Tagged: NJDEP

NJ Governor Supports Additional NJDEP Permitting Requirements to Address Environmental Justice Concerns

NJ Governor Supports Additional NJDEP Permitting Requirements to Address Environmental Justice Concerns

On June 19, 2020, Governor Murphy announced his support for proposed legislation that would require the New Jersey Department of Environmental Protection (NJDEP), and permit applicants, to take additional steps prior to permits being issued for new or expanded facilities under a wide variety of state environmental statutes. The proposed legislation, which aims to protect those communities that historically have been most impacted by pollution from industrial and related activities, would require the NJDEP to publish and maintain a list of those communities determined to be “overburdened.” In the proposed legislation, “overburdened community” is defined as: “any census block group, as determined in accordance with the most recent United States Census, in which at least one half of the households qualify as low income households, and either: (1) at least 40 percent of the residents of the census block group identify as Black, African American, Hispanic or Latino, or as members of a State-recognized tribal community; or (2) at least 40 percent of the households in the census block group have limited English proficiency.” Prior to approval of covered permit applications, an applicant would be required to assess and prepare an environmental impact statement to outline both the existing environmental...

New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS

New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS

On June 1, 2020, the New Jersey Department of Environmental Protection (DEP) officially published health-based drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). These chemicals have received serious attention from the environmental community in the last several years due to increasing science that has confirmed the harmful impact of PFOA/PFOS on human health and the environment. These new more stringent rules, published in the New Jersey Register, set maximum contaminant levels (MCLs) at: 14 parts per trillion for PFOA and 13 parts per trillion for PFOS. The DEP also added PFOA and PFOS to the state’s list of hazardous substances. Site remediation activities and regulated discharges to groundwater of PFOA and PFOS will now have to comply with these new standards. These new formal standards establish a regulatory framework that will provide consistency in remediation activities statewide. It is important to note that PFOA and PFOS are just two of potentially thousands of per- and polyfluoroalkyl substances (or PFAS). To date Vermont and New Hampshire are the only other two states to set MCLs for PFAS. New York is working on similar standards. New Jersey issued a standard of 13 parts per trillion for perfluorononanoic acid...

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic. EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19 EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs). At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and...

A Refinery Is Not a Gas Station: N.J. Court Says Former Oil Operation Was Abnormally Dangerous Activity

A Refinery Is Not a Gas Station: N.J. Court Says Former Oil Operation Was Abnormally Dangerous Activity

The 1976 Spill Compensation and Control Act (“Spill Act”) gave New Jersey a wide variety of new powers to address, and seek reimbursement for, environmental contamination. Despite its broad new remedies, however, it did not pre-empt or “subsume” common-law theories such as strict liability for abnormally dangerous activities. Moreover, the historical operations at an oil refinery and terminal that resulted in substantial discharges and pollution of nearby waterways could constitute an abnormally dangerous activity. So held the Appellate Division in its recent opinion in New Jersey Department of Environmental Protection v. Hess Corporation. Hess involves a property in the Port Reading section of Woodbridge historically operated as an oil refinery and terminal. In its 2018 complaint against Hess (which developed the property in 1958 when it was known as Amerada Hess Corporation) and Buckeye Partners, LP (which acquired the property from Hess in 2013), the New Jersey Department of Environmental Protection (NJDEP) alleged discharges of oil affecting the nearby Smith Creek and Arthur Kill during Hess’s period of ownership.  The NJDEP asserted claims under the Spill Act, the Water Pollution Control Act, strict liability, trespass, and public nuisance, seeking both injunctive relief and money damages in connection with the defendants’ failure...

Governor Murphy Continues to Develop Climate Change Resiliency Strategy for New Jersey

Governor Murphy Continues to Develop Climate Change Resiliency Strategy for New Jersey

Building on his vision to develop a Statewide Climate Change Resiliency Strategy launched last year by signing Executive Order 89, on January 27, 2020, Governor Murphy signed Executive Order 100 (EO 100), which the Governor’s office described in a press release as directing the “most sweeping set of climate change reforms in the nation.” The EO labels the reforms as the “Protecting Against Climate Threats” regulations, or “PACT.” EO 100 references the State’s Global Warming Response Act (“GWRA”), N.J.S.A. 26:2C-37, et seq., and the updated Energy Master Plan, which outlines seven “key strategies and includes an implementation plan that lays out next steps and timelines.” The seven key strategies are: 1) reducing energy consumption and emissions from the transportation sector; 2) accelerating deployment of renewable energy and distributed energy resources; 3) maximizing energy efficiency and conservation, and reducing peak demand; 4) reducing energy consumption and emissions from the building sector; 5) decarbonizing and modernizing New Jersey’s energy systems; 6) supporting community energy planning and action in underserved communities; and, 7) expanding the clean energy innovation economy. It is in furtherance of these “key strategies” that EO 100 directs DEP to draft and implement “the sweeping suite of climate change regulations.”...

New Jersey Appellate Division Clarifies Spill Fund Lien Law &  Procedure

New Jersey Appellate Division Clarifies Spill Fund Lien Law & Procedure

In an unpublished opinion captioned In Re Spill Fund Lien, DJ No. 129570-02; 954 Route 202, the Appellate Division affirmed the final agency decision of the Spill Compensation Fund (Fund) holding that the lien filed against the property and revenues to recover remediation costs that the Fund expended in cleanup was appropriate under the New Jersey Spill Act (Spill Act). The property owner, Branch 2002 LLC (Branch), had purchased a gas station from a previous owner who was ordered by the New Jersey Department of Environmental Protection (NJDEP) to conduct a remedial investigation and remove or treat contaminated soil from leaking underground storage tanks at the property. Ultimately, the previous owner did not conduct the required remediation, so the NJDEP oversaw remediation of the property using Fund resources. The property was later sold to Branch, with the prior owner’s insurance company indemnifying all subsequent owners for any liability arising out of the prior owner’s discharge. The Fund Administrator filed the initial lien on the property for expenditures and commitments incurred by the Fund in 2002, and then later amended this lien in 2015 to reflect additional costs expended and requested that the Superior Court Clerk enter the addresses of both...

Governor Murphy Signs Executive Order Addressing Climate Change Resiliency for New Jersey

Governor Murphy Signs Executive Order Addressing Climate Change Resiliency for New Jersey

As storms like Superstorm Sandy continue to grow more devastating and frequent, communities, governments, businesses, and industries of all sizes and varieties must face the challenge of adapting to a changing climate. October 29, 2019 marked the seventh anniversary of Sandy hitting New Jersey. Governor Murphy marked this occasion by signing Executive Order 89, which calls on the Department of Environmental Protection (DEP) to establish a Statewide Climate Change Resilience Strategy, among other initiatives related to climate change adaptation. “New Jersey is extremely vulnerable to the impacts of sea-level rise and global warming, and [this] Executive Order outlines a bold and comprehensive set of actions to ensure that our communities and infrastructure are more resilient against future storms,” said Government Murphy about the signing. The preamble to the Executive Order notes that New Jersey is especially vulnerable to the impacts of climate change as a coastal state. Picking up on this administration’s Environmental Justice efforts, the Order acknowledges that minority and low-income communities are disproportionately affected by the impacts of climate change. Climate change of course is an issue that also impacts all communities, including the business community, industry, and government. The preamble also notes that “studies show that each...

New Jersey Enacts Changes to Landmark 2009 Site Remediation Reform Act

New Jersey Enacts Changes to Landmark 2009 Site Remediation Reform Act

In 2009, in the face of a significant backlog of sites that were stuck in the Department of Environmental Protection (DEP) pipeline, the New Jersey Legislature dramatically changed the process of site remediation in the Garden State with the enactment of the Site Remediation Reform Act (SRRA). The SRRA partially outsourced DEP’s review role by authorizing “private” oversight of cleanups by Licensed Site Remediation Professionals (LSRPs). On August 23, 2019, Governor Murphy signed new legislation that made further adjustments to the changes wrought by the SRRA. The legislation (L. 2019, c. 263), which sailed through both legislative chambers without a single opposing vote, makes a number of changes to the LSRP program, as well as other changes affecting parties responsible for conducting remediation projects. Amendments Affecting LSRPs Removal of unoccupied structures from list of areas that must be addressed as an “immediate environmental concern.” Expansion of LSRP duties to report immediate environmental concerns and previously unreported discharges. A slight relaxation of licensing requirements for individuals who may have temporarily left the work force for personal reasons. Clarification of prior acts and punishments that will disqualify a person from obtaining an LSRP license. Tightening of LSRPs’ oversight responsibilities to ensure that...

NJDEP Proposes to Reclassify 749 Miles of Waterways to Highly Protected Antidegradation Status in First Such Move Since 2008

NJDEP Proposes to Reclassify 749 Miles of Waterways to Highly Protected Antidegradation Status in First Such Move Since 2008

For the first time since 2008, the New Jersey Department of Environmental Protection (NJDEP) has proposed to amend its surface water quality standards to prohibit degradation of water quality in additional rivers and streams that did not previously enjoy such protection. The current proposal, which was released on March 4, would lift hundreds of miles of waterways to a more protected status as Category One waters. NJDEP’s water quality standards, found at N.J.A.C. 7:9B, have several components. The standards designate uses for all waters of the State, and prescribe water quality criteria (e.g., minimum levels of dissolved oxygen, and maximum levels of suspended solids and various toxics) necessary to allow for those uses. In addition, the standards establish three tiers of “antidegradation” designations. The highest tier consists of “outstanding natural resource waters,” so designated because of their unique ecological significance or because they are within the Pinelands, must be maintained in their natural state. Category One waters, occupying the second tier, are protected from any measurable change in their existing water quality. Water quality in Category Two waters, the third tier, may be lowered, but only with social and/or economic justification for the change. NJDEP’s proposal, which was first presented...

Settlors Beware: A Recent NJ District Court Decision Has the Potential to Have Far Reaching Impacts on Parties Entering into Settlements Under CERCLA

Settlors Beware: A Recent NJ District Court Decision Has the Potential to Have Far Reaching Impacts on Parties Entering into Settlements Under CERCLA

A recent decision from the United States District Court for the District of New Jersey may throw a new wrinkle into the already complex settlement process under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, the decision addresses the question of what claims are included in the “matters addressed” in a settlement and entitled to contribution protection. On July 23, 2018, in N.J. Dep’t of Envtl. Prot. v. Am. Thermoplastics Corp, et al., Judge William H. Walls granted summary judgment in favor of the third-party defendants Carter Day Industries, Inc. (CDI), Combe Fill Corporation (CFC), and Combustion Equipment Associates, Inc. (“CEA”) (collectively, “Carter Day Parties”). Judge Walls held that the Carter Day Parties are entitled to contribution protection from claims for CERCLA costs incurred by the United States Environmental Protection Agency (USEPA) based on a settlement agreement between the Carter Day Parties and the State of New Jersey, notwithstanding that USEPA was not a party to the settlement. In following, the five-count first amended complaint of the third-party plaintiffs’ Compaction Systems Corporation of Connecticut, Inc. and Compaction Systems Corporation of New Jersey (together, “Compaction”) was dismissed with prejudice. The five counts of the complaint were: i) cost recovery...