Tagged: Regulations

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...

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...

U.S. Supreme Court Significantly Limits Scope of Federal Government’s Jurisdiction Under the Clean Water Act

On Thursday, May 25, 2023, the U.S. Supreme Court handed down a decision in Sackett v. EPA, a closely watched case concerning the jurisdictional reach of the federal government’s ability to regulate sources of pollution under the Clean Water Act (CWA). Specifically, the Court addressed the test for determining whether wetlands are “waters of the United States” within the scope of the CWA. The CWA prohibits the discharge of pollutants into “navigable waters,” which the CWA defines as “the waters of the United States.” The definition has been the subject of numerous cases and interpretations, most recently in the 2006 Supreme Court decision in Rapanos v. United States, which created multiple tests for what constituted “waters of the United States.” The majority in Sackett has created a single, much narrower test. The background of Sackett v. EPA dates back to 2007, when plaintiffs Michael and Chantell Sackett began backfilling their property with dirt and rock, about 300 feet from Priest Lake. The Sacketts received a notice from the U.S. Environmental Protection Agency (EPA), which instructed the Sacketts to stop work because of the presence of wetlands protected by the CWA, which bars the discharge of pollutants, including rocks and sand, into “waters of the United States.” The EPA reasoned that the wetlands on the Sacketts’...

Governor Murphy Announces First-in-the-Nation Environmental Justice Rules

On Monday, April 17,  2023, New Jersey Governor Phil Murphy announced the adoption of the New Jersey Department of Environmental Protection’s (DEP) Environmental Justice Rules (EJ Rules) implementing New Jersey’s landmark Environmental Justice (EJ) Law signed in 2020. The EJ Law and implementing rules are the first in the nation aimed at reducing pollution in historically overburdened communities that have been subjected to a disproportionately high number of environmental and public health stressors. In his announcement, Governor Murphy stated, “As we enter Earth Week 2023, the final adoption of DEP’s EJ Rules will further the promise of environmental justice by prioritizing meaningful community engagement, reducing public health risks through the use of innovative pollution controls, and limiting adverse impacts that new pollution-generating facilities can have in already vulnerable communities.” DEP Commissioner Shawn M. LaTourette added that, “With the adoption of the nation’s first EJ Rules, New Jersey is on a course to more equitably protect public health and the environment we share.” Under the new rules, which are effective immediately, state environmental officials considering permit requests of eight specific types of facilities must include impacts to residents of affected communities in their decision-making process. The eight types of facilities that must comply with the new EJ Rules are: gas-fired power plants, cogeneration facilities, and other...

2023 Is Shaping Up to Be a Big Year for the Clean Water Act and Its “Waters of the United States”

In January, the Biden Administration promulgated the federal government’s latest rule defining “waters of the United States” (WOTUS Rule). The WOTUS Rule, which defines the waters that are subject to federal permitting and oversight under the Clean Water Act (CWA) by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE), went into effect on March 20, 2023. As with past attempts to define “waters of the United States,” the new WOTUS Rule is already triggering legal challenges. Since the enactment of the CWA in 1972, 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.” 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.” The Biden Administration’s WOTUS Rule replaces the Trump Administration’s Navigable Waters Protection Rule (NWPR), which was promulgated in 2020 but subsequently vacated by two federal district courts. The NWPR followed the Trump Administration’s 2019 repeal of a 2015 Obama Administration rule (the 2015 Clean Water Rule) that had taken a categorical approach to defining “waters of the United States.” The Biden Administration’s WOTUS Rule seeks to return to...

EPA Amending Standards for Phase 1 Environmental Site Assessments

The United States Environmental Protection Agency (USEPA) is set to amend the All Appropriate Inquiries Rule (AAI Rule), the standard for evaluating a property’s environmental conditions prior to purchase, which may impact a purchaser’s potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for any contamination discovered at the property. Those affected by this amendment include both public and private parties who are purchasing potentially contaminated properties and wish to establish a limitation on CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent landowners. In addition, any entity conducting a site characterization or assessment on a property with funding from a brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii) may be affected by this action. The AAI Rule first went into effect in 2006 and has been subject to amendments since that time. The current amendments will become effective on February 13, 2023, and will reference a new standard – “ASTM E1527-21” – that may be used to satisfy the requirements for conducting all appropriate inquiries under CERCLA. Significant changes within the new standard include, but are not limited to: Revised and new definitions to make requirements clearer than the prior 2013 standard Requirements for more specific information related to the subject property’s use, as well as historical research related...

New Jersey Adopts Private Construction Inspection Bill

On January 5, 2023, New Jersey Governor Phil Murphy signed into law Assembly Bill 573, which authorizes private inspections under the State Uniform Construction Code (UCC) Act, upon the satisfaction of certain conditions (the “Act”). The New Jersey Department of Community Affairs (DCA) now has six months to propose rules to effectuate the provisions of the Act and three months thereafter to adopt those rules. The Act is a result of efforts throughout the commercial real estate industry to address the growing shortage of available municipal code inspectors and recent increased demand for inspections due to the high frequency of construction activity throughout the state, as well as an ongoing backlog due to COVID-19 staffing shortages. There is consensus within the industry that the processes codified within the Act will minimize project disruptions and delays and create a more streamlined construction inspection process, in order to expedite the timely construction and occupancy of inclusionary housing and non-residential development alike. The Act creates a new process by which private inspectors can perform required construction inspections under the UCC. Once work undertaken pursuant to a construction permit is ready for any required inspection under the UCC, the owner, agent, or other person in charge of the work (collectively, the “Owner”) shall notify the enforcing agency (presumably the...

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,...