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”).
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.”
While most people think of municipal courts as resolving motor vehicle tickets and minor property disputes, the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) has been using the municipal court system for several years to enforce violations of laws and regulations relating to the investigation and remediation of contaminated sites in New Jersey pursuant to its “Municipal Ticketing Initiative.”
At an October 25th press conference, New Jersey Attorney General Gurbir Grewal and New Jersey Department of Environmental Protection (“NJDEP”) Commissioner Catherine McCabe announced the filing of six new lawsuits that, in their words, “target polluters in minority and lower-income communities across New Jersey.” These six cases—relating to contaminated properties in Newark, Camden, Kearney, East Orange, and Trenton, the site of two cases—are the second salvo in NJDEP’s ongoing program to target its enforcement in lower-income areas.
A person who previously owned contaminated real property is not liable for investigation and remediation costs solely as a result of its status as a prior owner of the property, according to a New Jersey trial court. NJDEP v. Progress Petroleum of Phillipsburg, Inc., Docket No. WRN-L-370-18 (Law Div. April 23, 2019). This decision is a blow to the New Jersey Department of Environmental Protection (“NJDEP”), as it has sought to impose liability on prior owners of contaminated property in several recent enforcement actions, but also serves as a beacon of hope for prior owners of contaminated real property that did not cause or contribute to the contamination.
Certain business transactions involving property in New Jersey now risk facing expanded environmental obligations if the parties do not follow an administrative policy that has been quietly revised by the New Jersey Department of Environmental Protection (“NJDEP”). The environmental obligations at issue arise under the New Jersey Industrial Site Recovery Act (“ISRA”), which requires owners and/or operators of “industrial establishments” in New Jersey that cease operations or undergo a transfer of ownership or operational control to conduct an environmental review of and, if necessary, remediation of the industrial establishment prior to closing the transaction.