Tagged: Regulations

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...

Back to the Future, or Forward to the Past? EPA and Army Corps of Engineers Release New Clean Water Act New Rule Revising Definition of “Waters of the United States”

Ever since the enactment in 1972 of the modern Clean Water Act (a comprehensive amendment of the 1948 Federal Water Pollution Control Act), 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.” Landowners often confront this issue because 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,” which includes some, but not all, areas that scientists would deem to be wetlands. In December, the U.S. Environmental Protection (EPA) and the U.S. Army Corps of Engineers (Corps) released the latest chapter in this five-decade-long saga, in the form of a new 514-page rule defining “waters of the United States” (WOTUS). The rule was officially promulgated via publication in the Federal Register on January 18, and will become effective 60 days later. The new WOTUS rule is the product of a rulemaking process spurred by a January 2021 executive order signed by President Biden that directed all agencies to review regulations and take appropriate action to address those that might conflict with policies of science-based decision-making. (86 Fed. Reg. 7037 (Jan. 25, 2021)). It replaces the Trump...

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,...

NYSDEC Commissioner Directs Agency to Investigate PFAS Contamination in Consumer Products

New York State Department of Environmental Conservation (NYSDEC) Commissioner, Basil Seggos, announced last week that he is directing the Department to conduct a new investigation of potential per- and polyfluoroalkyl substances (“PFAS”) contamination in consumer products. PFAS have been designated as chemicals of emerging concern by the U.S. Environmental Protection Agency (EPA). Specifically, Commissioner Seggos has directed the Department to “take a hard look at new science shared by the U.S. Environmental Protection Agency about potential PFAS contamination in consumer products, including insecticides, pesticides, and other crop protectant products packaged in fluorinated high-density polyethylene (‘HDPE’) containers.” Earlier this month, the EPA had issued a press release that stated, “the agency has determined that fluorinated HDPE containers that are used to store and transport a mosquito control pesticide product contain PFAS compounds that are leaching into the pesticide product.” The EPA press release that triggered the Commissioner’s directive announced the EPA’s investigation into companies that use fluorinated containers and companies that provide container fluorination services, in an effort to identify potential sources of contamination. The directive from Commissioner Seggos is the latest in a line of actions taken by New York to address PFAS contamination, including a statewide investigation of potential sources of PFAS and the establishment of drinking water maximum contaminant levels for two PFAS...

USEPA Provides Draft Guidance on Application of “Functional Equivalent” Analysis for Clean Water Act Permitting Program

The United States Environmental Protection Agency (USEPA) issued a Draft Guidance Memorandum regarding how to apply the Supreme Court’s most recent Clean Water Act decision in County of Maui v. Hawaii Wildlife Fund from earlier this year. In that case (which we previously wrote about here and here), the Court held that the Clean Water Act Section 402 National Pollutant Discharge Elimination System (NPDES) program requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” As the USEPA draft guidance notes, the Court’s decision outlines “seven non-exclusive factors that regulators and the regulated community may consider in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. The draft guidance aims to place the functional equivalent standard “into context within existing NPDES permitting framework.” Additionally, the draft guidance “identifies an additional factor” relevant to the analysis. The draft guidance emphasizes that the County of Maui decision did not modify the two threshold conditions that trigger the requirements for a permit. These conditions are that there must be an actual discharge of a pollutant to a water of the United States, and that that discharge must be from a point source. “Instead, Maui clarified that an NPDES permit is required for only...

NJDEP Solicits Input as It Begins Process of Drafting Regulations to Implement Landmark Environmental Justice Legislation

As we reported, New Jersey Governor Phil Murphy recently signed the nation’s first environmental justice law, which seeks to address the unfair distribution of the environmental and public health impacts of polluting activities by imposing additional requirements on parties seeking to site, expand, or renew permits for various types of facilities in “overburdened communities,” which are defined in the statute in terms of economic and demographic criteria. The statute requires the New Jersey Department of Environmental Protection (NJDEP) to promulgate regulations to implement its requirements. NJDEP began the public process of developing those regulations on October 22 when Olivia Glenn, Deputy Commissioner for Environmental Justice and Equity, and Sean Moriarty, Chief Advisor for Regulatory Affairs, hosted an online public information session in which they sought the public’s input on how the regulations should address numerous definitional and procedural issues. (The statute will not take effect until NJDEP promulgates its regulations.) Companies seeking to obtain or renew certain NJDEP permits for new or expanded facilities that fall within the statute’s scope and are located in overburdened communities must prepare an “environmental justice impact statement” and provide for expanded public hearings on their project. In addition to applying the requirements of other applicable statutes and regulations, NJDEP must then determine if the proposed new or expanded facility...

Insurer Alleges Pollution Policy Void Because of Policyholder’s Failure to Disclose

AIG Specialty Insurance Co. (“AIG”) recently asserted in a New Jersey Federal District Court Complaint that it owes no coverage to Thermo Fisher Scientific Inc. (“Thermo Fisher”) for cleanup costs associated with contaminated groundwater at a facility owned by Thermo Fisher in Fair Lawn, New Jersey. The crux of AIG’s claim is the fact that Thermo Fisher failed to disclose to AIG that the company had been monitoring groundwater pollution at its site for nearly three decades. AIG alleges the existence of two consent orders relating to groundwater contamination at the site and, more specifically, the presence of PFAS, so-called “forever chemicals” detected in a wellfield affected by the site. Both of these consent orders were in existence when Thermo Fisher sought a pollution liability policy with AIG. AIG asserts that Thermo Fisher either knew or should have known about the groundwater pollution conditions at its facility and the claims against the facility by the United States Environmental Protection Agency (“EPA”) prior to seeking the pollution liability policy at issue, facts that should have been disclosed in the application. AIG alleges that Thermo Fisher’s failure to disclose these consent orders and the fact that the Thermo Fisher plant was part of a Superfund site is sufficient to trigger a number of exclusions in the pollution...

New Jersey Governor Signs Environmental Justice Legislation

On September 18, 2020, New Jersey Governor Phil Murphy signed legislation intended to address the disproportionate environmental and public health impacts of pollution on overburdened communities. The legislation, versions of which have been proposed several times over the past decade, imposes additional requirements on companies seeking permits for new or expanded facilities under a variety of environmental statutes. It also requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate how the proposed permitted activities would impact those communities determined to be “overburdened” under the new law. Earlier this summer, marking the “Juneteenth” anniversary of the emancipation of slaves in the United States, Governor Murphy had indicated his support for the legislation, which some environmental advocates have dubbed the “holy grail” of the environmental justice movement. Although critics of the law raised concerns about its effect on manufacturing and business investment in New Jersey, the bill passed the state legislature in late August, with votes of 49-28-1 in the state Assembly and 21-14 in the state Senate. The types of facilities covered by the new law include certain power plants, incinerators, sewage treatment plants, solid waste facilities, and landfills, as well as other facilities deemed to be “major sources of air pollution” (as determined by the federal Clean Air Act). Governor Murphy stated that,...

NJ Governor Supports Additional NJDEP Permitting Requirements to Address Environmental Justice Concerns

On June 19, 2020, Governor Murphy announced his support for proposed legislation that would require the New Jersey Department of Environmental Protection (NJDEP), and permit applicants, to take additional steps prior to permits being issued for new or expanded facilities under a wide variety of state environmental statutes. The proposed legislation, which aims to protect those communities that historically have been most impacted by pollution from industrial and related activities, would require the NJDEP to publish and maintain a list of those communities determined to be “overburdened.” In the proposed legislation, “overburdened community” is defined as: “any census block group, as determined in accordance with the most recent United States Census, in which at least one half of the households qualify as low income households, and either: (1) at least 40 percent of the residents of the census block group identify as Black, African American, Hispanic or Latino, or as members of a State-recognized tribal community; or (2) at least 40 percent of the households in the census block group have limited English proficiency.” Prior to approval of covered permit applications, an applicant would be required to assess and prepare an environmental impact statement to outline both the existing environmental and health stressors already borne by the relevant community, as well as any additional impacts...

New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS

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...