and anecdotal data, and thus, the final score is only as reliable as the data upon which the model is based. Score accuracy thus depends on the quality and quantity of the available data. Responsible parties can take action to improve a score by submitting additional information. For example, “closed” pathways between the source of contamination and receptors, institutional and engineering controls, and the absence of an impact to groundwater all act to reduce the cumulative risk of a site. Responsible parties will have sixty (60) days to challenge the ranking by submitting new information or an explanation of why the proposed ranking is inaccurate or fails to account for certain data.

While it is not clear what use NJDEP will make of these rankings, one can be sure that creative lawyers will be analyzing potential uses for them particularly in the area of toxic torts, environmental cost recovery cases and property transfers. Responsible parties should be on the look out for these draft RPS rank letters and analyze them carefully.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department. Brett S. Theisen, an Associate in the Gibbons Financial Restructuring & Creditors' Rights Department, assisted in the preparation of this post.

Tags: DEP, Environmental & Green Issues, NJDEP, New Jersey, SRRA, Spill Act

Posted on October 25, 2011 by Susanne Peticolas

NJ Charges Forward with Electric Vehicle Network

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.

The Network dovetails with EV activities already underway in New Jersey. Several bills mandating EV charging stations in turnpike service stations and new shopping center developments are currently pending before the New Jersey Legislature. In addition, Avalon unveiled an EV charging station on August 5, 2011, touting it as the first charging station at the Jersey shore.

A recent study by Pike Research forecasts that the New Jersey-New York-Pennsylvania region will be among the top five metropolitan areas for electric vehicle purchases between 2011 and 2017. Consumers will not buy EVs unless they are confident that they can find a charging station away from home as easily as they can find a gas station. The EV Network is intended to meet that concern with the necessary infrastructure. To help future EV drivers find the infrastructure, Google added the locations of EV charging stations to their maps in March of 2011.

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

Tags: Air Pollution, Environmental & Green Issues, GHG, Highway, Land Use, NJDEP, New Jersey

Posted on August 16, 2011 by Susanne Peticolas

NJDEP Proposes New Rules for Site Cleanups

On August 15, 2011, the New Jersey Department of Environmental Protection (NJDEP) issued proposed Final Rules to implement the Site Remediation Reform Act (SRRA) adopted in May 2009. These rules are intended to be the final implementation step in the phased transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by Licensed Site Remediation Professionals (LSRPs). Instead of NJDEP overseeing every step of a cleanup, the LSRP, licensed by a 13-member Licensed Site Remediation Professional Board with investigative and disciplinary powers, is responsible for making day-to-day decisions about a clean-up. Certain categories of cleanups remain under NJDEP oversight, such as where the responsible party has a history of non-compliance or has failed to meet mandatory deadlines. The rule proposal appeared in the New Jersey Register on August 15, 2011 and can be viewed online. Comments can be submitted until October 14, 2011.

The proposal includes major amendments, repeals and new rules intended to fully implement the new LSRP oversight remediation paradigm. The proposed Final Rules provide for the following:

Amending the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) rules, the Underground Storage Tank (UST) rules and the Industrial Site Remediation Act (ISRA) Rules to remove all provisions related to the phase-in period;
Recodifying all administrative requirements from the ISRA Rules and UST rules to the ARRCS rules;
Adding mandatory timeframes for completion of remedial investigation and implementation of remedial action;
Repealing and replacing the current Technical Requirements with new performance-based Technical Requirements, intended to allow more flexibility in addressing contamination and potential exposure pathways. Many of the existing Technical Requirements will be recast as a new series of technical guidance documents providing direction on how to achieve the performance-based goals;
Amending the Discharges of Petroleum and Other Hazardous Substances rules to require compliance with both a facility’s discharge cleanup and removal plan and the ARRCs rules; and
Reformatting text where needed to make the rules easier to understand, to correct typographical and grammatical errors, and to update cross-references.

According to NJDEP Commissioner Bob Martin,

It is a priority of the Christie Administration to clean the more than 16,000 contaminated sites across the State. This is an important step to help us more quickly and efficiently achieve that important goal. It will benefit public health and the environment, and will make underutilized properties available more quickly for redevelopment, benefiting economic growth.

The proposed rules were developed with the input of interested stakeholders. A public hearing on the proposed rules is scheduled for September 13 at 9 am in the first floor public hearing room at the DEP building, 401 East State Street, Trenton. NJDEP will accept written comments until October 14, addressed to Janis Hoagland, NJDEP, Office of Legal Affairs, Mail Code 401-041L, PO Box 402, 401 East State Street, 4th Floor, Trenton, NJ 08625-0402, ATTN: DEP Docket No. 12-11-07. The transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by LSRPs presents complex issues for the department and the regulated community. Thus it is important for the regulated community to analyze the proposed rules and take advantage of NJDEP’s efforts to respond to stakeholder comments.

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

Tags: Brownfields, DEP, Development/Redevelopment, Environmental & Green Issues, ISRA, LSRP, NJDEP, New Jersey, Regulations, Remediation, SRRA, Spill Act

Posted on August 10, 2011 by Paul M. Hauge

Court Overrules DEP, Finds Developer Was Entitled to Exemption From Highlands Act

The New Jersey Appellate Division delivered a rebuke to the state’s Department of Environmental Protection (DEP) on August 1, finding that DEP’s Commissioner ignored undisputed evidence and made critical legal errors in holding that two development projects did not qualify for an exemption from the strict requirements of the Highlands Water Protection and Planning Act. The court’s decision in Lakeside Manor v. State of New Jersey Department of Environmental Protection reversed the Commissioner’s decision, finding that the developer had satisfied all statutory requirements for the exemption.

The statute, which was enacted in 2004, contains an exemption from its regulatory provisions for major projects that had received at least one of a specified list of land use approvals and at least one of a specified list of DEP permits by March 29, 2004. Jacinto Rodriguez, the president and owner of two development entities, obtained such approvals for both projects well before the deadline: subdivision and site plan approvals in 1999, and DEP permits for sewer lines in 2000. Based on these and other approvals, Rodriguez commenced construction of the projects.

The projects were not yet complete when the statute came into effect, so Rodriguez filed a combined application with DEP for a “Highlands Applicability Determination” for the two projects. DEP initially denied the application, citing doubts about whether the approvals were still in effect, but Rodriguez sought an adjudicatory hearing, and an Administrative Law Judge (ALJ), in his recommended decision, concluded that the projects qualified for the exemption. DEP’s Commissioner, however, rejected the ALJ’s recommendation, and determined that the projects were not eligible for the exemption. Both entities appealed the final decision to the Appellate Division.

The Court found unequivocally that the Commissioner lacked any basis for denying the exemption. With respect to the land use approvals, the Court noted that the Commissioner had overlooked both the stipulation of DEP’s counsel that the approvals remained valid, and clear evidence that the approvals were in fact effective as of the cut-off date. As for the Commissioner’s finding that the DEP sewer permits were no longer valid, the Court criticized both the legal conclusions and the factual findings of the Commissioner. The issue here was whether the development entities’ failure to comply with certain conditions of the permits (obtaining a mapping revision or waiver for wetlands from EPA) rendered the approvals, as the Commissioner had found, “null and void.” Not so, said the Appellate Division. While violation of a permit condition may be grounds for its revocation, revocation cannot occur without a proper proceeding, and may not even be the appropriate remedy for the violation. Moreover, even revocation does not mean the permit ceased to exist as of the date of the violation. The Commissioner, said the Court, could not do an end-run around these protections by simply declaring the permits null and void. Finally, the record evidence clearly showed that revocation of the permits was not warranted; DEP’s own staff had recognized that construction authorized by the sewer permits did not encroach on any EPA-regulated wetlands. In short, the Commissioner was wrong on the law and on the facts.

As previously covered in this blog, the Highlands Act continues to generate judicial opinions about its legality and its implementation, as well as new legislative developments. The Lakeside Manor decision may stand as a warning to future Commissioners that reviewing courts will scrutinize their decisions closely, even where the decision appears to give effect to the statute’s protective purposes.

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

Tags: DEP, Development/Redevelopment, Highlands, NJDEP, New Jersey

Posted on August 2, 2011 by LexBlog

NJICLE Holds its Annual Environmental Law Section Forum

On the weekend of June 24-26, 2011, the New Jersey Institute of Continuing Legal Education (“NJICLE”) in cooperation with the New Jersey State Bar Association (“NJSBA”), and New Jersey Corporate Counsel Association, held its annual Environmental Law Section Forum Weekend (“the Forum”). Taking place in Avalon, New Jersey, the Forum featured three days of seminars covering various hot-button environmental topics including, Funding for Remediating Sites, Vapor Intrusion, the LSRP Program, Non-Governmental Organizations’ Perspectives on Issues and Resolutions, the well-known NJDEP v. Occidental case also referred to as the Lower Passaic River litigation, Climate Change, and rounded out the weekend with two programs on Ethical Issues including Alternative Fee Arrangements and Multi-Party Settlements.

David Brooks of Gibbons P.C. was the moderator and a panelist for the Vapor Intrusion presentation, an issue that has received increased attention in recent years from both US EPA and New Jersey. Other speakers at the Forum included not only legal practitioners but the New Jersey Department of Environmental Protection, Non-Profit Organizations, and Private Sector Companies. Jeannie Fox, President of the New Jersey Board of Public Utilities gave a keynote speech during the Forum focusing on solar issues in New Jersey.

As a testament to the increased interest in environmental topics as well as the historical success of the Forum, program attendance increased over last year. Attendees earned 11.4 Continuing Legal Education credits including several highly sought after ethics/professionalism credits.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

Tags: Brownfields, Climate Change, DEP, Development/Redevelopment, Environmental & Green Issues, Financing, LSRP, NJDEP, New Jersey, Remediation, Solar, Spill Act, Utilities

Posted on June 8, 2011 by Sandro G. Ocasio

New Jersey Program to Fund Brownfield Clean Ups Closed Temporarily

The Brownfield Reimbursement Program (the “Program”), a New Jersey State initiative designed to reimburse developers up to 75% of costs incurred to remediate a brownfield site, has run out of money and is temporarily shut down. This development arrives on the heels of a recent New Jersey Department of Environmental Protection (“NJDEP”) announcement that, effective May 3, 2011, applications to the Underground Storage Tank Fund, a similar initiative to help homeowners remove USTs, will not be reviewed or processed due to insufficient funds.

Effectuated under the Brownfields and Contaminated Site Remediation Act of 1998, the Program was available to any party that is not liable under the Spill Compensation and Control Act N.J.S.A.58:10-23.11g. Funding for reimbursement under the Program was derived from tax revenues and appears to be a victim of the general budget crisis.

This announcement will no doubt stifle future remediation and development of New Jersey’s many brownfield sites for some time. Even if the program gets back on track, NJDEP will be forced to deal with a backlog of applications. According to Irene Kropp, NJDEP Deputy Commissioner, there are currently $71 million worth of Program applications that have not yet been processed. Those already in the queue must be processed prior to the review of any new submissions.

For more information on brownfields generally, please visit NJDEP’s brownfields website.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

Tags: Brownfields, Development/Redevelopment, Environmental & Green Issues, Financing, NJDEP, New Jersey, Remediation

Posted on June 7, 2011 by Gibbons P.C.

David A. Brooks to Moderate Panel at 2011 New Jersey Environmental Law Forum

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.

Tags: Air Pollution, Brownfields, CERCLA, Environmental & Green Issues, NJDEP, Remediation, USEPA

Posted on June 2, 2011 by Paul M. Hauge

N.J. Appellate Court Extends Time Limit for Bringing Strict-Liability Claim for Natural Resource Damages

Thanks to a special “extension statute” enacted in 2001, the statute of limitations that requires the State of New Jersey to commence a civil action within ten years of its accrual does not apply to an action for natural resource damages (NRDs) that is brought “pursuant to the State’s environmental laws.” The Appellate Division recently held that the Legislature intended “the State’s environmental laws” to include the common law -- or at least the common law of strict liability -- and revived a claim that otherwise would have been time-barred.

The State’s Department of Environmental Protection (DEP) filed two complaints against Exxon Mobil Corporation in August 2004, seeking natural resource damages for discharges of pollutants at sites in Linden and Bayonne under the Spill Act and common-law theories of nuisance and trespass. DEP later amended its complaints to add counts sounding in strict liability.

When the trial court dismissed the nuisance and trespass claims, finding that they were time-barred because the extension statute did not apply to such common-law claims, DEP did not appeal that ruling. But when the trial court reached the same conclusion about the common law strict liability claim, DEP filed an interlocutory appeal, which the Appellate Division agreed to hear. Reversing the trial court, the appellate court held that the extension statute did apply, such that DEP’s strict liability claim was not time-barred.

Prior to 1991, New Jersey courts followed the old doctrine of nullum tempus occurrit regi (roughly “time does not run against the king”), under which statutes of limitation did not run against the State. When the Supreme Court abandoned that doctrine in 1991, the Legislature enacted the general ten-year statute of limitations for civil actions brought by the State.

Ten years later, the Legislature exempted various environmental claims from the ten-year statute, and passed the extension statute, one provision of which established a four-year (later changed to 5½-year) limitations period for civil actions to recover NRDs “commenced by the State pursuant to the State’s environmental laws.” Moreover, the extension statute provided that such a cause of action could not accrue before January 1, 2002. (It now sets the accrual date as the later of January 1, 2002 or the completion of the remedial action.) Under the general statute, then, DEP would have had to commence its action by 2001; under the extension statute, its 2004 actions would be timely.

The Appellate Division was thus called on to decide the scope of “the State’s environmental laws,” which the extension statute defines as any one of nine different statutes “or any other law or regulation by which the State may compel a person to perform remediation activities on contaminated property.” In both of its rulings, the trial court had read “the State’s environmental laws” in context, noting that it came between a list of nine statutes and a reference to a “regulation,” which would be promulgated pursuant to a statute.

The Appellate Division took an entirely different tack, subtly transforming the statutory reference to “the State’s environmental laws” to mean “the State’s environmental law,” in the sense of a body of law. Noting that the statutory definition referred to “any other law” rather than using the definite article “a” -- but neglecting to explain the distinction between “another law” and “any other law” -- the Court first found the statute to be ambiguous. This conclusion allowed it to search elsewhere for clues about the Legislature’s intent.

The clues that the Appellate Division chose to consider ranged from minute textual details (the omission from the statute of a word of limitation such as “only”) to statements from legislative history. For example, there was no evidence that the Legislature had the intent of “curtailing the scope of DEP’s regulatory authority” or meant “to foreclose common law causes of action.” One might easily draw a distinction, however, between statutes that “curtail” or “foreclose” causes of action, and those that merely set time limits. Similarly, the Appellate Division accepted DEP’s argument -- which cited provisions of CERCLA, the federal remediation statute -- that it would not make sense to require the State to assert claims for natural resource damages before the underlying cleanup is completed. But even if strict liability claims were found to be outside the scope of the extension statute, the State would still have numerous statutory causes of action to recover NRDs. Indeed, the Court’s references to CERCLA would seem to help make the point that the statutory provisions, whether state or federal, apply to statutory causes of action.

The Appellate Division’s holding was limited to strict liability claims; DEP chose not to appeal from the trial court’s rulings that its trespass and nuisance claims were time-barred. Nor did the Appellate Division explicitly address other types of common law claims. For now, however, “time does not run against the State” when it seeks to assert a strict liability claim for NRDs -- at least until the cleanup is done.

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

Tags: Environmental & Green Issues, Exxon Mobil, NJDEP, Natural Resource Damages, New Jersey

Posted on May 16, 2011 by Susanne Peticolas

NJ Proposes to Ban decaBDE Flame Retardant in Products

In February and May of 2011, the New Jersey legislature induced identical bills in the Senate (S 2722) and Assembly (A3915) to ban the manufacture and sale of products containing decabromodiphenyl ether (decaBDE). DecaBDEs are used in plastics for TV cabinets, consumer electronics, wire insulation, back coatings for draperies and upholstery. Growing concerns over the connection between decaBDEs and liver, thyroid and neurodevelopmental toxicity have lead a number of states, countries, as well as the European Union to institute bans.

Under the proposed legislation, the ban would go into effect on January 1, 2014, and apply to products containing more than 0.1% decaBDE, unless it is used for military or transportation purposes or is solely derived from recycled materials and used exclusively in electronic equipment. Sellers would have up to December 31, 2014 to sell off existing stock. Violations of the act would be an unlawful practice under the NJ Consumer Fraud Act, N.J.S.A 56:8-1 et seq., carrying a penalty of $10,000 for the first offense and up to $20,000 for subsequent violations.

Washington was the first state to implement a ban on decaBDE products, joined by several others, including Oregon, Maine, Vermont and Maryland. In addition, in December 2009, EPA negotiated phaseout commitments from three companies responsible for most of the decaDBEs sold or imported into the United States who agreed to end all uses of the chemical by December 2013.

However, one of the most powerful deterrents to decaBDE sales is likely to be Wal-Mart’s Product Safety and Regulatory Notice of December 28, 2010. The notice, issued to Wal-Mart’s suppliers announced that beginning June 1, 2011, it would enhance its testing of consumer products for all polybrominated diphenyl ethers (PBDEs), including decaBDEs. What vendor would risk its supply contract with the world’s largest retailer when faced with clear direction backed up with enhanced testing?

EPA would appear to agree. As quoted in The Washington Post, Steve Owens, assistant administrator of the EPA’s Office of Chemical Safety and Pollution Prevention, stated: “Wal-Mart has taken an important step toward protecting children and families from exposure to toxic chemicals … EPA has long had concerns about PBDEs.” The Washington Post noted that although EPA had cited PBDEs as chemicals of concern in 2010, it had not been able to limit their use. In the absence of federal action, states and retailers have stepped up. The result is more complexity for corporate compliance because the various bans and limitations rarely correspond with each other, differing by products covered and dates of implementation.

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

Tags: CERCLA, Environmental & Green Issues, NJDEP, New Jersey, Spill Act, Superfund, Water Pollution

Posted on May 12, 2011 by Gibbons P.C.

Updated Guidance From USEPA Concerning Brownfield Redevelopment

Encouraging development of environmentally challenged real estate -- brownfields -- is usually the task of state agencies. In New Jersey the Office of Smart Growth; the Economic Development Authority and the Department of Environmental Protection all offer programs intended to encourage redevelopment of brownfields. However, states are struggling to fund and support their brownfield programs and funds for outreach to potential developers and their allied professionals are in short supply.

As a result USEPA’s recent “Federal Programs Guide” is a welcome reminder of the federal resources that may be available to assist brownfield redevelopment projects. This comprehensive guidebook provides an agency-by-agency survey of brownfield-related initiatives. EPA’s guidebook also presents a valuable primer on tax credits and favorable tax treatment for brownfield remediation.

Tags: CERCLA, Environmental & Green Issues, NJDEP, New Jersey, Spill Act, Superfund, Water Pollution

Posted on April 28, 2011 by Sandro G. Ocasio

DEP Launches Coastal E-Permitting Program

The New Jersey Department of Environmental Protection (“NJDEP”) launched a new e-permitting program that will allow the public to apply on-line for certain coastal permits. The program is consistent with the Governor’s “Common Sense Principles” outlined in Executive Order No. 2 which focused on the need to reduce the high costs and regulatory burdens that are thought to impede growth and opportunity in the State of New Jersey.

The program will compliment NJDEP’s existing on-line permit application systems for its air, water and underground storage tank cleanup programs. Property owners may now apply for two types of general permits on-line: a GP-14 permit for in-kind bulkhead replacements and a GP-19 permit for dock replacements in artificially constructed lagoons. The process simply requires the applicant to answer a short list of questions and to certify to the truthfulness of those answers. Based on the applicant’s responses, the program will approve or reject the permit.

The new program is expected to vastly streamline the existing permit process, which currently may take up to three months for a response. Automating the permit process also frees up valuable NJDEP resources.

NJDEP will continue to expand its online resources by implementing a system for the submission of wetlands delineations, or Letters of Interpretation, expected later this year.

To access the e-permitting program please visit NJDEP’s website.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

Tags: Environmental & Green Issues, Land Use, NJDEP, New Jersey, Permit, Regulations

Posted on April 13, 2011 by Paul M. Hauge

NJDEP Licensing Board Sets April 18 Deadline for Comments on LSRP Audit Process

The Audit Committee of the New Jersey Department of Environmental Protection’s Site Remediation Professional Licensing Board is soliciting comments on its draft process and questionnaire for the completion of statutorily required audits of the work of Licensed Site Remediation Professionals (LSRPs). The Committee is accepting comments until April 18, 2011. The Board intends to finalize the process and questionnaire at its May 2, 2011 meeting.

The New Jersey Site Remediation Reform Act created the Board to oversee the work of LSRPs. Under the statute, each year the Board must audit the submissions and conduct of at least 10% of all LSRPs. The audits will serve as a first step for gathering information on LSRP submissions and on their compliance with the statute’s code of conduct for LSRPs. The draft process and questionnaire can be found on the Board’s website.

Comments should be submitted by 5:00 p.m. on April 18, 2011 via e-mail to karen.hershey@dep.state.nj.us or via mail to:

Site Remediation Professional Licensing Board
c/o New Jersey Department of Environmental Protection/Site Remediation Program
Office of Assistant Commissioner
PO Box 420; Mailcode 401-06
401 East State Street
Trenton, New Jersey 08625-0420
Attn: Audit Committee

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

Tags: Audits, Environmental & Green Issues, LSRPs, NJDEP, New Jersey, SRRA, Site Remediation Program

Posted on March 30, 2011 by Jason R. Tuvel

Proposed Legislation Will Require Shopping Center Developments in NJ to Provide Charging Stations for Electric Vehicles

Photo courtesy of Paul Martin Eldridge - freedigitalphotos.net One of the problems with electric cars (EVs) is - what do you do when the battery runs down? Currently there are 500 charging stations in the United States and 400 of them are in California. In an attempt to address the dead battery problem and encourage purchase of EVs, on March 21, 2011, the New Jersey State Senate introduced Bill S2784 (the “Bill”) which requires owners of shopping center developments to include charging stations. Under the Bill, owners of a “shopping center development” must equip not less than five (5%) percent of the parking spaces for the shopping center development with electric vehicle charging stations. Moreover, such stations must be available for use during the hours of operation of the shopping center development.

The term “shopping center development” is defined by the Bill as “a privately owned and operated commercial development that is or is to be owned and managed as a unit consisting of a building or series of buildings on a common site together with adjacent parking area of no less than 100 parking spaces to which the public is invited.”

The Bill proposes that shopping center owners can recoup “costs of compliance” with the Bill by imposing charges on motorists for EV charging . Therefore, shopping center owners will be required under the Bill to erect signage stating the price per unit of time, unit of voltage, or other measure of usage, as determined by the New Jersey Board of Public Utilities (the “BPU”) to be charged to the motorist for such service. No shopping center owner would be permitted to sell electricity at a price that exceeds the maximum amount per unit set by the BPU. Under the Bill, the BPU is directed to adopt standards for a schedule of prices. A comment period and public hearing on the schedule of prices is required to be held by the BPU before the per unit price is set.

The questions that arise with nearly all new legislation are: (1) when will the law go into effect and (2) who will be required to adhere to the newly promulgated rules and regulations. The Bill as written will contain a four month grace period after its enactment. Therefore, a shopping center constructed prior to the expiration of the grace period will not be obligated to comply with the Bill. The Bill also exempts developers who have filed a site plan application with the applicable municipality prior to the expiration of the grace period. Developers should be aware that the site plan application need only be filed, not approved prior to the expiration of the grace period.

Non-compliance with the Bill will result in penalties to a shopping center owner in an amount of $500 for the first offense and $1000 for all subsequent offenses. The enforcing agency is intended at this time to be the New Jersey Division of Taxation who will have the power to file an action for injunction in the Superior Court to restrain the operations of a shopping center in the event the shopping center owner habitually violates the provisions of the Bill.

The Bill will require developers to evaluate the cost of such “electric vehicle charging stations,” which are defined as an “electric recharging point complete with electric vehicle supply equipment that is capable of providing level 2 charging for plug-in electric motor vehicles,” in connection with their overall budgets for their project. Level 2 equipment which provides charging through a 240 V, AC plug, can take 3 to 8 hours to reach a full charge, adding about 25 miles of range per hour of charging time, depending on the vehicle. Moreover, municipalities, professional planners and land use attorneys may be faced with the issue of whether the Bill impacts municipal parking ordinances and how they are interpreted by local land use boards. For example, if five (5%) of a shopping center’s parking area must be dedicated to EVs, it is conceivable that a municipality may require a developer to provide additional parking spaces for non-electric vehicles to compensate for the lost spaces.

Some other issues that may arise from the Bill are as follows:

Developers will need to account for the charging stations in overall square footage of the property in terms of what can be utilized for retail space versus parking and ancillary uses/structures.
Traffic experts may have to opine before local land use boards with respect to the impact the charging stations will have on trip generation at the property as vehicles that may not have entered the shopping center in the ordinary course may now enter the site for the purpose of charging their vehicle.
The definition of “shopping center development” is fairly vague and simply states that the property be a commercial development with a building or series of buildings with 100 or more parking spaces. Depending on the definition of “commercial development” within a municipality’s zoning ordinance, an argument could be made that the Bill applies to more than just the ordinary retail shopping center, but also to office and/or other commercial developments that normally would not be categorized as a shopping center.

After introduction of the Bill by Senator Linda R. Greenstein (D) of New Jersey Legislative District 14 on March 21, 2011, the Bill was referred to the Senate Environment and Energy Committee. It will be interesting to see if the Bill will move forward as proposed, require amendments, or lack the requisite votes to be passed into law. However, it does seem to be part of a growing “green” trend. Google recently added the location of EV charging stations to its maps and is testing wireless charging stations at its own headquarters in California. The Department of Energy has created a data center on the locations for alternative fuels, including charging stations to serve the plug-in community.

* Photo courtesy of Paul Martin Eldridge - freedigitalphotos.net.

Jason R. Tuvel is an Associate in the Gibbons Real Property & Environmental Department.

Posted on March 23, 2011 by Gibbons P.C.

Proving Liability for Clean-Up Costs - Nexus; Circumstances and Experts - Lessons from Dimant and DVL

On May 18, 2011, the New Jersey Appellate Division upheld a trial court’s decision that the New Jersey Department of Environmental Protection had failed to establish sufficient “nexus” or connection between the operator of a dry cleaner and regional groundwater contamination. In New Jersey Department of Environmental Protection v. Dimant, et al., (Docket A-3180-09T2), the Appellate Division soundly rejected New Jersey’s claim that “the Spill Act must be interpreted and applied very broadly to find that any discharge at any time, even a de minimis one, imposes liability on all operators handling that product, and that a direct causal connection between the discharge and the damages need not be established.” This sort of argument which asks the court to overlook critical connections is all too common in environmental cases. Indeed, governmental plaintiffs often invoke policy reasons when asking for relaxed nexus requirements whereas private parties seeking contribution frequently call on the courts to shift the burden to the alleged dischargers.

However, in Dimant the Appellate Division reminded all potential plaintiffs seeking to impose liability for clean-up costs on former owners or operators that they must meet their burden by coming forward with a preponderance of the evidence sufficient to prove a “nexus” between the defendant and the discharge as well as connecting the damages to the contamination. Although plaintiffs may resort to circumstantial evidence and experts, any break in the chain of connections between a defendant and the discharge or the discharge and the alleged contamination (or the contamination and the plaintiff’s damages) should be fatal after Dimant.

Dimant involved the dry cleaning solvent perchloroethylene (PCE) which had impacted over 350 acres of groundwater in and around Bound Brook. Although there were no less than three dry cleaners in the neighborhood (each of which had several owners and operators), as well as two or three other possible sources of PCE, NJDEP’s investigations eventually focused on only one relatively short term operator of one of the dry cleaners. Using a combination of inspection reports that confirmed the presence of discharge pipes in and around dry cleaning operations, and sampling data, NJDEP’s expert concluded that one particular operator was the “primary source” of the groundwater contamination. However, the trial court took a critical look at the alleged connections between this dry cleaner’s operations and the PCE discharge as well as the nexus between any potential discharge and the probability that it caused such extensive contamination. After a non-jury trial, the court found that NJDEP failed to prove its case primarily because its expert failed to address the presence of older, weathered PCE which pre-dated defendant’s activities. NJDEP’s expert was further faulted for the failure to consider other possible sources of the PCE. Indeed, reading between the lines it appears that NJDEP probably cobbled together sufficient evidence to prove that defendant’s operations resulted in minor discharges into a paved parking area. However, it also appears that NJDEP utterly failed to establish that defendant’s discharge was of sufficient volume or duration to have permeated the pavement and entered the groundwater and then caused the contamination. Thus, the chain of connections between the dry cleaning operations and the contaminated groundwater was broken.

The decision in Dimant considered the Spill Act’s somewhat open ended “in any way responsible” standard for liability. However, the analysis, and especially the court’s reluctance to fill in any gaps connecting the defendant to the discharge, or the discharge to the contamination, is very similar to a recent CERCLA decision from the Northern District of New York. In an unpublished decision in DVL, Inc. v. General Electric (Docket No. 07-cv-1075, N.D.N.Y., December 6, 2010), the Federal District Court granted summary judgment based largely upon a private cost recovery plaintiff’s failure to establish that defendants disposed of PCBs on plaintiff’s property. The District Court acknowledged that CERCLA contains a “relaxed” causation requirement which can be satisfied by circumstantial (as opposed to direct) evidence. Nevertheless, in DVL the District Court found that testimony concerning historical practices at other nearby sites and mere proximity to a manufacturing operation which produced PCBs was insufficient to satisfy plaintiff’s burden of showing that defendants had disposed of PCBs at plaintiff’s site. As in Dimant, there was no doubt that defendant handled the chemical which caused the contamination. Nevertheless, the property owner could not recover because it failed to connect the defendants to the particular PCBs which drove the clean-up of its property.

Dimant and DVL show that defendants - even defendants that produced or handled the toxic chemical at issue - can prevail in clean-up cost recovery litigation. Despite the ambiguous nature of the liability provisions in New Jersey’s Spill Act and the relaxed proofs allowed by CERCLA, a plaintiff seeking to recover clean-up costs must meet its burden by proving causation at each step in the chain between the defendant and the contamination. The “nexus” requirement in both Spill Act and CERCLA require that plaintiffs connect the dots with evidence not mere speculation.

Tags: CERCLA, Environmental & Green Issues, NJDEP, New Jersey, New York, Spill Act, Superfund, Water Pollution

Posted on March 9, 2011 by Susanne Peticolas

New Jersey Department of Environmental Protection Proposes Waiver Rule for Economic Growth

Today, the New Jersey Department of Environmental Protection (NJDEP) published a proposed rule outlining circumstances in which the department would consider a waiver of environmental regulations that stand in the way of economic development. NJDEP will be holding a hearing on the proposed rule on April 14, 2011, at 3:00 pm.

The rule follows the Governor’s “Common Sense Principles” outlined in Executive Order No. 2 which focused on the need to reduce the high costs and regulatory burdens that are thought to impede growth and opportunity in the State of New Jersey.

The proposed rule would allow a waiver application in the following circumstances:

Two or more department rules conflict, or a department rule conflicts with the rule of another State agency or a Federal agency in a way that makes compliance with both impossible or impracticable.
Strict compliance with the rule will be unduly burdensome because it imposes actual, exceptional hardship or excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits.
A waiver could result in a net environmental benefit, for example, using innovative technology or nontraditional methods or materials.
When there is a public emergency declared by a Federal or State official, and waiver would best ensure protection of the public health, safety and welfare, and the environment.

The waiver is not intended to be routine or usual. Moreover, it cannot be inconsistent with NJDEP’s core mission of protecting the State’s natural resources, human health, safety and the environment. Certain rules are not eligible for a waiver under the proposed rule including those implementing certain Federal programs, the air emissions trading program, human health protection standards, endangered species designations, remediation funding sources, licensing or registration requirements, public notice requirements, and department fees or costs.

NJDEP Commissioner Bob Martin praised the proposed rule, stating:

This is an important tool that will benefit the environment and the State’s economy….One size doesn’t always fit all in government. This offers a practical flexibility in allowing us to deal with issues.

NJDEP is accepting comments to the proposed rule through May 6, 2011.

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

Tags: DEP, Development/Redevelopment, Environmental & Green Issues, NJDEP, New Jersey, SRRA

Posted on February 3, 2011 by Gibbons P.C.

NJDEP Site Remediation Implements Steps to Increase Permit Efficiency

One perennial criticism leveled at the Department of Environmental Protection (“NJDEP”) is that it takes too long to issue permits. There have been a long list of initiatives intended to ensure that the NJDEP makes permit decisions which are predictable and timely. Indeed, Commissioner Martin has repeatedly commented on the need to ensure that NJDEP perform efficiently and focus on servicing all stakeholders - including applicants, and included this goal in his 2010 Vision Statement for the department. At long last, NJDEP appears to be taking concrete steps to implement efficiencies in the permit process. On January 27, 2011, NJDEP announced that it would begin to tackle this problem by changing the way it processes the most common land-use permits for contaminated sites and landfill closures.

Effective February 1, 2011, applications for land use permits such as Freshwater Wetlands, Flood Hazard and CAFRA will be processed by a special unit within the Site Remediation Group. The Office of Dredging and Sediment Technology has dealt with many of these issues over the years and will now process all land use permits for remediation projects ranging from site clean-up to landfill closure.

The lack of timely permits can be especially frustrating for potentially responsible parties engaged in the process of site investigation and remediation. When clean-ups involve environmentally sensitive areas such as wetlands, flood hazard areas or riparian lands, companies can be whipsawed between the need to quickly investigate and respond to a perceived threat to human health or the environment and delays while approved clean-up plans undergo environmental permit review.

NJDEP’s announcement promises some relief to this problem. Although this change in procedures is not the “one stop shopping” which the regulated community often seeks, if it proves successful, it can only help speed the pace of clean-ups and may help return distressed real property to productive use.

Tags: Brownfields, Development/Redevelopment, Environmental & Green Issues, ISRA, NJDEP, New Jersey, Permit, SRRA, Spill Act, Tidelands, Wetlands

Posted on January 5, 2011 by Paul M. Hauge

NJDEP Announces Availability of New Forms for Site Remediation Program

On January 13, 2011, the New Jersey Department of Environmental Protection’s Site Remediation Program will release new and updated forms for use by those conducting site investigations and cleanups. The forms -- which already number in the dozens -- must be used when information is submitted to the Program, and were developed pursuant to the requirements of the Site Remediation Reform Act. Interested parties will be able to see the new and updated forms by visiting a dedicated webpage, scrolling down or clicking on “Current Forms,” and noting the version and date for each form.

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

Tags: Environmental & Green Issues, Forms, NJDEP, New Jersey, SRRA, Site Remediation Program

Posted on December 23, 2010 by Paul M. Hauge

NJDEP Seeks Early Input on Revisions to Site Cleanup Rules

The New Jersey Department of Environmental Protection is seeking input from all interested stakeholders as it develops proposed revisions to three separate sets of regulations that govern site cleanups: the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”) rules,which were drafted to implement the Site Remediation Reform Act; the regulations covering cleanups under the Industrial Site Recovery Act (“ISRA”); and the rules for cleanups involving underground storage tanks. NJDEP’s call for public input represents an unusual opportunity to affect the agency’s plans as the proposals are being drafted. Three members of the Gibbons Environmental Team have already published a detailed analysis of important issues raised by NJDEP’s working drafts.

The stakeholder process is designed to incorporate the views and concerns of important segments of the public into the redesign of the regulations to make them consistent with the SRRA-created Licensed Site Remedial Professional (“LSRP”) program by the statutory deadline of May 2012. NJDEP anticipates publishing a formal proposal for revising the regulations in May 2011.

A dedicated page on NJDEP’s website includes links to working drafts of the revisions, as well as instructions on how to submit comments. Comments must be submitted by January 14, 2011 in an e-mail to SRRA@dep.state.nj.us with a subject line that reads “Stakeholder Input.”

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

Tags: ARRCS, Environmental & Green Issues, ISRA, LSRP, NJDEP, New Jersey, Regulations, SRRA

Posted on December 20, 2010 by Gibbons P.C.

USEPA Soliciting Comments on Guidance for Institutional Controls

Institutional controls, regulatory limits on human activity at a site, go by many names. The Department of Defense uses the term “land use controls.” ASTM E2091-00 has elected to use the phase “activity and use limitations.” Traditional real estate lawyers often think in terms of “covenants” or “easements.” Here in New Jersey, the Site Remediation Program uses the term “Deed Notice,” while the Freshwater Wetlands Permit Program has adopted the term “Conservation Restriction or Easement,” N.J.A.C. 7:7A-1.4. Whatever name they go by, institutional controls are intended to regulate human behavior and are used to supplement environmental remediation efforts by reducing the risk of unintended exposure to residual contamination. As a result, institutional controls are critical to the redevelopment of contaminated real estate and cost-effective clean-ups.

There is an ongoing debate over the effectiveness of institutional controls. Regulators, responsible parties and environmental practitioners are increasingly aware of the costs and challenges of using institutional controls. EPA’s Office of Solid Waste and Emergency Response has recently issued a preliminary draft second in what is intended to be a series of guidance documents governing the use institutional controls. EPA is soliciting public comment on this interim guidance document.

EPA’s November 2010 Interim Final Draft is entitled “Institutional Controls: A Guide to Planning, Implementing, Maintaining and Enforcing Institutional Controls at Contaminated Sites.” This document outlines EPA policy regarding institutional controls. The guidance document also presents a discussion of long-term site “stewardship” and enforcement options. EPA, like its state counterparts, is increasing focused on enforcement issues.

EPA is collecting comments on this guidance document. Comments must be received on or before January 14, 2011. Regardless of whether you plan to comment, environmental practitioners who advise clients on redevelopment and clean-up issues should be aware of EPA’s guidance on these issues.

Tags: Brownfields, DEP, Environmental & Green Issues, ISRA, LSRP, NJDEP, New Jersey, Regulations, SRRA, Spill Act, Vapor Intrusion

Posted on December 16, 2010 by Susanne Peticolas

Bears Beware - NJ Approves First Bear Hunt in Five Years

On Monday December 6, 2010, New Jersey’s first black bear hunt in five years opened. It lasted for six days, coinciding with the annual deer hunt. An attempt to enjoin the hunt filed by Animal Protection League of New Jersey, the Bear Education and Resource Group and two individuals was rejected on Friday by the New Jersey Appellate Division in a per curiam decision that found that the appellants failed to meet the legal requisites for a stay. An emergent application to the New Jersey Supreme Court on Saturday also was unsuccessful.

The New Jersey Department of Environmental Protection (“NJDEP”) estimates that the black bear population in northern New Jersey is around 3,400. The hunt was expected to reduce the population by 250-700 animals. On the first day of the hunt, 264 bears were taken, the largest one-day tally in the hunt’s history. By the end of the hunt, 589 bears had been harvested.

NJDEP determined that a controlled hunt was a necessary component of its Comprehensive Black Bear Management Policy, which was developed to manage the bear population and reduce bear-human conflict. According to the Division of Fish and Wildlife, between January 1 and July 20, 2010, bears have been responsible for one attack on a person, three unprovoked attacks on dogs, 26 livestock kills, 23 attempted home entries, 27 successful home entries, 3 vehicle entries, 74 vehicle strikes, 13 aggressive behavior incidents, 526 nuisance incidents and 301 garbage raids, as well as 548 sightings. In addition to a controlled hunt, the Policy incorporates education, the continuation of ongoing research and population monitoring, appropriate non-lethal control measures, and investigation of all viable population control methods.

In upholding NJDEP’s decision to allow the hunt, the Appellate Division used the familiar language of deference to an expert agency, stating, “We will affirm the decision of the DEP if it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result.” The Court also noted that a strong presumption of reasonableness attaches to agency action, reflecting the recognition that agencies have “the specialized expertise necessary to enact regulations dealing with technical matters ...”

Under this legal standard, those opposing the hunt faced an uphill battle. Thus, even though the opponents presented expert evidence claiming flaws in NJDEP’s data, and in the agency’s interpretation of its data, the court could point to NJDEP’s own experts, and its own “significant scientific investigation and research” on the issue. With experts and evidence on both sides, the law gives the agency an advantage, and, in the words of the court, “simply disagreeing, even if based on contrary expert opinions, is insufficient to overcome the presumption of reasonableness ascribed to the Commissioner’s finding.”

The hill was made even steeper by the requirements for a stay, such as a showing of irreparable harm. The Appellate Division acknowledged that the killing of a bear is irreversible, but cited case law requiring a showing of irreparable harm to the species, rather than individual animals -- a showing that the opponents were unable to make.

Despite its often-emotional overtones, then, the debate over the need for, and the appropriateness of, bear hunting in New Jersey resembles that over any number of environmental issues. Once the agency has made a reasoned determination, the courts are unlikely to second-guess its decision. Opponents may need to carry their argument to the Legislature.

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

Tags: Environmental & Green Issues, NJ Division of Fish and Wildlife, NJDEP, New Jersey, Subdivision

Posted on November 9, 2010 by Susanne Peticolas

What is NJ's LSRP?

After over a year since its creation, the nature of New Jersey’s Licensed Site Remediation Professional (LSRP) is still unclear. The program, signed into law in May 2009, removes the responsibility for oversight of clean-ups of contaminated sites from the New Jersey Department of Environmental Protection (NJDEP) to a cadre of licensed privately paid professionals. NJDEP will retain direct oversight of more complex sites and will resume direct oversight of LSRP sites under certain circumstances. It will take some time for the kinks in the program to be worked out. Depending on who you speak to, the view of what the LSRP is differs.

When the idea was first proposed, the environmental groups were convinced that the LSRP would be the proverbial “fox in the henhouse.” The concern was based on the fact that the LSRP is selected and paid by the responsible party - the polluter - in the view of these groups. The LSRP decides what needs to be done, how to do it, how much money will be needed to assure the clean-up and when the clean-up is finished. The final “sign off,” the Response Action Outcome (“RAO”) is issued by the LSRP. The RAO gives the responsible party a covenant not to sue by the NJDEP with respect to the property which was remediated.

In December of 2009, Jeff Tittel, Executive Director of New Jersey Sierra Club complained, “The LSRP program is much worse than the fox guarding the henhouse. It’s the fox building the henhouse and certifying that it’s safe.”

NJDEP would like the LSRP to be a deputized case manager, an environmental watchdog. NJDEP needed the program because of the extensive backlog of cases and timelines of cleanup running into years. NJDEP simply did not have the manpower to handle all of the cases. Under the program, the LSRP is not free to do what s/he pleases. A remediation of a site in the LSRP program is subject to mandatory deadlines, which recently had to be extended and the LSRP must adhere to detailed technical regulations, use presumptive remedies and follow any available and appropriate technical guidelines issued by the department. The work and the RAO are subject to audit by NJDEP for three years. The LSRP’s highest priority in his or her professional performance is the protection of public health and safety and the environment. In NJDEP’s view, apparently, the LSRP should be the environment’s loyal and dutiful guard dog.

To ensure that the highest priority is respected, the LSRP will be licensed by a professional board that has extensive authority over the LSRP, including issuing standards for professional conduct, investigating complaints, imposing discipline and maintaining lists of LSRP’s in good standing and suspended professionals. The board may revoke licenses and impose civil penalties and petition the attorney general to bring a criminal action against an LSRP.

The responsible party has a different perspective. In the past, an environmental consultant was a knowledgeable and trusted advisor. Their role included acting as the responsible party’s advocate in the face of what often seemed like excessive sampling demands and overly expensive remedies required by NJDEP. Under the LSRP program, this relationship has changed significantly. LSRP’s highest priority is not service to the client, but protection of public health and the environment. The statute imposes a duty on the LSRP to report any action or decision of the client that results in a deviation from the remedial action workplan or other report, a duty to report any discharge he sees on a site he is responsible for, and a duty to report an immediate environmental concern even for sites s/he is not responsible for. All information and documents reviewed and relied on in connection with the remediation must be disclosed to NJDEP. Moreover, the LSRP has a responsibility to make a good faith and reasonable effort to to obtain relevant facts, data, reports and other information in possession of the owner or otherwise available. Although the statue provides for protecting “confidential information” designated so in writing by the client, it is unclear whether the reporting requirement would trump that confidence. Among the responsible party group, there is a concern that the role prescribed for the LSRP by the statute and regulations is that of the rat.

And what of the LSRP’s perspective? In the face of the statutory requirements, licensing and prescriptive tech regulations, as well as scrutiny from NJDEP and a licensing board, the LSRP also finds himself on the front lines of liability. In the past, all remediation decisions had to be approved by NJDEP. If something went wrong down the line, as long as the consultant had done the work correctly, an error in where sampling took place or a remedy failure, wasn’t the consultant’s fault….the decision had been NJDEP’s. That “shield” is no longer there. All of the relevant decisions will now be made by the LSRP. Moreover, unlike other professionals, the LSRP does not have the protection of the affidavit of merit. Little wonder some of the LSRPs worry that they will end up as scapegoats, with everyone blaming them.

Only time will tell what the ultimate role of the LSRP will be. And since the use of an LSRP will be mandatory for most remediations in N.J. on or after May 7, 2012, that time is coming soon.

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

Tags: Brownfields, Environmental & Green Issues, ISRA, LSRP, NJDEP, New Jersey, SRRA, Spill Act

Posted on October 22, 2010 by Paul M. Hauge

Inside NJDEP: Agency Releases "Transformation Plan," Posts Employee Complaints and Suggestions

How can the New Jersey Department of Environmental Protection (NJDEP) be improved? The agency released two different perspectives on that question over the past few weeks: a “top-down” view in the form of a “Transformation Plan” for reforming NJDEP, and a “bottom-up” view in the form of a compilation of hundreds of complaints and suggestions from NJDEP employees.

The NJDEP Transformation Plan released on October 7 announces the agency’s commitment to “making fundamental changes in how we function and in how we think about what we do daily.” Drawing on NJDEP’s new Vision Statement and a set of agency-wide priorities established by Commissioner Bob Martin, the Transformation Plan sets forth an ambitious program for changing both how NJDEP does its job -- changing its “business processes,” in the words of the plan -- and the substance of its policies. Underlying all three documents is a belief that environmental protection and economic growth can and must go hand in hand. Indeed, among the four “mission critical” priorities for NJDEP, the Transformation Plan lists “[s]upporting economic development of the State’s economy.”

Less sweeping in its verbiage but equally revealing about the agency is a set of over 700 complaints and suggestions from NJDEP employees released on October 14. The compilation, arranged by program area, ranges from the mundane (problems with telephones) to the far-reaching (frustration with enforcement policies). The survey provides an interesting glimpse into the internal workings of NJDEP at the staff level, where any agency-wide transformation would have to take root. The administration’s decision to make the compilation public may be an effort to show the public that support for changing NJDEP is not limited to management or political appointees but is shared by the rank and file.

Complaints, both internal and external, about how NJDEP operates, as well as promises from incoming administrations to remake the agency, have been part of the landscape at NJDEP practically since its creation in 1970. And large bureaucracies can be very difficult to change, never mind “transform.” But Commissioner Martin has made it clear that he is not interested in “business as usual: at NJDEP. All segments of the public will be watching his efforts with interest.

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

Tags: Environmental & Green Issues, NJDEP, New Jersey, Regulations, Transformation Plan

Posted on October 18, 2010 by Gibbons P.C.

Irv Freilich and Susanne Peticolas to Speak on New Jersey's LSRP Program at ABA Regional CLE Workshop

Irv Freilich and Susanne Peticolas, Directors in Gibbons Real Property & Environmental Department, will be panelists at ABA’s upcoming Regional CLE Workshop on October 27, 2010, titled "The Road Ahead: The Obstacles and Pitfalls to New Jersey’s Implementation of the LSRP Program" at Seton Hall Law School. For more information or to register for the program, click here.

The program will feature interactive panels composed of nationally known environmental lawyers, in-house counsel and consultants who will discuss the details and implications of New Jersey’s Site Remediation Reform Act (SRRA), and in particular the newly minted Licensed Site Remediation Professional (LSRP) program. The impact of the LSRP program on environmental practitioners will be far reaching and extraordinary. From the manner in which environmental consultants will be retained and site investigations and clean-ups accomplished, to the ethical, work product and litigation considerations counsel will need to evaluate and address, the LSRP Program represents a sea-change in the way environmental counsel will practice their trade in the years to come.

The program has already dramatically changed the relationship between the environmental consultant and the client and raised the specter of frivolous suits from disgruntled clients. In addition, NJ Department of Environmental Protection has had to propose revisions to the SRRA interim rules relaxing certain remediation deadlines. These developments highlight the complex issues presented by the transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by LSRPs and underscore the need to keep abreast of a rapidly developing area.

Tags: Brownfields, DEP, Environmental & Green Issues, ISRA, LSRP, NJDEP, Regulations, SRRA, Spill Act, Vapor Intrusion

Posted on October 7, 2010 by Gibbons P.C.

NJDEP Proposes Relief From Site Remediation Reform Act Requirements

On October 4, 2010, the New Jersey Department of Environmental Protection (NJDEP) formally proposed revisions to the Site Remediation Reform Act’s (SRRA) interim rules. The revisions impact two important components of the interim rules: remediation deadlines and vapor intrusion investigations. These technical amendments are based upon stakeholder input and are intended to reduce the burden on the regulated community and New Jersey’s newly minted Licensed Site Remediation Professionals (LSRPs). The rule proposal appeared in the New Jersey Register on October 4, 2010 and can be viewed online. Comments can be submitted until December 3, 2010.

When adopting the SRRA, the New Jersey Legislature created a special enforcement mechanism called “direct oversight.” When a site, phase of the clean-up process or condition at the site warrants “direct oversight,” all of the key decisions - especially remedy selection - are made by NJDEP. In direct oversight the responsible party simply pays the bills - NJDEP makes the decisions. The SRRA also provides that when the responsible party misses a remediation milestone, then NJDEP must exercise direct oversight. N.J.S.A. 58:10C-27.

NJDEP’s pending rule proposal relaxes three important remediation milestones established by the interim rules. N.J.A.C. 7:26C-3.3.:

the deadline for submitting preliminary assessment reports,
the deadline for immediate environmental concern source control,
and the deadline for installing free product removal technology at sites containing non-aqueous phase liquids, (generally to March 1, 2011 at the earliest).

The proposed rule is designed to reduce the risk of triggering mandatory direct oversight because of insufficient time to meet prescribed deadlines.

The second part of the proposed rule amends NJDEP’s long-standing Vapor Intrusion Program. The proposed rule establishes a new class of vapor intrusion investigations (called “Vapor Concern Cases”) and adjusts the way indoor air screening levels are applied as well as certain deadlines for action to respond to vapor intrusion. The vapor intrusion rules remain complex and cumbersome. Nevertheless, these amendments can provide additional time to evaluate the situation and implement mitigation.

These proposed new rules underscore the complex issues presented by the transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by LSRPs. The regulated community should support these rules as well as NJDEP’s general efforts to respond to stakeholder comments. All parties must be mindful that the interim package of SRRA regulations -- adopted on an emergency basis in November 2009 -- expire on May 4, 2011. The real action will happen in the coming months when the permanent SRRA rule proposal hits the streets.

Tags: Brownfields, DEP, Environmental & Green Issues, ISRA, LSRP, NJDEP, New Jersey, Regulations, SRRA, Spill Act, Vapor Intrusion

Posted on September 22, 2010 by David A. Brooks

The Lighter Side of LSRP: Opportunity to Reduce Remediation Funding Source in New Jersey

With the advent of New Jersey’s LSRP program comes an added financial benefit for environmental remediation matters requiring a remediation funding source (“RFS”). There is an opportunity to save on the statutory annual 1% surcharge on an RFS, especially useful for those sites subject to the requirements of the Industrial Site Recovery Act.

Among the new remediation requirements in the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C (“ARRCS”) is an annual remediation cost review to be submitted to the NJDEP on a Remediation Cost Review Form. N.J.A.C. 7:26C-5.10. For new sites subject to the LSRP program and for older sites that have opted-in to the LSRP program, the form must be certified by the site’s LSRP.

Based on the revised cost of the remediation developed in conjunction with the annual review (though this can also be done at other times as well), the person required to establish it, may reduce the amount of the RFS upon submission of the remediation cost review form to the NJDEP. N.J.A.C. 7:26C-5.11. So long as its certified by the LSRP, there is no need to obtain NJDEP approval of an RFS reduction. Of course, such a reduction is ultimately subject to the NJDEP’s broad rights of review of all documents and submissions. N.J.S.A. 58:10C-21. Thus, if the RFS is reduced by the LSRP, then, the 1% RFS surcharge required by 7:26C-5.9 will accordingly be reduced. In addition, to the extent the cost of the RFS itself is driven by the amount (such as with letters of credit), there will be further cost savings. For those sites subject to an ISRA Remediation Agreement with high initial remediation cost estimates that have not been reviewed recently, there may be an opportunity for a substantial cost savings.

For those sites with a remediation trust fund as an RFS, the NJDEP is currently developing a new form of trust agreement to replace the current form which continues to require NJDEP approval for reductions and withdrawals.

Please note that by using a self guarantee as a RFS, a responsible party can continue to avoid the 1% surcharge altogether. See N.J.A.C. 7:26C-5.9.

David A. Brooks is an Associate in the Real Property & Environmental Department.

Tags: Environmental & Green Issues, ISRA, LSRP, NJDEP, New Jersey, Remediation, SRRA

Posted on August 11, 2010 by Paul M. Hauge

Yes, Building in the Highlands Preservation Area is Possible: Court Upholds NJDEP Exemption for Church Project as "Reconstruction" Within "Footprint" of Previous Development

New Jersey’s Highlands Water Protection and Planning Act (Highlands Act), which created and granted substantial powers to a regional Council, has engendered significant controversy, especially with respect to the strict development restrictions it imposes within a statutorily defined preservation area. Certain redevelopment projects, however, are exempt from those restrictions, and a recent Appellate Division upheld the New Jersey Department of Environmental Protection’s (NJDEP) interpretation of key statutory provisions when it determined that a multi-purpose redevelopment project qualified for such an exemption.

Since its enactment in 2004, the Highlands Act has spawned a number of judicial opinions regarding its constitutionality, its retroactivity, and the validity of certain implementation regulations promulgated by NJDEP. (One such case is the subject of a recent post by Gibbons attorney Christina Fullam.)

In In re August 16, 2007 Determination of NJDEP of Exemption, the Appellate Division reviewed NJDEP’s decision to grant Christ Church an exemption from the statute for a project on a 100-acre lot in Rockaway Township that was already the site of office and industrial buildings constructed by a previous owner in the 1990s. The exemption application required NJDEP to determine whether the project qualified for the exemption as a “reconstruction” project that was within 125% of the existing “footprint” of “lawfully existing impervious surfaces” and did not increase that impervious surface by one-quarter acre or more.

NJDEP found that the project satisfied the statutory criteria, and the Township appealed. Applying a doubly deferential standard of review -- because it was reviewing both a final agency determination and an agency’s interpretation of a statute that it is charged with enforcing -- the court upheld NJDEP’s determinations on all three issues:

Carefully reviewing the details of the project, the Appellate Division had no trouble upholding, as based on a permissible construction of the statute, NJDEP’s determination that the project was a “reconstruction of any building or structure for any reason.”
Similarly, the court upheld the agency’s reading of the term “footprint” as meaning the area covered by all impervious surfaces, rejecting the Township’s argument that the court should look for guidance to NJDEP’s coastal permitting rules, which define “footprint” in terms of structures only.
Finally, the court upheld the formula chosen by NJDEP to decide whether the 125% threshold had been exceeded, and the agency’s decision to consider as part of the site’s “lawfully existing impervious surfaces” 20 acres of wetlands that had been filled without a permit in the 1980s because no citation had ever been issued and the fill had later been mitigated and deemed acceptable by the Army Corps of Engineers.

The court added an important suggestion that may have significant implications for future projects: NJDEP should promulgate regulations that define “reconstruction” and “footprint” (and, presumably, other key terms that are not specifically defined in the statute), to “avoid the ambiguity we confronted in deciding this case.” The court concluded,

Such regulations would not only assist future applicants but would prevent judicial review from being dependent on the unique facts presented. The existing regulatory void carries an undue propensity for ad hoc adjudication.

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

Tags: Christ Church, Development/Redevelopment, Highlands, Land Use, NJDEP, New Jersey, Rockaway, Zoning & Permitting

Posted on August 9, 2010 by Gibbons P.C.

Stunted Growth: U.S. Supreme Court Declines Review of Challenge to the New Jersey Highlands Act

The Supreme Court of the United States recently declined to review a multi-plaintiff citizen challenge to the New Jersey Highlands Water Protection and Planning Act. The case, Shope v. State, which has been floating through the New Jersey court system since April 2007, finally met its end when the Supreme Court denied the petition for certiorari on June 28, 2010.

At the trial level, the plaintiffs based their challenge on the following constitutional grounds:

the development restrictions and preservation area boundaries set forth in the statute violated the property owners’ equal protection rights.
the program initiated to transfer owners’ development rights did not adequately compensate the property owners in the Highlands conservation area.

The New Jersey courts rejected these arguments. In their petition for certiorari, Shope and his co-plaintiffs highlighted this last argument, stating that the Act resulted in a taking of their properties without just compensation, in violation of their Fifth and Fourteenth Amendment rights.

The Act, which was intended to protect the water supplies of much of northern New Jersey by placing restrictions of development in the northwestern Highlands Region, has faced opposition from property owners and developers alike. Many of the challenges to the Act have mirrored the claims brought by David Shope and his co-plaintiffs.

While the hotbed of controversy over the Act has diminished in the wake of declining property values in the current economic climate, the opposition could reignite when the economy rebounds and the economic stakes rise. Moreover, there may be a new line of “judicial takings” cases to rely on in the wake of the U.S. Supreme Court’s decision in Stop the Beach Nourishment.

Christina C. Fullam is an Associate in the Gibbons Real Property and Environmental Department.

Tags: Development/Redevelopment, Eminent Domain, Highlands, Land Use, NJDEP, New Jersey

Posted on August 4, 2010 by Jason R. Tuvel

Want to Expedite Your Real Estate Development Approvals in New Jersey? Want to Get Your Building Permit as Soon as Possible? Did You Know About This Regulation?

In New Jersey, it is very typical for a municipality’s building department to refuse to accept a developer’s construction drawings until the developer has received all of its local, county, state, and other applicable agency approvals (e.g. site plan approval, an NJDEP permit; or an NJDOT permit). This should not be happening.

In 2009, the section of the Uniform Construction Code dealing with plan review was amended to state:

[i]f required State, county, or local prior approvals have not been granted, plan review shall proceed provided that the application for permit is otherwise complete and the plan review fee has been paid. No permit shall be issued until all State, county and local approvals are in place.

There is an exception for owner-occupied one and two family home additions or alterations, which must have zoning approval before plan review can proceed.

Some of the positive impacts of this amendment to the NJ Uniform Construction Code (some of which are noted by the Department of Community Affairs) are:

1. Developers will be able to determine earlier in the process whether or not there construction drawings need to be revised;

2. If revisions to construction drawings are required, they can be addressed concurrently while other land use approvals are pending; and

3. Developers can save time and expedite the building permit process, which may also lead to cost savings by developers and property owners as their project may start generating revenue sooner.

Next time a building department refuses to review your plans because you have outstanding approvals on the local, county or State levels, make sure you let them know that they are obligated to do so under the New Jersey Uniform Construction Code.

Jason R. Tuvel is an Associate in the Gibbons Real Property and Environmental Department.

Posted on August 2, 2010 by David A. Brooks

NJ LSRPs Open to Frivolous Claims

Despite the new licensing program for environmental consultants in New Jersey, they still remain open to professional tort claims without the necessity of an affidavit of merit. As required by N.J.S.A. 2A:53A-27, a plaintiff making a claim for malpractice or negligence against a “licensed person” must provide an, “affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.”

Fifteen different types of “licensed persons” are subject to this requirement. N.J.S.A. 2A:53A-26. However, “licensed person” does not include “environmental consultants” broadly, though environmental engineers, licensed pursuant to N.J.S.A. 45:8-27, do fall within the definition of “licensed persons.” Those environmental consultants who are geologists by education and training and/or in the past, licensed pursuant to the requirements of the Underground Storage Tank Certification Program, N.J.S.A. 58:10A-24.1-8, are not included within the definition of “licensed person.”

In establishing Licensed Site Remediation Professionals (“LSRP”) in the Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq., the legislature did not add LSRP’s to the definition of “Licensed Person” for purposes of compliance with New Jersey’s affidavit of merit statute. Perhaps the issue is the mandate of the LSRP to, first and foremost, protect the “public health and safety and the environment,” N.J.S.A. 58:10C-16, as opposed to first serving the interest of their clients, though requiring an affidavit of merit does not appear to be inconsistent with such broad goals. In any event, LSRP’s must be aware that this new license alone does not appear to afford them the potential protections from frivolous law suits afforded by the affidavit of merit statute.

David A. Brooks is an Associate in the Gibbons Real Property and Environmental Department.

Tags: Environmental & Green Issues, LSRP, NJDEP, New Jersey, Remediation, SRRA

Posted on July 29, 2010 by Gibbons P.C.

NJDEP and the Terrible, Horrible, No Good, Very Bad Day - Trial Judge Rejects NJDEP's Approach to Natural Resource Damages

New Jersey’s Natural Resource Damage (“NRD”) program is cobbled together from an aging policy directive issued in 2003, an Appellate Division decision, NJDEP v. Exxon Mobil Corporation, [393 N.J. Super 388 (App. Div. 2007)] and a handful of lower court rulings on various and sundry motions. There is no specific enabling statute and the agency has never adopted any formal regulations. In short, it’s the type of program which is bound to leave the regulators, the regulated community (and the lawyers who advise them) with plenty of questions. Because there are no clear rules, New Jersey’s NRD program has generated a significant amount of litigation.

A July 26, 2010 ruling issued by the Middlesex County Superior Court following a ten day trial indicates that New Jersey’s approach to NRDs might be in for some careful scrutiny. Of course, a trial court’s findings have limited value as precedent. Nevertheless, the recent ruling in NJ Dept. of Environ. Protection v. Essex Chemical can only be viewed as a disaster for the present ad hoc approach to NRDs favored by the New Jersey Department of Environmental Protection.

In this case, New Jersey’s experts were left without the presumption that usually flows from following duly promulgated rules. Without this presumption New Jersey’s experts were unable to meet their burden and the plaintiff simply failed to prove its case. This is the second time New Jersey has stumbled at the expert proof phase of an NRD case. It is especially noteworthy that the trial judge rejected a modified Resource Equivalency Analysis proposed by New Jersey’s experts. New Jersey is attempting to use this novel method in several other cases and the state may now be forced to change course.

New Jersey’s NRD program is both novel and evolving. So it is hardly surprising that when issues come before the courts, the state and its experts will have good days and bad days. They recently had a very bad day.

Tags: Environmental & Green Issues, NJDEP, Natural Resource Damages, New Jersey, Spill Act

Posted on July 26, 2010 by Nancy A. Lottinville

New Jersey Proposes Addition of Solar Power Facilities to its Green Initiative

Solar and Wind Energy Generation facilities may soon join the category of uses designated as permitted of right by New Jersey statute rather than by individual municipal ordinance, thus preempting municipal zoning powers granted under the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (MLUL).

Identical Bills, Senate S2126 and Assembly A3139 are pending before their respective house of the New Jersey’s legislature and would amend the MLUL to provide that Solar and or Wind Energy Generation Facilities, when installed on the sites of former landfills, quarries and other extractive industries, are permitted uses. This status would be equally applicable to both public and private sites where landfills, quarries or other extractive industries are closed or closing.

Environmentally sensitive areas remain subject to regulation. Although the Bills specifically permit Solar Facilities in the environmentally sensitive Pinelands Region, per the amendment that cleared the Senate Environment and Energy Committee on July 16, 2010, Wind Generation would not be permitted in the Pinelands. Both Solar and Wind Generation Facilities are permitted in landfills and quarries located elsewhere in the State. Notably, the Bills do not regulate height or size of the Solar or Wind Generation equipment, and size or bulk standards are presumably left to municipal zoning ordinance control.

These Bills would allow such unattractive sites as former landfills be put to productive use and encourage the growth of alternative energy sources in the state. This would be particularly welcome in the Pinelands where it is estimated there are 80 old landfills in towns which do not have the money to properly cap them. Under the proposed Bills, these towns would be able to obtain needed revenues from solar energy developers.

Nancy A. Lottinville is Counsel to the Gibbons Real Property & Environmental Department.

Tags: Climate Change, DEP, Development/Redevelopment, Environmental & Green Issues, MLUL, Municipal, Municipal Land Use Law, NJDEP, New Jersey, Pinelands, Regulations, Renewable Energy, Solar, Sustainability, Transactional Real Estate & Leasing

Posted on July 15, 2010 by Gibbons P.C.

Gulf Coast Spill Impacts Legislation in Trenton, NJ

This summer, the long shadow cast by the oil rig blow-out in the Gulf of Mexico seems to be everywhere. For example, we recently reported that EPA has written to Congress endorsing the concept of reinstating the Superfund tax which expired back in 1995. Thus, it was only a matter of time before New Jersey got into the act.

On July 15, 2010, the Senate Environment and Energy Committee in Trenton took up S-2108. If adopted in its present form this bill would raise the limit on liability pursuant to the New Jersey Spill Compensation and Control Act from $50 million to $1 billion.

It is easy to question the necessity of increasing the limit on Spill Act liability. After all, the Spill Fund is used primarily to address contamination from land based facilities. If New Jersey were to experience an event where the total damages could exceed $50 million there is already overlapping state and federal authority under CERCLA, RCRA and the Oil Pollution Act of 1990.

It remains to be seen whether this sort of legislative reaction to a long hot summer of bad news from the Gulf will resonate with the new business friendly administration in Trenton. But it is already clear that the events in the Gulf have reached Trenton.

*Photo courtesy of EPA.

Tags: Environmental & Green Issues, NJDEP, New Jersey, Remediation, SRRA

Posted on June 28, 2010 by Gibbons P.C.

Site Remediation Process - NJ to Develop Remedial Priority System

New Jersey is pressing forward with its efforts to privatize the site remediation process. Since adoption of the Site Remediation Reform Act (SRRA) in May 2009, there has been a steady stream of new regulations, new guidance documents and revised forms. Because of these changes, practitioners must constantly check the New Jersey Department of Environmental Protection’s website.

As part of the SRRA, the Legislature directed NJDEP to develop a remedial priority system. This system will combine readily available information about site specific characteristics and contamination with public data about receptors to develop a risk index. (This process should sound familiar to anyone who has worked with EPA’s Hazard Ranking System outlined in its complex Final Rule.)

The remedial priority system will dictate how NJDEP allocates its scarce resources when performing remediation outside the private Licensed Site Remediation Professional program. In addition, the priority system will impact which sites find their way into the direct oversight program.

NJDEP is forming a task force of interested parties to work on the remedial priority system. Nominations closed on June 18, 2010. Additional information is available about the mission of this novel task force at the Site Remediation Program’s website.

Tags: Environmental & Green Issues, NJDEP, New Jersey, Remediation, SRRA

Posted on January 28, 2010 by Paul M. Hauge

Determining What Standards Apply to Your Site Just Got Easier

Without changing a single standard, NJDEP may have made it easier to comply with its many surface water, groundwater, drinking water, and soil remediation standards by compiling a useful on-line compendium of selected environmental standards. Standards can change, though, so the prudent developer, consultant, or attorney will check the New Jersey Administrative Code before making any decisions.

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

Tags: Environmental & Green Issues, NJDEP, New Jersey, Remediation

Posted on January 27, 2010 by Paul M. Hauge

Keeping Up With SRRA Developments

The passage in 2009 of the Site Remediation Reform Act (SRRA) introduced a great deal of uncertainty into the site cleanup process. The procedures, paperwork, and terminology of the site cleanup process have changed. NJDEP has developed a web page to help the public to stay abreast of all SRRA developments, including information such as the new Administrative Requirements for the Remediation of Contaminated Sites (ARRCS Rules).

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

Tags: Environmental & Green Issues, NJDEP, Remediation, SRRA

Posted on January 26, 2010 by Gibbons P.C.

Governor Christie's Department of Environmental Protection Transition Subcommittee Issued Final Report

Governor Christie's Department of Environmental Protection Transition Subcommittee issued its Final Report on January 15, 2010. The Report calls for significant changes in policies and practices in order to meet three overarching goals: "1) accelerate improvements to the environment, 2) remove unnecessary obstacles to economic growth and 3) more effectively manage limited fiscal and human resources." In order to meet these goals, the report recommends establishing clear department goals and performance metrics; reforming the regulatory regime to ensure legal compliance, scientific support and consideration of economic impact; streamlining the permitting process for land use; continuing advances initiated by the Site Remediation Reform Act; and establishing a comprehensive and stratgic approach toward natural resource stewardship. The report made other recommendations related to enforcement policies, regulations, promotion of "green" projects and budget and operations. Woven among a number of recommendations is a call for improvements in technology to facilitate transparency and efficiency.

The recommendations are ambitious, calling for redesigning the NJDEP in a way that will attract business investment, while improving and protecting human health and New Jersey's environment.

Content for this blog post is authored by the Gibbons Real Property & Environmental Department.

Tags: Chris Christie, Environmental & Green Issues, NJDEP, New Jersey