Gibbons Law Alert

Gibbons Law Alert

Tagged: Environmental & Green Issues

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

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Posted in Environmental and Green Issues

On May 6, 2013

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.

Vapor Intrusion Guidance Continues to Take Form With the Release of EPA’s Final Draft Guidance

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Posted in Environmental and Green Issues

On April 26, 2013

The United States Environmental Protection Agency (“EPA”) recently released its long-awaited final vapor intrusion draft guidance (“Final VI Guidance”). The nearly 200-page document establishes a complex framework for assessing vapor intrusion from analyzing key factors; making risk management decisions; and implementing, monitoring and terminating mitigation strategies and is intended to be used at any site that is being evaluated under CERCLA, RCRA, EPA’s brownfield grantees, or state agencies with delegated authority. The Final VI Guidance supercedes all prior EPA guidance documents addressing vapor intrusion assessment and mitigation including the 2002 Draft Vapor Intrusion Guidance, but takes into account the public comments submitted from 2002 through 2012 and the recommendations of the Office of Inspector General (OIG).

More Streamlining of Permit Procedures for Rebuilding After Superstorm Sandy

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Posted in Environmental and Green Issues

On April 24, 2013

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.

Raising Standards for Rebuilding After Sandy

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Posted in Environmental and Green Issues

On April 5, 2013

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.

Appellate Court Upholds NJDEP “Waiver Rule”

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Posted in Environmental and Green Issues

On March 27, 2013

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).

Gibbons Director, David Freeman, to Speak at Upcoming Strafford Brownfield Webinar

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 27, 2013

David J. Freeman, a Director in the Gibbons Real Property & Environmental Department, will speak at the upcoming Strafford webinar, “New Developments in Brownfield Redevelopment,” on Tuesday, March 19, 2013. Recently, brownfield development has grown more complex, creating new challenges on top of the pre-existing federal, state and local legal and regulatory requirements and permitting approvals. Mr. Freeman and his fellow panelists will discuss “hot topics” in brownfield redevelopment, including: Bona Fide Purchaser Requirements After the Ashley II Decision; Vapor Intrusion; Brightfields; Changes in Land Use; Financing; Environmental Justice.

District Court Decision Provides Further Guidance on Scope of “Arranger” Liability Under Superfund

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Posted in Environmental and Green Issues

On February 15, 2013

The U.S. Supreme Court’s decision on “arranger liability” under Superfund in Burlington Northern & Santa Fe Ry. Co. v United States continues to reverberate. The most recent manifestation is a January 31, 2013, decision by the U.S. District Court for the Eastern District of North Carolina in Carolina Power & Light Co. v. Alcan Aluminum Corp. In that decision, the Court granted summary judgment to Georgia Power Co. on the basis that its sale of used transformers to the operator of the Ward Transformer Superfund Site (Site) did not amount to an “arrangement for disposal.” In examining the “fact-specific circumstances,” the Court determined that the evidence established that these transactions were sales of a “useful product” rather than ones with an intent to dispose of a hazardous substance.

NJDEP Posts FAQs on Post-Sandy Flood Elevation Standards

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Posted in Environmental and Green Issues

On February 11, 2013

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.

Action Required: NJDEP Implements New Vapor Intrusion Screening Levels

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Posted in Environmental and Green Issues

On January 24, 2013

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.

A Super Step in Superfund Regulation? Time Will Tell: EPA Releases Guidance on Negotiation of RD/RA at Superfund Sites and a Revised Settlement Approach for Alternate Sites

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Posted in Environmental and Green Issues

On January 14, 2013

In the controversial area of Superfund regulation, the United States Environmental Protection Agency (“EPA”) appears to be making steps toward more successful and more efficient negotiation of remedial design (“RD”)/remedial action (“RA”) settlements in Superfund cases. EPA recently released its Revised Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations (“the Negotiation Policy”) and Transmittal of Updated Superfund Response and Settlement Approach for Sites Using the Superfund Alternative Approach (“Alternative Approach”).

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