Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

Tag Archives: NJDEP

No Further Extensions of New Jersey’s Permit Extension Act

Posted in Development/Redevelopment
The state legislature took no action to further extend New Jersey’s Permit Extension Act (“PEA”) during the recently concluded legislative session, which means that permits and approvals extended by the PEA’s tolling period either have expired or will expire soon. Pursuant to the terms of the act, the expiration date for most approvals covered by the PEA are tolled through June 30, 2016, with certain approvals expiring before that date, making right now the time to evaluate projects approaching construction to determine which existing approvals were extended by the PEA, the exact expiration date of such approvals, and whether further extensions are available under other laws. After such an evaluation, developers and project managers can then determine whether approval rights can be fully vested prior to their expiration date and, if not, whether an extension, amendment, or renewal of the approval is required.… Continue Reading

NJ Legislature Considers Invalidating NJDEP Regulations

Posted in Environmental & Green Issues
On June 1, 2015, after significant outreach to the relevant stakeholders, the New Jersey Department of Environmental Protection (NJDEP) released for public comment sweeping proposed changes to the rules governing Coastal Zone Management (CZM), N.J.A.C. 7:7E-1.1 et seq., Stormwater Management (SWM), N.J.A.C. 7:8-1.1 et seq., and the Flood Hazard Area Control Act (FHACA), N.J.A.C. 7:13-1.1 et seq. However, the New Jersey Legislature is poised to use its constitutional authority to find that the proposed regulations are inconsistent with the legislative intent of the enabling statutes.… Continue Reading

No Safe Harbor: State Can Face Liability Under Spill Act

Posted in Environmental & Green Issues
Be careful what you wish for. That may be the message of the Appellate Division’s September 23 opinion in NL Industries, Inc. v. State of New Jersey, No. A-0869-14T3. Affirming a “thoughtful and erudite” 2014 Law Division opinion by Judge Douglas K. Wolfson, the appellate court held that the onerous liability regime of the 1976 Spill Compensation and Control Act (commonly known as the Spill Act), which imposes strict, joint, and several liability for cleanups on both the dischargers of hazardous substances and on the much broader class of parties “in any way responsible” for the hazardous substances, is equally applicable to the State. As a result, the State may be responsible for a portion of the remediation of a contaminated site on the shoreline of Raritan Bay that will likely cost more than $75 million.… Continue Reading

NJDEP Document Review Process Curtailed: More Autonomy for LSRPs

Posted in Development/Redevelopment, Environmental & Green Issues
Unable to keep up with submittals from Licensed Site Remediation Professionals (LSRP) and with the resulting increase in review times, the New Jersey Department of Environmental Protection (NJDEP) has recently decided to defer the review of non-Response Action Outcome (RAO) documents until an RAO is submitted. This announcement comes four years into the LSRP program, which as designed, has begun to eliminate the backlog of contaminated sites awaiting attention. However, the very success of the LSRP program has created its own backlog as NJDEP finds itself falling behind in review of submittals.… Continue Reading

NJDEP Clarifies Obligation to Remediate Contamination from Historic Pesticide Use

Posted in Development/Redevelopment
The New Jersey Department of Environmental Protection has more formally confirmed the scope of the responsibility to address historic pesticide use on commercial and industrial properties: namely that a party need not remediate historic pesticide use unless there is a land use change to residences, schools, child care centers and playgrounds. On June 20, 2014, the NJDEP published an additional notice for Response Action Outcomes, the written determination by a Licensed Site Remediation Professional that a remediation is complete, which specifically permits completion of a remediation without investigation of contamination from historic pesticide use. The notice would only apply to contamination from the application of such pesticides to, for example, a former orchard or farm, but not contamination from a discharge caused by the mixing, manufacturing or other handling of such chemicals. NJDEP approval is not required for an LSRP to use this notice.… Continue Reading

New Jersey Department of Environmental Protection Proposes New Rules Aimed at Streamlining Coastal Permitting Process

Posted in Environmental & Green Issues
On June 10, 2014, the New Jersey Department of Environmental Protection (“DEP”) introduced a series of proposed technical revisions to land use rules -- via a 1,055 page proposal -- designed to encourage redevelopment in coastal areas decimated by Hurricane Sandy. DEP Commissioner Bob Martin -- who also served on Governor Christie’s Red Tape Review Commission, which was launched in 2011 to streamline regulatory processes across state government -- explained that “[t]hese revisions will add clarity to our regulatory processes and provide better predictability in the regulatory process.”… Continue Reading

Susanne Peticolas Authors Section on Bankruptcy for NJ Environmental Law Handbook

Posted in Development/Redevelopment, Environmental & Green Issues
Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, contributed a section on environmental issues in bankruptcy to the 8th edition of the New Jersey Environmental Law Handbook. Her section discusses the issues created by the conflicting policies underlying bankruptcy law, focusing on a fresh start for the debtor, as well as environmental law, which focuses on making the polluter pay. The section covers a wide range of relevant topics, including which environmental claims are bankruptcy “claims,” how environmental claims are impacted by the automatic stay, the identity of the claim holder, and the relief that is being sought.… Continue Reading

Remedial Investigation Extension Application Deadline Further Extended to March 21, 2014 by NJDEP

Posted in Environmental & Green Issues
The New Jersey Department of Environmental Protection (“NJDEP”) has announced that it will continue to accept applications for the two year extension from the May 7, 2014, deadline to complete remedial investigations until March 21, 2014, due to the high number of weather-related statewide closings. Originally, applications had to be filed with NJDEP by March 7, 2014. … Continue Reading

Remedial Investigation Deadline Extended to May 7, 2016 if Conditions Met

Posted in Environmental & Green Issues
A number of Responsible Parties are breathing a sigh of relief. On January 21, 2014, Governor Christie signed legislation authorizing a two year extension for Responsible Parties to complete their remedial investigations before risking being placed under direct oversight of the New Jersey Department of Environmental Protection (NJDEP). The deadline has been extended from May 14, 2014, to May 7, 2016, under certain circumstances. Pursuant to the Site Remediation Reform Act (SRRA), the deadline applies to all site investigations or preliminary assessments that are being conducted to address discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999.… Continue Reading

Funding Available for Site Remediation in New Jersey

Posted in Development/Redevelopment
On December 18, 2013, Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, moderated a panel, "There May Be Money for Your Client for Site Remediation," sponsored by the New Jersey Bar Association's Environmental Law Section. The program focused on the Hazardous Discharge Site Remediation Fund ("HDSRF"). Michael Deely, Supervisor for NJDEP's HDSRF program, cheered the audience by reporting that the long depleted fund once again has money for site remediation grants and loans.… Continue Reading

May 14, 2014 Remedial Investigation Deadline Approaching for Discharges Discovered Prior to May 7, 1999

Posted in Environmental & Green Issues
Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment.… Continue Reading

May 7, 2014 Remedial Investigation Deadline Approaching for Discharges Discovered Prior to May 7, 1999

Posted in Environmental & Green Issues
Many Responsible Parties will be scrambling to meet the May 7, 2014 deadline to complete their remedial investigations. Failure to meet the deadline risks that the New Jersey Department of Environmental Protection (NJDEP) will undertake direct oversight of an entire contaminated site. Pursuant to the Site Remediation Reform Act (SRRA), the May 2014 deadline applies to all discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999, due to an obligation to complete a site investigation or preliminary assessment.… Continue Reading

Appellate Division Finds a Six Year Statute of Limitations Applicable to New Jersey Spill Act Claims

Posted in Environmental & Green Issues
In what is a potential game changing decision, the Appellate Division of the Superior Court of New Jersey, in Morristown Associates v. Grant Oil Company, et al., Docket No. A-0313-11T3 (App. Div. Aug. 23, 2013) recently held that the six year statute of limitations applicable to property damage claims is applicable to private claims pursuant to the New Jersey Spill Compensation and Control Act.… Continue Reading

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

Posted in Environmental & Green Issues
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.… Continue Reading

More Streamlining of Permit Procedures for Rebuilding After Superstorm Sandy

Posted in Environmental & Green Issues
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.… Continue Reading

Raising Standards for Rebuilding After Sandy

Posted in Environmental & Green Issues
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.… Continue Reading

Appellate Court Upholds NJDEP “Waiver Rule”

Posted in Environmental & Green Issues
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).… Continue Reading

NJDEP Posts FAQs on Post-Sandy Flood Elevation Standards

Posted in Environmental & Green Issues
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.… Continue Reading

Action Required: NJDEP Implements New Vapor Intrusion Screening Levels

Posted in Environmental & Green Issues
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.… Continue Reading

NJDEP Temporarily Waives Permitting Requirements For Rebuilding Infrastructure After Sandy

Posted in Development/Redevelopment, Environmental & Green Issues
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.… Continue Reading
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