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.
Recently, the New Jersey Department of Environmental Protection (“NJDEP”) issued guidance regarding the regulatory and mandatory timeframes for the submission of a remedial action report pursuant to the Technical Requirements for Site Remediation and the Administrative Requirements of the Remediation of Contaminated Sites. The guidance is meant to assist persons responsible for conducting the remediation (“PRCR”) in determining when remedial action reports are due, when to request an extension of the regulatory and mandatory deadlines for submission of such reports and in what situations the NJDEP will consider such an extension.
The Site Remediation Reform Act (“SRRA”) authorizes Licensed Site Remediation Professionals (“LSRPs”) to oversee the remediation of contaminated sites, including selecting and implementing appropriate remedial actions based upon their own professional judgment. However, if the party responsible for conducting remediation fails to complete the cleanup within mandatory timeframes, and in other limited circumstances, the SRRA authorizes the New Jersey Department of Environmental Protection (the “NJDEP” or “Department”) to undertake “Direct Oversight” of the work.
Riker Danzig’s Environmental Practice has again been honored with a Band 1 ranking in the Chambers USA Guide this year. Our group has been consistently ranked in the top tiers of Chambers USA since the publication’s inception and in “Band 1” since 2010. Many of our environmental attorneys are also recognized individually in the Guide.
Last month the New Jersey Supreme Court held that the State of New Jersey does not have cleanup liability for its actions that pre-date the 1977 enactment of the New Jersey Spill Compensation and Control Act (the “Spill Act”). NL Industries, Inc. v. State of New Jersey, (A-44-15)(076550)(Sup. Ct., March 27, 2017).
The New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) Site Remediation Program (“SRP”) has been experimenting in recent years with expedited enforcement proceedings utilizing its “Municipal Ticketing Initiative.” Through the Municipal Ticketing Initiative, NJDEP issues “tickets” for certain obvious violations of the Site Remediation Reform Act, primarily including the failure to retain a Licensed Site Remediation Professional.
In a recent decision, the Appellate Division upheld a Chancery Division injunction ordering five neighboring condominium owners to share the costs of investigating a discharge before the plaintiff condominium owner could demonstrate which, if any, of its neighbors contributed to the contamination. Matejek v. Watson, Docket No. A-4683-14 (App. Div. Mar. 3, 2017).
The New Jersey Appellate Court recently found that a responsible party cannot rely solely upon previously issued No Further Action (“NFA”) letters from the New Jersey Department of Environmental Protection (“NJDEP”) when complying with a new trigger under the Industrial Site Recovery Act (“ISRA”).