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.
There are extensive regulations in New Jersey governing businesses involved in the solid waste and recycling industries. Many people do not realize that it is a long and complicated process to become a fully-licensed solid waste transporter, facility or broker. And some do not realize that they cannot conduct a solid waste business in the State of New Jersey until the process is completed.
The New Jersey Board of Public Utilities (“NJBPU”) is currently accepting applications for “community solar” projects as part of its Community Solar Energy Pilot Program (the “Community Solar Program”). Community solar projects include solar installations owned and operated by a community as well as installations owned and operated by a third-party that shares electricity with a community.
Since taking office last year, New Jersey Governor Phil Murphy has sought to place concerns about environmental justice in the foreground of New Jersey’s regulatory decision-making process. Advocates and policymakers long have maintained that locally undesirable or polluting land uses disproportionately are located in low-income, typically urban communities that lack political influence or sufficient resources to protect their interests.
Regulation of stormwater in New Jersey is undergoing a shakeup that may have significant consequences for redevelopers and property owners. In fact, New Jersey recently enacted legislation that allows municipalities to create stormwater utilities. This legislation, which has been called a “rain tax,” authorizes these utilities to impose fees and take other actions to control stormwater. The New Jersey Department of Environmental Protection also recently proposed changes to the regulations governing stormwater management in connection with certain construction projects.
In a move that has assuredly grabbed the attention of the regulated community, the New Jersey Department of Environmental Protection (“NJDEP”) recently commenced two major initiatives in an effort to further address the emerging, hot-button issue of poly- and perfluoroalkyl substances (“PFAS”) contamination in the state.
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.
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.
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?
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.