During the Obama Administration, the United States Environmental Protection Agency (“USEPA”) revised the Clean Water Act definition of Waters of the United States (“WOTUS Rule”) to broaden (to some overly so) federal protection of certain waterbodies. The WOTUS Rule sparked numerous lawsuits in a number of federal District Courts and Courts of Appeals.
In November 2017, the New Jersey Department of Environmental Protection (“NJDEP”) set the lowest limits in the country for perfluorooctanoic acid (“PFOA”) and perfluorononanoic acid (“PFNA”) in drinking water (See our November 8, 2017 Blog Article – NJDEP to Adopt Strict Standards for PFOA and PFNA in Drinking Water).
In a case before the United States District Court for the District of New Jersey, the New Jersey Department of Environmental Protection (“NJDEP”) seeks to recover natural resource damages (“NRD”) from a number of gas station defendants (the “Gas Station Defendants”) for the alleged discharge of Methyl Tertiary Butyl Ether (“MTBE”) into the groundwater at five gas station sites in northern and central New Jersey. NJDEP v. Amerada Hess Corp., Docket No. 15-6468 (Nov. 1, 2017).
The Appellate Division of the Superior Court of New Jersey recently upheld a provision in an environmental services contract that reduced the time to bring a claim under the contract to one year. Elar Realty Co. v. Environmental Risk Limited, Docket No. A-2201-15 (N.J. App. Div. Oct. 11, 2017). As a result, the property owner was unable to bring a claim against its environmental contractor for deficient work in performing remediation.
On November 1st, New Jersey Department of Environmental Protection (“NJDEP”) Commissioner Bob Martin announced that the Department would move forward with adopting strict drinking water standards for two emerging contaminants that studies have linked to adverse health effects. According to NJDEP’s press release, New Jersey will become the first state to formally adopt Maximum Contaminant Levels (“MCLs”) requiring statewide testing of public drink water systems for perfluorooctanoic acid (“PFOA”) and perfluorononanoic acid (“PFNA”).
The New York State Department of Environmental Conservation (“NYSDEC”) recently revised its solid waste management regulations, the first significant changes since 1993, reorganizing the existing rules and revising requirements for solid waste landfills, waste transporters, beneficial use determinations (“BUD”), and reuse of fill material, construction and demolition (“C&D”) debris and wastes generated from oil and gas production.
On September 18th, the New Jersey Department of Environmental Protection (“NJDEP”) revised its soil remediation standards for eighteen contaminants in response to new toxicology studies by the U.S. Environmental Protection Agency. The revised standards became effective immediately; however, completed or nearly completed cleanups may be exempt from complying with certain of the new, more stringent standards in particular situations.
In September, the Appellate Division determined that the current corporate owner of property qualified for an innocent party grant, which provides remediation funding to pre-1983 purchasers of contaminated property who did not cause the contamination, even though that entity did not obtain title to the property until 2006. Cedar Knolls 2006, LLC v. New Jersey Department of Environmental Protection, Docket No. A-1405-15T3 (Sept. 20, 2017).
New Jersey formally joined the national conversation regarding food waste earlier this summer, but the specifics of how food waste will be regulated in New Jersey are not yet clear. In 2015, the United States Environmental Protection Agency (“EPA”) announced an initiative to cut domestic food waste in half by 2030 and many states across the country have their own initiatives to reduce food waste. On July 21, New Jersey Governor Chris Christie signed legislation adopting the EPA’s goal of cutting the amount of food waste in New Jersey in half by 2030.
In Town of Islip v. Datre, --- F. Supp. 3d ----, 2017 WL 1157188 (E.D.N.Y. Mar. 28, 2017), the Eastern District of New York held that a defendant alleged to have “arranged for disposal or treatment … of a hazardous substance” must have had actual or constructive knowledge that the substance was hazardous in order to be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). 42 U.S.C. § 9607(a)(3). While the Supreme Court’s seminal case on arranger liability, Burlington Northern & Santa Fe Railway v. U.S., carved out an exception to liability based on the defendant’s intent in entering the transaction (i.e., to sell a useful product vs. to dispose of a waste), Datre expands the exception to CERCLA liability based on the defendant’s knowledge of the nature of the waste.