NJDEP’s Common Law Natural Resource Damage Claims Are “Back in Business” Once Again as Defendants Now May Face Jury Trials

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.’” 

Governor Murphy Launches Broad Regulatory Reform to Protect Against Climate Threats

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”). 

NJDEP Issues New Guidance on Earning Adjustments to Direct Oversight Requirements

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.” 

New Jersey Appellate Court Blesses Municipal Court Review of Environmental Liability

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.” 

NJDEP Continues Environmental Justice Enforcement Efforts with Six New Lawsuits

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. 

New Jersey Court Finds Prior Ownership of Property Alone Does Not Trigger Environmental Liability

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. 

NJDEP Changes Policy for Applicability of the ISRA De Minimis Quantity Exemption

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.

The Devil Is in the Details (Or Lack Thereof): A Costly Lesson in Allocating Environmental Responsibility in Contracts

A seller of a car wash property located in North Bergen, New Jersey recently learned the hard way that its failure to understand the nature and magnitude of contamination found on its property, and to clearly define in a contract of sale the scope of its obligations associated therewith, can be quite costly.  In June, the Appellate Division of the New Jersey Superior Court upheld a trial court’s order directing the seller to fully remediate previously undiscovered environmental contamination at the property in accordance with its contractual obligations, which according to seller, was more than it had bargained for.