Gibbons Law Alert

Gibbons Law Alert

Category: Environmental and Green Issues

A Landmark Step: EPA Designates PFOA and PFOS as Hazardous Substances Under CERCLA

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Posted in Development/Redevelopment / Environmental and Green Issues

On June 5, 2024

The U.S. Environmental Protection Agency’s (EPA) announcement on April 19, 2024, of its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), marks a significant moment in environmental regulation of per- and polyfluoroalkyl substances (PFAS). At the same time, the EPA released a new PFAS Enforcement Discretion and Settlement Policy under CERCLA (“Enforcement Policy”). These two announcements have wide-ranging implications for Superfund cleanups, development projects, public health, and the scope of environmental liability under CERCLA. The Persistent Threat of “Forever Chemicals” PFOA and PFOS belong to the PFAS class, a large group of man-made chemicals known for their exceptional resistance to degradation. These chemicals have been widely used since the 1940s in countless industrial applications and consumer products. Their unique chemical structure makes them highly effective in repelling water, oil, and stains. However, this same property also makes them incredibly persistent in the environment, earning them the nickname “forever chemicals.” Over time, PFAS have infiltrated various environmental media, including soil, water, and air. Extensive research over the past few decades has linked PFAS exposure to a range of human health problems, including: Certain cancers, particularly testicular and kidney cancers Liver damage Increased cholesterol levels Thyroid issues Developmental problems in infants and children, including low birth...

Effective March 20, 2024: New Flood Hazard Disclosure Requirements on New Jersey Property Sellers and Landlords

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Posted in Development/Redevelopment / Environmental and Green Issues / Transactional Real Estate and Leasing

On May 28, 2024

As previously reported, a new statute concerning real property and flood notifications in New Jersey was enacted on July 3, 2023. The new law, which amends the New Jersey Truth-in-Renting Act (P.L. 2001, c.313) and supplements the New Jersey Consumer Fraud Act (NJCFA) (P.L. 1960, c.39), applies to the sale and exchange of all residential and commercial property, as well as to all residential and commercial lease transactions, with certain exceptions. Effective March 20, 2024, New Jersey law now requires that all sellers of commercial or residential real property and all landlords entering into or renewing any commercial or residential leases disclose, in writing, the below enumerated flood risk information with respect to the subject property. New Seller Flood Disclosure Requirements For sales, the statute supplements the NJCFA, to require all sellers of real property to disclose, on the Property Condition Disclosure Statement (the “Disclosure Statement”) promulgated by the New Jersey Department of Community Affairs, whether the property is located in the FEMA Special or Moderate Risk Flood Hazard Area and any actual knowledge of the seller concerning flood risks of the property. The Disclosure Statement’s relevant flood disclosures are listed as questions 109-117. Pursuant to N.J.S.A. 56:8-19.2, all sellers of real property, regardless of whether such property is residential or commercial, must answer the...

Sweeping Affordable Housing Reform Signed Into Law in New Jersey

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Posted in Affordable Housing / Environmental and Green Issues / Transactional Real Estate and Leasing

On March 25, 2024

On March 20, 2024, Governor Phil Murphy signed what could be the most significant and impactful affordable housing reform legislation in New Jersey since the original enactment of the Fair Housing Act (FHA) in 1985 in A4/S50 (the “Law”). After the New Jersey Supreme Court declared the Council on Affordable Housing (COAH) “moribund” in 2015, municipalities and developers, as well as interested advocacy groups, have been engaged in constitutional compliance litigation in an attempt to determine how best to create realistic opportunities for the construction of affordable housing. These various cases resulted in a large number of settlements across the state, with some very public and prolonged litigation still pending.

Landmark Flood Disclosure Bill Now Law in New Jersey, Applies to Both Commercial and Residential Property

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Posted in Development/Redevelopment / Environmental and Green Issues / Transactional Real Estate and Leasing

On August 9, 2023

On June 30, 2023, the New Jersey General Assembly unanimously passed Bill S3110/A4783, which will require sellers of real property and landlords to make specific disclosures regarding a commercial or residential property’s flood risk. The bill was amended to concur with the recommendations of Governor Murphy’s May 8, 2023, Conditional Veto Statement and was enacted into law upon passage. New Jersey was previously one of less than half of the states in the country that did not require any flood disclosures for real estate transactions. Landlord & Seller Flood Disclosure Requirements Specifically, Senate Bill No. 3110 requires landlords and sellers of commercial or residential real property to disclose to prospective tenants and buyers if a property is located in an area designated by the Federal Emergency Management Agency (FEMA) as a Special Flood Hazard Area (known as the 100-year flood plain) or Moderate Risk Flood Hazard Area (known as the 500-year flood plain), and if the property has suffered flood damage in the past to the owner’s knowledge. Sellers are also required to disclose additional facts related to the property’s flood insurance and flood damage history. Additionally, landlords are required to notify tenants of the possible availability of flood insurance via the National Flood Insurance Program. The New Jersey Department of Community Affairs (NJDCA) is...

Three Large Chemical Companies Agree to Historic PFAS Settlement

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Posted in Environmental and Green Issues

On June 12, 2023

Three large American chemical companies, The Chemours Company, DuPont de Nemours, Inc., and Corteva, Inc., recently announced a massive $1.185 billion settlement deal over complaints about the emerging toxic chemicals of concern known as Per- and Polyfluoroalkyl Substances, or PFAS as they are more commonly referred to. PFAS are synthetic chemicals nicknamed “forever chemicals” because they are persistent and resistant to degradation. They have been used in a wide variety of everyday products and are found in detergents, non-stick pans, stain-resistant and waterproof fabrics, fragrances, drugs, disinfectants, pesticides, and fire-fighting foam. According to a joint statement issued by the three companies and a corresponding question and answer addendum, the $1.185 billion total will be distributed to a so-called “water district settlement fund.” The rate that each company will contribute is consistent with a January 2021 Memorandum of Understanding reached between the companies, in which Chemours agreed to a 50-50 split of qualified expenses with both DuPont and Corteva. Under the settlement, Chemours will pay half (approx. $592 million), and DuPont (approx. $400 million) and Corteva (approx. $193 million) will contribute the remaining 50 percent to the fund. As part of the settlement agreement, the three companies do not admit fault in the cases and deny the allegations. Once the settlement is finalized, which the parties...

U.S. Supreme Court Significantly Limits Scope of Federal Government’s Jurisdiction Under the Clean Water Act

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Posted in Environmental and Green Issues

On June 6, 2023

On Thursday, May 25, 2023, the U.S. Supreme Court handed down a decision in Sackett v. EPA, a closely watched case concerning the jurisdictional reach of the federal government’s ability to regulate sources of pollution under the Clean Water Act (CWA). Specifically, the Court addressed the test for determining whether wetlands are “waters of the United States” within the scope of the CWA. The CWA prohibits the discharge of pollutants into “navigable waters,” which the CWA defines as “the waters of the United States.” The definition has been the subject of numerous cases and interpretations, most recently in the 2006 Supreme Court decision in Rapanos v. United States, which created multiple tests for what constituted “waters of the United States.” The majority in Sackett has created a single, much narrower test. The background of Sackett v. EPA dates back to 2007, when plaintiffs Michael and Chantell Sackett began backfilling their property with dirt and rock, about 300 feet from Priest Lake. The Sacketts received a notice from the U.S. Environmental Protection Agency (EPA), which instructed the Sacketts to stop work because of the presence of wetlands protected by the CWA, which bars the discharge of pollutants, including rocks and sand, into “waters of the United States.” The EPA reasoned that the wetlands on the Sacketts’...

Governor Murphy Announces First-in-the-Nation Environmental Justice Rules

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Posted in Development/Redevelopment / Environmental and Green Issues

On April 20, 2023

On Monday, April 17,  2023, New Jersey Governor Phil Murphy announced the adoption of the New Jersey Department of Environmental Protection’s (DEP) Environmental Justice Rules (EJ Rules) implementing New Jersey’s landmark Environmental Justice (EJ) Law signed in 2020. The EJ Law and implementing rules are the first in the nation aimed at reducing pollution in historically overburdened communities that have been subjected to a disproportionately high number of environmental and public health stressors. In his announcement, Governor Murphy stated, “As we enter Earth Week 2023, the final adoption of DEP’s EJ Rules will further the promise of environmental justice by prioritizing meaningful community engagement, reducing public health risks through the use of innovative pollution controls, and limiting adverse impacts that new pollution-generating facilities can have in already vulnerable communities.” DEP Commissioner Shawn M. LaTourette added that, “With the adoption of the nation’s first EJ Rules, New Jersey is on a course to more equitably protect public health and the environment we share.” Under the new rules, which are effective immediately, state environmental officials considering permit requests of eight specific types of facilities must include impacts to residents of affected communities in their decision-making process. The eight types of facilities that must comply with the new EJ Rules are: gas-fired power plants, cogeneration facilities, and other...

2023 Is Shaping Up to Be a Big Year for the Clean Water Act and Its “Waters of the United States”

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Posted in Environmental and Green Issues

On April 17, 2023

In January, the Biden Administration promulgated the federal government’s latest rule defining “waters of the United States” (WOTUS Rule). The WOTUS Rule, which defines the waters that are subject to federal permitting and oversight under the Clean Water Act (CWA) by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE), went into effect on March 20, 2023. As with past attempts to define “waters of the United States,” the new WOTUS Rule is already triggering legal challenges. Since the enactment of the CWA in 1972, courts, agencies, and landowners have struggled to define the statute’s geographic scope, especially with respect to wetlands, which do not fit neatly within familiar notions of “water” or “land.” The statute prohibits unpermitted discharges of pollutants (including fill material) into “navigable waters” but defines that term broadly as “the waters of the United States, including the territorial seas.” The Biden Administration’s WOTUS Rule replaces the Trump Administration’s Navigable Waters Protection Rule (NWPR), which was promulgated in 2020 but subsequently vacated by two federal district courts. The NWPR followed the Trump Administration’s 2019 repeal of a 2015 Obama Administration rule (the 2015 Clean Water Rule) that had taken a categorical approach to defining “waters of the United States.” The Biden Administration’s WOTUS Rule seeks to return to...

New Policy From DOJ Offers Predictability and Incentives to Self-Report Misconduct

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Posted in Environmental and Green Issues

On March 7, 2023

Representatives of the United States Attorney’s Office (USAO) announced on February 22, 2023, the immediate implementation of a new Voluntary Self-Disclosure Policy. This new policy was created in response to a September 2022 memorandum from the Deputy Attorney General, which requested that each component of the Department of Justice (DOJ) review its policies on corporate voluntary self-disclosure and revise or create a formal written policy that incentivizes such self-disclosure. The stated intention of the new policy is to provide transparency and predictability to companies and the defense bar concerning the benefits, and potential outcomes, in cases where companies voluntarily self-disclose misconduct, fully cooperate with the government, and remediate the misconduct in a timely and appropriate manner. In general, the policy requires that: (1) the disclosure of misconduct is made voluntarily (not to include instances where there is a pre-existing obligation to disclose, e.g., by regulation or contract); (2) the disclosure be made prior to an imminent threat of disclosure, prior to the misconduct being publicly disclosed, and within a reasonably prompt time after the company becomes aware of the misconduct; and (3) the disclosure includes all relevant facts concerning the misconduct that are known to the company. The incentives created by this new policy are significant and include the following: Absent the presence of aggravating...

New Enforcement Rules for New York City Environmental Remediation Programs

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 13, 2023

Owners and developers of sites enrolled in New York City’s environmental remediation programs should be aware of new enforcement rules. The rules provide for new reporting requirements and strengthened enforcement mechanisms and penalties. Background About New York City Environmental Remediation Programs The New York City (NYC) Mayor’s Office of Environmental Remediation (OER) manages NYC’s Voluntary Cleanup Program (VCP) and E-Designation Program (EDP). Under the VCP, environmental site investigations and remediations are conducted with OER oversight. After a site is remediated, OER issues a notice of completion (NOC), which provides that NYC “shall not take or require any further investigatory or remedial action” at the site.[1] The New York State Department of Environmental Conservation (NYSDEC) is also unlikely to require further action at sites with NOCs, pursuant to a Memorandum of Agreement between NYSDEC and OER.[2] NOCs may be assigned to third parties, such as the purchaser of a site that has been cleaned up.[3] The VCP also provides other benefits, including hazardous waste fee exemptions and monetary grants. By contrast to the VCP, the EDP is a mandatory program. It applies to specific sites given “E-Designations” or similar Restrictive Declarations because of potential contamination or other issues identified during a zoning action. For instance, sites previously zoned only for manufacturing that have been rezoned to...

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