In August 2018, the New Jersey Department of Environmental Protection (“NJDEP”) declared that environmental enforcement was “back in business” and brought its first new litigation seeking natural resource damages (“NRD”) in ten years. Loyal readers of this blog will recall that we reported in 2019 on a trial court decision that dismissed the Department’s common law claims for NRD related to a former Hess oil refinery and terminal and discussed NJDEP’s pending appeal of the decision: “NJDEP’s Common Law Natural Resource Damage Claims Temporarily ‘Out of Business.’”
Recently, the Justice Department eliminated the use of supplemental environmental projects (“SEPs”) in United States Environmental Protection Agency (“USEPA”) settlements. SEPs, environmentally beneficial projects implemented by a regulated entity, are not required by law but have been used for years to allow an entity to lower its penalty for a violation of environmental law.
On April 6th, the New Jersey Department of Environmental Protection (“NJDEP”) proposed major revisions to the existing Remediation Standards codified at N.J.A.C. 7:26D that may impact current, future and even closed site remediation cases.
New Jersey and many other states continue to issue directives outlining which businesses may continue to operate during the COVID-19 pandemic. The swiftly changing landscape is uncharted and difficult to navigate; this is especially true for parties involved in site remediation, either as a remediating party or as the environmental consultant or Licensed Site Remediation Professional performing the remedial work.
In response to the COVID-19 pandemic, the United States Environmental Protection Agency (“USEPA”) has decided to exercise enforcement discretion. That is, USEPA will review any violations and determine if they result from the pandemic; if so, USEPA will decide the proper enforcement action, if any. See USEPA Memorandum, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, dated March 26, 2020 (the “Policy”).
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) has been a prodigious generator of litigation for decades. First, the government sought to compel potentially responsible parties (“PRPs”) to clean up contaminated sites. Then, those PRPs who were found liable or who settled with the government sought contribution from other PRPs.
Last year, the New Jersey Department of Environmental Protection (“NJDEP”) proposed significant changes to the State’s Stormwater Management Rules, N.J.A.C. 7:8 et seq. (the “SWMR” or “Rules”) that set forth standards and requirements for the management of stormwater runoff associated with major developments. On March 2, 2020, the amendments to the SWMR were adopted with only minor, non-substantive revisions to the original proposal.
Governor Phil Murphy took a groundbreaking step toward reducing greenhouse gas emissions and addressing climate change threats in New Jersey, when, on January 27, 2020, he simultaneously unveiled the final version of the updated Energy Master Plan (the “EMP”) and signed Executive Order No. 100 (“EO 100”). As discussed below, the EMP charts a course for achieving Murphy’s goal of 100% clean energy by 2050, while EO 100, among other things, directs the New Jersey Department of Environmental Protection (“NJDEP”) to immediately begin developing regulatory reforms to address sea level rise and other climate change threats under the banner, Protecting Against Climate Threats (“PACT”).
Update as of May 2, 2020: Through Executive Order 136, Governor Murphy has extended the deadlines applicable to soil and fill recycling registrations and licenses as recited in this blog post by the number of days of the Public Health Emergency declared in Executive Order No. 103 as a result of the COVID-19 pandemic plus an additional 60 days.
New Jersey continues to crack down on illegal dumping of contaminated soil by increasing regulation of soil and fill recycling businesses. A law signed into effect by Governor Murphy on January 21, 2020, requires soil and fill recycling businesses to go through the A-901 solid waste licensing program, which was adopted many years ago in response to the infiltration of organized crime into the solid waste business, and ensures through an in-depth licensing regime that those engaged in the business of solid waste in New Jersey have the requisite integrity, reliability, expertise and competence.
The Site Remediation Reform Act (“SRRA”) authorizes responsible parties to retain Licensed Site Remediation Professionals (“LSRPs”) to oversee the remediation of contaminated sites. However, if the person responsible for conducting remediation (“PRCR”) fails to complete the investigation and remediation within mandatory timeframes, the New Jersey Department of Environmental Protection (the “NJDEP” or “Department”) automatically places the site into “Direct Oversight.”