Tagged: DEP

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

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

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...

Unraveling Environmental Legal Complexities: Lessons from the Clarios Case and RIP Waivers

A recent February 5, 2024, decision by the New Jersey Superior Court Appellate Division delivered a significant blow to Clarios, LLC (Clarios), a car battery manufacturer facing environmental scrutiny at its New Brunswick plant. This recent decision has echoed through the environmental legal landscape, leaving companies contemplating the use of Remediation in Progress Waivers (RIP waivers) with critical questions and a renewed sense of caution. The case, far from offering definitive answers, instead highlights the intricate interplay between property rights, environmental stewardship, and the nuances of due process protections. Moreover, the court’s denial of Clarios’s request to postpone remediation has broader implications for scenarios involving joint liability agreements and property transactions, highlighting the complex challenges associated with RIP waivers. By dissecting the court’s reasoning and its implications, we gain valuable insights into the limitations and prudent utilization of RIP waivers, ensuring responsible environmental practices and mitigating unintended legal consequences. Decoding the Chain of Title of the RIP Waiver The complex history of the RIP waiver granted to Clarios in 2007 finds its roots in the ownership transition of the site. Delphi Automotive Systems, LLC (Delphi), the former owner, had been manufacturing automobile batteries at the location. In 2006, Delphi sold the property to Johnson Controls Battery Group, Inc., a corporate predecessor of Clarios, triggering a sequence of...

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

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...

NJDEP Extends Some Deadlines for Remediation Activities

In light of the disruptions created by the COVID-19 pandemic, the New Jersey Department of Environmental Protection (NJDEP) has again extended certain deadlines (or, in the language of the relevant statutes and regulations, timeframes) for the completion of various remediation activities at contaminated sites. On February 1, 2021, NJDEP issued a Notice of Rule Waiver/Modification/Suspension pursuant to Executive Order No. 103, which was issued on March 9, 2020. It follows similar notices issued on April 24, 2020 and August 17, 2020. The new notice extends some regulatory and mandatory timeframes reached during the effective period of Executive Order 103 for a total of 455 days (including the prior 270-day extensions), with corresponding extensions of subsequent timeframes. For remediations subject to the statutory timeframes in N.J.S.A. 58:10C-27 and -27.1, requiring completion of the remedial investigation by May 7, 2014 or May 7, 2016, it extends the timeframe for completing the remedial action from May 6, 2021 to May 6, 2022. Parties seeking to benefit from the extensions must have retained a licensed site remediation professional (LSRP). While surely not among the most significant effects of the pandemic, these changes in remediation timeframes are among the hardest to follow. Parties conducting (or even simply monitoring) remediation projects, their counsel, and their LSRPs would do well to keep...

Thomson West Releases 2020-2021 Update of Business Law Deskbook, With Two Environmental Law Chapters Authored By Gibbons Attorney

The recently released 2020-2021 update of the Thomson West New Jersey Business Law Deskbook includes chapters authored by Paul M. Hauge, Counsel in the Gibbons P.C. Environmental Law Department. Mr. Hauge authored Chapter 26, which discusses the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and Chapter 27, on New Jersey Environmental Law. The Deskbook, updated annually to reflect statutory, regulatory, and judicial developments, is designed to give attorneys user-friendly primers on roughly 40 areas of business law. Gibbons Environmental Law Department Director Susanne Peticolas pioneered the firm’s involvement with the Deskbook in 2003, authoring the Gibbons contributions until 2007 and sharing authorship with Mr. Hauge between 2008 and 2019.

Jordan Asch to Participate in Upcoming NJSBA Panel Discussion – “Resolving Everyday Environmental Problems” – November 5

Jordan M. Asch, an Associate in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by the New Jersey State Bar Association, in cooperation with its Environmental Law Section. The panel, “Resolving Everyday Environmental Problems,” will take place virtually on Thursday, November 5 from 9:00 – 10:30 am. The discussion will cover some of the complex, and often expensive, environmental issues that small businesses and homeowners may face, including site remediation issues, funding sources, environmental permitting, and the permitting process. Attorneys who represent small business owners that own or lease real property, or that may develop or improve real property, as well as homeowners that may face environmental remediation or permitting issues are encouraged to attend. For additional information or to register, click here.

New Jersey Files Six Lawsuits as Part of Its Environmental Justice Initiative

Last week, New Jersey Attorney General Gurbir S. Grewal and Department of Environmental Protection (DEP) Commissioner Catherine R. McCabe announced jointly the state’s filing of six environmental enforcement actions against alleged polluters in minority and low-income communities in various locations throughout the state. The filings are this administration’s latest action in its environmental justice initiative, as Gibbons has previously covered on this blog. The six lawsuits involve sites in Newark, East Orange, Camden, and two sites in Trenton. In these suits, the state brings claims under various New Jersey environmental statutes, including the Spill Compensation and Control Act, the Water Pollution Control Act, the Air Pollution Control Act, the Solid Waste Management Act, the Industrial Site Recovery Act, and the Brownfield and Contaminated Site Remediation Act. Per the joint press release, the lawsuits in Newark and Trenton “involve companies that released hazardous substances at their properties and refused to clean them up.” In Newark, the state seeks to require the defendants to investigate the extent of the contamination, to clean up the site, and to reimburse the state for over $500,000. For one of the Trenton sites, the state similarly seeks to compel the defendants to clean up the site and to reimburse the state for over $400,000. At the other Trenton site, the state...

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 whether social distancing at specific sites is possible. In making decisions to reduce or suspend...

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.” Most prominently, these regulations will include the establishment of a greenhouse gas monitoring and reporting...