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...
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 (PFNA) in 2018. The federal government has not yet established MCLs for PFAS. While there...
All in the Family: N.J. Appellate Division Holds That Status of Pre-1983 Purchaser as “Innocent Party” Applied to Current Owner Despite Property Transfers Among Family Members Via Trusts
Reversing the denial of an application for an “innocent party” grant, the New Jersey Appellate Division recently held in an unpublished opinion, Cedar Knolls 2006, LLC v. New Jersey Department of Environmental Protection, that property transfers among family members, even through the use of trusts, are not “changes of ownership.” Thus, a corporation that acquired a parcel of land in 2006 was eligible to seek an “innocent party” grant that is available only to pre-1983 transferees because the property had remained within the same family since its original acquisition in 1977. The property at issue was originally acquired in 1977 by Robert Higginson, well before the December 31, 1983 cutoff for eligibility as an “innocent party” under New Jersey law. Upon his death 16 years later, he bequeathed the property to his wife through two 50% shares placed into separate trusts. His wife then assigned her shares in the property to two new trusts. The interests of those trusts in the property were subsequently transferred to their son, who created a new entity, Cedar Knolls 2006, LLC, to which he transferred the two 50% shares, making Cedar Knolls the sole owner of the property. Nine years later, Cedar Knolls applied for an innocent party grant to cover the costs of remediating the property. NJDEP denied the...
Turning Back the Clock: NJ Appellate Division Holds That ISRA De Minimis Quantity Exemption Still Available Following Withdrawal of NFA
The New Jersey Appellate Division recently announced several interesting holdings regarding the New Jersey Industrial Site Recovery Act (“ISRA”), N.J.S.A. 13:1K-6, et seq. In R&K Associates, LLC v. New Jersey Department of Environmental Protection, Docket No. A-4177-14T1, the Court held that a former owner of an industrial site may apply for an exemption from the ISRA process even when the former owner has not owned the site for many years and elected to not pursue the exemption in the past. The case concerned the final decision of the Department of Environmental Protection (“DEP”) denying a De Minimis Quantity Exemption (“DQE”) under ISRA to the former owner of the subject industrial site. ISRA is the New Jersey law which generally requires owners of industrial sites to remediate on-site environmental contamination or expressly assume responsibility for remediation prior to transferring an ownership of the site. A DQE under ISRA allows an owner of an industrial site to avoid the requirements of ISRA where only trivial amounts of hazardous substances were used on-site. The case has an extensive procedural history with three appeals and numerous DEP actions, beginning with DEP’s withdrawal of a 1997 No Further Action (“NFA”) letter to the former owner. When the former owner sold the site in 1997, it submitted a Preliminary Assessment Report (“PAR”)...
N.J. Appellate Court Clarifies That Owners of Pre-1993 Property Must Prove Due Diligence During Acquisition Under the Innocent Purchaser Defense Codified in the Spill Act
On October 29, 2012, as Hurricane Sandy began its assault on the State, a New Jersey Appellate Court in New Jersey School Developments Authority v. Marcantuone created its own “storm” in Spill Act jurisprudence by holding that purchasers of contaminated property prior to September 14, 1993, can be liable under the Spill Act if they failed to conduct due diligence prior to purchase. In reaching this conclusion, the Appellate Division held that the long-standing 2001 decision in White Oak Funding, Inc. v. Winning had been superseded, in part, by the 2001 amendments to the Spill Act (“2001 Amendments”), which had been adopted a few weeks before the White Oak decision and became effective a week after the decision.
To fully implement the Site Remediation Reform Act, the New Jersey Department of Environmental Protection (NJDEP) has published a notice of adoption of amendments to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS rules), N.J.A.C. 7:26C in the New Jersey Register today, May 7, 2012. This adoption also amends several other rules related to site remediation in New Jersey, including the repeal and replacement of the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and amendments to the Industrial Site Recovery Act rules, N.J.A.C. 7:26B. This rule adoption is concurrent with the final May 7, 2012 deadline for almost all remediating parties to engage a Licensed Site Remediation Professional to conduct remediations in NJ.
NJDEP Clarifies Impact of Site Remediation Reform Act on Requirements of Administrative Consent Orders and Remediation Agreements
With full implementation of the Site Remediation Reform Act on the horizon, the New Jersey Department Environmental Protection (NJDEP) recently clarified that for parties currently proceeding with remediation under NJDEP oversight pursuant to an Administrative Consent Order (ACO) or Remediation Agreement (RA), such parties will be expected to engage a Licensed Site Remediation Professional no later than May 7, 2012. Any ACO/RA requirements to obtain NJDEP pre-approval of reports and workplans will be held in abeyance. Likewise, any ACO/RA specific timeframes will also be held in abeyance. Instead, responsible parties must meet all regulatory and mandatory timeframes prescribed in applicable rules. However, the ACO/RA will otherwise remain in effect until the remediation is complete or covered by a remedial action permit and parties will be subject to, among other requirements, the remediation funding source requirements and stipulated penalties.
On August 15, 2011, the New Jersey Department of Environmental Protection (NJDEP) issued proposed Final Rules to implement the Site Remediation Reform Act (SRRA) adopted in May 2009. These rules are intended to be the final implementation step in the phased transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by Licensed Site Remediation Professionals (LSRPs). Instead of NJDEP overseeing every step of a cleanup, the LSRP, licensed by a 13-member Licensed Site Remediation Professional Board with investigative and disciplinary powers, is responsible for making day-to-day decisions about a clean-up. Certain categories of cleanups remain under NJDEP oversight, such as where the responsible party has a history of non-compliance or has failed to meet mandatory deadlines. The rule proposal appeared in the New Jersey Register on August 15, 2011 and can be viewed online. Comments can be submitted until October 14, 2011.
One perennial criticism leveled at the Department of Environmental Protection (“NJDEP”) is that it takes too long to issue permits. There have been a long list of initiatives intended to ensure that the NJDEP makes permit decisions which are predictable and timely. Indeed, Commissioner Martin has repeatedly commented on the need to ensure that NJDEP perform efficiently and focus on servicing all stakeholders – including applicants, and included this goal in his 2010 Vision Statement for the department. At long last, NJDEP appears to be taking concrete steps to implement efficiencies in the permit process. On January 27, 2011, NJDEP announced that it would begin to tackle this problem by changing the way it processes the most common land-use permits for contaminated sites and landfill closures.
The New Jersey Department of Environmental Protection is seeking input from all interested stakeholders as it develops proposed revisions to three separate sets of regulations that govern site cleanups: the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”) rules,which were drafted to implement the Site Remediation Reform Act; the regulations covering cleanups under the Industrial Site Recovery Act (“ISRA”); and the rules for cleanups involving underground storage tanks. NJDEP’s call for public input represents an unusual opportunity to affect the agency’s plans as the proposals are being drafted. Three members of the Gibbons Environmental Team have already published a detailed analysis of important issues raised by NJDEP’s working drafts.