New York Expands Requirement to Investigate Emerging Contaminants

New York began last year to require remediating parties to investigate whether groundwater at their sites was contaminated with the emerging contaminants 1,4-dioxane and PFAS (i.e., per- and polyfluoroalkyl substances).  (See our May 29, 2018 Blog Article – NYSDEC Requiring Site Owners to Investigate Emerging Contaminants.)  Now, the New York State Department of Environmental Conservation is broadening this requirement by mandating investigation of the presence of these contaminants in all environmental media, not just groundwater. 

Recent Third Circuit Decisions Help Define Contours of CERCLA Liability

The United States Court of Appeals for the Third Circuit recently handed down two noteworthy decisions on environmental liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).  One involves the appropriate methodology for allocation of cleanup costs between two responsible parties based on equitable factors; the other involves whether a new owner of contaminated property is responsible for governmental response costs incurred prior to its purchase of the relevant property.  Both set new precedent that should be of interest to the regulated community.

WOTUS Proposal Would Reduce Waters Subject to Federal Regulation

The newly proposed definition of the Waters of the United States (“WOTUS”) may clarify what water features are federally regulated under the Clean Water Act, but, if adopted, it is sure to spark further litigation.  On December 11, 2018, the United States Environmental Protection Agency (“USEPA”) and the Army Corps of Engineers (“Army Corps”) proposed the much-anticipated revised definition of WOTUS, which establishes the jurisdictional reach of the Clean Water Act.  

NJ Appellate Division Finds NJDEP Policy and Guidance Unenforceable

New Jersey courts will prevent regulators from enforcing requirements through guidance that have not been formally adopted through appropriate rulemaking.  Just recently, the Appellate Division of the New Jersey Superior Court determined that the NJDEP wrongfully imposed penalties on a radon testing company for failing to comply with certain agency policies and guidance that had not been promulgated through the rulemaking process prescribed by the Administrative Procedure Act (“APA”).

Lessons from NJDEP’s Recent Enforcement Actions

The State of New Jersey ratcheted up its environmental enforcement activities earlier this year with the filing of six lawsuits seeking to recover environmental damages, as we previously reported in There Is A New Sheriff In Town – State Files Six New Environmental Enforcement Cases.  While we wait for these lawsuits to move forward, one question remains: If “there is a lesson in everything,” as a wise man once said, what lessons are to be learned from the filing of these suits? 

Past NRD Cases Highlight Vulnerability of Future Claims

The New Jersey Department of Environmental Protection (“NJDEP”) filed three lawsuits seeking Natural Resource Damages (“NRD”) in August 2018.  In these lawsuits, which are NJDEP’s first in eight years, NJDEP is seeking damages for injury to groundwater, sediments, surface water, wetlands and biota.  Given the amount of time that has passed since the last NRD case was filed by the State, a review of where we left off may be helpful to understand the hurdles NJDEP will continue to face with respect to NRD and the defenses that potentially responsible parties may assert when presented with an NRD claim.

New Jersey Takes the Lead in Setting Drinking Water Standard for PFNA

The New Jersey Department of Environmental Protection (“NJDEP”) continues to take action on emerging contaminants, and, as of September 4th, adopted a maximum contaminant level (“MCL”) for perflourononanoic acid (“PFNA”) in drinking water.  PFNA is not regulated at the federal level, and New Jersey is the first state to set an enforceable standard for PFNA in drinking water.  The new MCL is 0.013 micrograms per liter, that is, 13 parts per trillion, an extraordinarily low level. 

EPA Proposes Shift in Clean Energy Policy

States are going to have a greater role in setting energy policy under the United States Environmental Protection Agency’s (“EPA”) proposed Affordable Clean Energy (“ACE”) Rule.  EPA proposed the ACE Rule to replace the Obama Administration’s Clean Power Plan (“CPP”), which never took effect due to legal challenges.  Unlike the CPP, where the EPA set standards and requirements for state plans, the newly proposed ACE Rule tasks the States with a larger role in pursuing clean power and addressing pollution from existing coal power plants, invoking mixed emotions from various sectors of the community.

NJDEP Adopts Amendments to Site Remediation Rules and Initiates New Program for Remediation of “Heating Oil Tank Systems”

Contaminated site remediation projects in New Jersey are governed by an assemblage of rules and regulations that implement the State’s environmental statutes.  Just last week, the New Jersey Department of Environmental Protection (“NJDEP”) adopted amendments to a number of these rules.  While the NJDEP has characterized the amendments as changes that will clarify the rules and further streamline the implementation of the site remediation program, there are a number of noteworthy revisions that modify existing remediation obligations and procedures.