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”). 

New Jersey Expands Solid Waste Licensing Regime to Soil and Fill Recyclers

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.

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. 

Deceptive Environmental Marketing? Recent Challenges to Advertisements for “Recyclable” and “Compostable” Coffee Pods

Companies often market products and services as having an environmental benefit, such as being compostable, recyclable, or made with renewable energy or materials.  Businesses that make these types of claims in marketing materials need to ensure that the claims are accurate and not deceptive or misleading.  While claims involving environmental benefits are subject to both state and federal law, the touchstone in this area is the Federal Trade Commission Act and the “Green Guides” established by the Federal Trade Commission (“FTC”) pursuant to its authority under the Act. 

Expanded A-901 Requirements Coming Soon? Sales Persons, Consultants and Soil Recyclers Should Prepare

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.