Tagged: New Jersey

New Jersey Adopts 2021 International Building Code and Grace Period for Permit Applications

The New Jersey Department of Community Affairs (DCA) has recently amended the Building Subcode of the Uniform Construction Code (UCC) to incorporate the 2021 Edition of the International Building Code (IBC). Builders, developers, and others currently applying for construction permits should be aware of the provision within the UCC that provides for a grace period from application of the newly adopted regulations until March 6, 2023. On April 18, 2022, DCA posted in the New Jersey Register proposed amendments to the Building Subcode, located within the New Jersey Administrative Code at N.J.A.C. 5:23-3.14, to incorporate the 2021 Edition of the IBC. The model codes for buildings, which include residential and commercial structures, energy, fire protection, mechanical, and fuel gas, are published by the International Code Council, and DCA proposes and adopts the model codes as part of the UCC. Since 1996, DCA has undertaken a review of each subsequent model code edition and has proposed and adopted the new edition of the national model codes. The most recently adopted amendments to the UCC’s Building Subcode incorporate the 2021 edition of the IBC. The Building Subcode amendments were adopted on September 6, 2022. Of particular importance to builders and developers, the UCC contains a grace period provision at N.J.A.C. 5:23-1.6, which provides that for a period...

Appellate Division Rejects Judicial Review Upon Assertion of Good-Cause Defenses to an NJDEP Spill Act Directive Prior to Imposition of Direct Oversight

On January 9, 2023, the New Jersey Appellate Division issued its decision in In re N.J. Dep’t of Envtl. Prot. Direct Oversight Determination, in which the court addressed whether good-cause defenses asserted by Solvay Specialty Polymers USA, LLC (“Solvay”) to a statewide directive had to be decided by a court before the New Jersey Department of Environmental Protection (NJDEP) could place it under direct supervision. Solvay has owned and operated a manufacturing plant along the Delaware River since 1990 (the “Site”). When Solvay was informed of sampling data establishing the presence of perfluorononanoic acid (PFNA) and perfluorooctanoic acid (PFOA), two specific per- and polyfluoroalkyl substances (PFAS), so-called “forever chemicals,” in the area near the Site, Solvay began investigating and remediating PFNA and PFOA that might be attributable to the Site. In September 2013, at the NJDEP’s request, Solvay entered into the NJDEP’s site remediation program and hired a licensed site remediation professional (LSRP) to oversee its remediation efforts. In March 2019, the NJDEP issued a Statewide PFAS Directive to Solvay and other entities, in which the NJDEP determined that Solvay is responsible for PFNA and PFOA contamination arising from the Site, which has contaminated the Site and surrounding areas, including the state’s natural resources. The Statewide PFAS Directive provided detailed steps to be taken by...

NJDEP Posts Guidance for Prospective Purchasers of Contaminated Sites to Obtain Adjustments to Direct Oversight Requirements

On September 9, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued its Pre-Purchase Administrative Consent Order Guidance through the NJDEP’s Contaminated Site Remediation & Redevelopment Program. The guidance document explains how prospective purchasers of contaminated sites subject to Direct Oversight can obtain a Pre-Purchase Administrative Consent Order (ACO), allowing for adjustments to Direct Oversight requirements. Under the Site Remediation Reform Act, if the person responsible for conducting remediation of a contaminated site fails to complete the investigation and remediation within mandatory timeframes, the NJDEP automatically places the site into Direct Oversight. The Direct Oversight requirements are a more prescriptive remediation process for the person responsible for conducting remediation. Some of the Direct Oversight requirements include: NJDEP selection of the remedial action for the site; NJDEP approval of each document submitted by a licensed site remediation professional; establishment of a remediation funding source in the amount needed to complete remediation; performance of a remedial action feasibility study for NJDEP approval; and compliance with an NJDEP-approved public participation plan. Once a potential buyer of a site closes on a contaminated property subject to Direct Oversight, the potential buyer becomes a person “in any way responsible” for remediating the site pursuant to the Spill Compensation and Control Act (“Spill Act”). By entering into a Pre-Purchase ACO,...

NJ Seeks to Expand Reach of the Spill Act in PCB Contamination Suit Against Monsanto and Others

On August 4, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued a press release announcing a lawsuit of sweeping, breathtaking scope against Monsanto, Solutia, and Pharmacia ─ all linked to the original Monsanto (“Old Monsanto”), which reorganized its businesses into three separate corporations in the late 1990s ─ seeking natural resource damages (NRDs) for polychlorinated biphenyl (PCB) contamination across the entire state of New Jersey. Old Monsanto formerly operated a large industrial facility in Bridgeport, an unincorporated community in Logan Township, Gloucester County, New Jersey (the “Bridgeport Site”). In addition to the claims for statewide PCB contamination, the complaint seeks NRDs and other relief in connection with the Bridgeport Site. The suit alleges the three defendants contaminated the area in and around the Bridgeport Site through discharges of many chemicals, including PCBs, over decades of operations at that site. PCBs are a class of toxic synthetic organic chemical compounds that enter the environment by escaping their intended applications, passing into water bodies, sediment, and soils. In a statement announcing the suit, Acting Attorney General Matthew J. Platkin said that “PCBs contamination has harmed natural resources and threatened the health of humans and wildlife in every corner of New Jersey . . . includ[ing] many environmental justice communities ─ communities throughout our State that...

Legislative Update: NJ Legislature Passes Proposed Legislation Extending Outdoor Dining to 2024

On June 29, the New Jersey Legislature unanimously passed Bill S2364 ScaAa (2R), which would extend the outdoor dining and drinking privileges allowed under P.L. 2021, c.15, from November 30, 2022 to November 30, 2024. As amended, the bill would extend by two years, until 11:59 P.M. on November 30, 2024, the time period during which certain restaurants, bars, distilleries, and breweries would be allowed to use a public sidewalk or outdoor spaces which they own or lease and are located either on or adjacent to their business premises as an area for the purpose of conducting food and beverage sales. Current law authorizing such uses expires on November 30, 2022. The bill would also provide that the use of tents, canopies, umbrellas, tables, chairs, or other fixtures be deemed a permitted use for the time period from the first day of April through the close of business on November 30 for each additional year in which this law is in effect. Any administrative rule or regulation that limits the use of these fixtures to 180 days or less would be inapplicable during the effective time of the law. Any administrative rule or regulation governing the use of outdoor fixtures on private or public property, or right of way designated by a municipality, between the...

NJDEP Issues Rule Proposal Implementing Environmental Justice Legislation

On June 6, 2022, the New Jersey Department of Environmental Protection (NJDEP) issued its proposed rule (“Rule Proposal”) implementing regulations under the groundbreaking Environmental Justice Law (“EJ Law”) signed by Governor Phil Murphy in September of 2020, which we reported on at that time. The EJ Law requires the NJDEP to evaluate the environmental and public health impacts of certain facilities on vulnerable communities (referred to as Overburdened Communities (“OBCs”)) when reviewing certain permit applications. We also reported that on October 22, 2020, the NJDEP began the public process of developing regulations to implement the requirements under the EJ Law. The Rule Proposal was the culmination of an extensive and lengthy public process that included numerous meetings with various stakeholders. The next step is a 90-day public comment period expiring on September 4, 2022, during which time the NJDEP will hold four public hearings in the month of July. In the EJ Law, the Legislature had determined that all residents of the state of New Jersey, regardless of income, race, ethnicity, color, or national origin, have a right to live, work, learn, and recreate in a clean and healthy environment. The Legislature further found that the OBCs have been, and continue to be, subject to a disproportionately high number of environmental and public health stressors,...

NAIOP-NJ’s Public Policy Symposium

Gibbons P.C. is proud to serve as Event Sponsor for NAIOP-NJ’s Public Policy Symposium, on March 23, 2022 at the Carpenters Apprentice Training Center in Edison, NJ. We hope that you can join us and the greater NAIOP-NJ membership as we hear from the new Senate and Assembly leadership teams, along with the Mayors of Newark and Paterson, and the development community as they discuss how to keep New Jersey prosperous and growing. To register: NAIOP New Jersey – Public Policy Symposium (1 Credit) (wildapricot.org).

NJDEP Unveils Resiliency Planning Toolkit

On February 2, 2021, Governor Phil Murphy signed P.L. 2021 c. 6, which requires municipalities to incorporate assessments of climate change hazards into Master Plan Land Use Elements adopted after its enactment. No doubt many municipal officials, faced with tight budgets and heavy obligations, greeted this news with trepidation. However, the New Jersey Department of Environmental Protection (NJDEP) has come to the rescue with an extensive and well-designed online toolkit. The launch of the toolkit was announced by NJDEP Commissioner Shawn LaTourette on June 10 at the New Jersey Planning and Redevelopment Conference. The toolkit provides detailed guidance to assist communities in developing and implementing public processes to assess local vulnerabilities and create strategies to address them. It provides step-by-step procedures for creating teams to engage local stakeholders in defining their vision and developing plans to gather data, assess vulnerabilities, and develop strategies. Each section of the toolkit provides useful training modules, prototype documents and templates, and links to critical informational resources. The final section assists in tracking progress and contains links to federal and state sites providing information on funding and financing options. The toolkit is comprehensive, flexible, and user-friendly. It will be invaluable to municipalities in meeting their statutory obligations. It also provides a valuable model for other states, regional planning agencies, and...

No, That Doesn’t Settle It: U.S. Supreme Court Clarifies Which Types of Settlements Trigger CERCLA Contribution Rights

The complex and overlapping nature of the three different routes to recovering cleanup costs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) has bedeviled courts for decades. This month, in Territory of Guam v. United States, the U.S. Supreme Court answered one very narrow question: What kind of a settlement with the government gives a settling party the right to bring an action for contribution against a non-settlor?

NJDEP Amends Site Remediation Standards

Via a New Jersey Register notice published on May 17, 2021, the New Jersey Department of Environmental Protection (NJDEP) has amended the remediation standards that govern all cleanups in the state. It is the most sweeping revision of the standards since they were first adopted in 2008. NJDEP proposed the amendments in April 2020 and held a virtual public hearing on July 21, 2020. During an extended public comment period, NJDEP received more than 270 public comments on its proposal. The proposal itself was preceded by a series of stakeholder sessions stretching back to 2014. The rulemaking makes significant changes to the remediation standards, including: The creation of separate residential and non-residential soil remediation standards for the ingestion-dermal and inhalation exposure pathways; formerly, the applicable standard was the more stringent of the two, but now both pathways will need to be considered. The adoption of new soil remediation standards for the migration to groundwater exposure pathway, replacing the former site-specific approach based on NJDEP guidance with enforceable standards. The adoption of new standards for soil leachate (for the migration to groundwater exposure pathway) and indoor air (for the vapor intrusion exposure pathway); the vapor intrusion standards replace the former screening levels based on NJDEP guidance. The tightening of some standards and the loosening of others....