Environmental UPDATE January 2003
- Environmental UPDATE January 2003
- January 1, 2003
- The January 2003 Riker Danzig Environmental UPDATE
- Area(s) of Practice:
- Environmental Law
In the Courts
New Stormwater Runoff Controls Proposed The New Jersey Department of Environmental Protection ("NJDEP") has proposed new rules designed to protect the state's vital water resources by reducing the pollution caused by stormwater runoff and encouraging groundwater recharge throughout the state. The proposal represents the first major update since the Stormwater Management Rules were first adopted in 1983.
The proposed rules represent a significant departure from NJDEP's traditional "end-of-the pipe" approach to managing stormwater runoff, where controls are designed to capture runoff immediately from the location of the precipitation in order to pipe it into storm drains, basins and then into a waterbody. The Department has now determined that the dramatic increase in developed lands makes these past practices insufficient to address the impacts of stormwater runoff on erosion, flooding, water quality and groundwater recharge.
The new proposed rules stress source reduction and pollution prevention through better site design. Builders of new major developments will now have primary responsibility to incorporate nonstructural stormwater management strategies during the design phase to prevent environmental disturbances. Nonstructural stormwater management strategies are features designed to reduce the volume of stormwater runoff, reduce erosion, encourage infiltration and groundwater recharge, and minimize discharge of pollutants that might affect stormwater quality. Some of the nonstructural management strategies proposed include:
- Protection of areas that have natural filtering properties or areas particularly nn susceptible to erosion and sediment loss, such as those near watercourse vegetationnn
- Minimization of impervious surfaces nn
- Protection of natural drainage features and vegetationnn
- Minimization of land disturbance activities, including clearing and gradingnn
- Minimization of soil compactionnn
- Incorporation of low maintenance landscaping and minimal use of lawns, fertilizers and pesticides
Another category of nonstructural stormwater management strategy is preventative site design features. Preventive controls are any features designed to prevent or minimize the use or exposure of pollutants at the site so as to prevent or minimize contact between those pollutants and stormwater runoff. Some examples of preventive source controls include features that prevent the accumulation of trash or debris in drainage systems, help prevent discharge of trash and debris from the drainage systems into the waterbody, and help prevent and/or contain industrial and commercial spills and pollutants. NJDEP anticipates that some of these preventive source controls also will be implemented as part of the post-construction management of the development or project.
The rules also propose new groundwater recharge performance control standards for major developments. There are two options for satisfying the new recharge performance standards. Under the first option, developers would have to maintain the same rate of recharge from post-construction development as occurred pre-construction. The second option requires a demonstration, through hydrologic and hydraulic analysis, that the difference between the stormwater runoff volume pre-construction and post-construction for a 2-year storm has been infiltrated.
The groundwater recharge performance standards are not applicable to projects qualifying as urban developments, which is consistent with the Governor's Smart Growth initiative to promote redevelopment in these areas. Additional waivers and limitations are applicable to the types of stormwater runoff that can be recharged. Specifically, the rules prohibit recharge from high pollutant loading areas - areas in industrial and commercial development - and industrial stormwater runoff exposed to "source material."
In addition to the recharge standards, the proposed regulations also address water quality controls. These regulations would require, as part of the site design, the reduction of post-construction total suspended solids ("TSS") by 80%, expressed as an annual average. With perhaps the exceptions of wet ponds and infiltration basins, the use of current strategies, such as extended detention basins, will not accomplish the 80% reduction alone. Therefore, the rules anticipate implementation of Best Management Practices ("BMP") to accomplish the necessary reduction. The TSS reduction standard will not apply to land that is expected to be deliberately, continuously and frequently disturbed after construction has ceased (e.g., mining). Instead, such areas will be controlled by applying the minimum standards for erosion control.
For Category One waters, which include some of the State's most vital streams, wetlands and reservoirs, the rules also provide for an increased buffer zone to prevent new point source discharges of stormwater into the waterway in order to preserve their pristine values. To protect Category One waters, the rules propose increasing the buffer zone around these areas from the current 50 feet to 300 feet. However, where developments or disturbances already have occurred, encroachment will be permitted provided that the "functional value and overall condition" of these waters can be "maintained to the maximum extent practicable." In any event, there can be no reduction of the special buffer zone to less than 150 feet.
In sum, the new rules propose non-structural stormwater controls intended to reduce the volume of stormwater that would need to be treated to achieve the NJDEP's water quality objectives and to provide final opportunities to naturally filter pollutants in runoff or flood waters. The impact of the rules will require innovative and sometimes costly technologies to accomplish their goals. In addition to implementation of BMPs, developers will be required to come up with their own creative solutions for balancing impervious areas with landscaping designs to promote groundwater recharge at a particular site. In addition, the regulations prohibit construction around pristine waterways, thus limiting new construction in these areas.
The official version of the proposed rules was published in the January 6, 2003 New Jersey Register with a two month comment period.
NJDEP recently proposed new brownfields policies and other changes to the site remediation program that are designed to reduce regulatory uncertainty and obstacles to redevelopment of brownfields and to expand potential reuses of brownfields in New Jersey. See Policy Directive 2002-003, Acceleration of Brownfields Cleanup and Reuse (November 25, 2002). The changes are significant and merit close attention. The new brownfields policy contains the following elements:
New Programs to Encourage Brownfields Redevelopment
Office of brownfields Reuse. NJDEP will establish a new program office to serve as the focal point for brownfields programs at NJDEP. The Office of Brownfields Reuse will provide support to developers seeking agency oversight, to affected communities where brownfields are located, and to NJDEP staff reviewing redevelopment proposals.
Area-wide Brownfields Reuse Program. NJDEP will establish a program to enable communities to plan comprehensively for the remediation and reuse of multiple brownfields sites. The first sites selected will be in Camden, Elizabeth, and Trenton.
- Cleanup Star Program. NJDEP will develop a certification program that will allow third-party environmental consultants to provide remediation oversight at low or moderate risk and less complex cleanups. The agency will identify pre-qualified environmental professionals and develop auditing requirements and safeguards for the program. These consultants would be retained by a responsible party but act at the direction of NJDEP to expedite remedial analysis, evaluation, and decisions.
- Brownfields to Greenfields. The Office of Brownfields Reuse will identify brownfields sites that may be used for residential development, local and regional parks, recreation areas and natural resource restoration.
- Zero Tolerance for "Warehousing." NJDEP will assist affected communities and use enforcement authority where industrial owners of contaminated sites have chosen to warehouse the property to avoid or delay remediation.
- atural Resource Damages. NJDEP will not assert liability for damages or compensatory restoration against non-liable brownfields developers for historical natural resource injury.
No Further Action Letters. NJDEP will issue No Further Action letters ("NFAs") for soils when remediation of soils is complete but groundwater contamination remains. NJDEP will issue NFAs for groundwater when a Classification Exception Area has been established and natural attenuation has been approved.
Site Remediation Proposals
- Expanding Use of Market Tools. NJDEP will encourage the use of financial market instruments to manage financial risks associated with complex, long-term cleanups. These may include sureties, insurance products, and trust fund mechanisms (a) to reduce uncertainty concerning costs of future remedial decisions, (b) to allow brownfields developers in areas where regional groundwater contamination exists to resolve their groundwater liability through establishment of a groundwater trust, (c) to ensure the reliability of institutional and engineering controls, and (d) to provide greater certainty that cleanups will be completed.
- Letting Developers Get to Closing. Certain remedial tasks, e.g., a well survey, potable well sampling and analysis, and a determination of groundwater flow direction, which are required during a site investigation to establish the innocent purchaser defense, may be conducted by brownfields redevelopers following closing of the transaction.
Technical Review Panel. NJDEP will establish a panel of senior NJDEP technical staff to expedite final cleanup decisions where action has been delayed by disagreements between brownfields developers (or other responsible parties) and NJDEP case managers.
Site remediation will be divided into two new divisions - the Division of Remediation Management and Response ("DRMR") under Tom Cozzi and the Division of Remediation Support ("DRS") under Marlen Dooley. All case managers will now be combined into the DRMR, rather than being separated according to the different statutes that bring sites into the remediation program, with the exception of publicly-funded cases and "anomalous" cases such as those involving the federal government, both of which will still operate separately. The complementary DRS will concentrate all financial, informational and administrative support functions in one place. DRMR case managers will henceforth be assigned regionally, in the south and in the north like the field offices, but only on a going-forward basis; no currently-assigned cases will be transferred simply because of this reorganization due to the unnecessary disruption and loss of institutional knowledge that would result. The goal is that case managers assigned by site location will develop a better understanding of related cases, similar geology and other connections between neighboring sites.
Van Hook felt that the primary shortcoming of the remediation program was the length of time it took to clean up sites, and challenged the regulated community to work with the Agency to improve efficiency. The regulators and the regulated share a common interest in efficient remediation, he said, and improvement would have to be a "two-way street." To that end, he specifically called for a "top ten list" of practical, noncontroversial suggestions for improvement that could promptly be implemented by the Department. It made sense, he felt, to gain some momentum with the "low-hanging fruit" before tackling the inevitable controversial issues which had to be addressed eventually, but not necessarily immediately.
Another impediment to efficient completion of site remediation is the difference between the needs of "tail-end cases," i.e., those which are essentially complete except for some long-term operation and monitoring or sampling and reporting requirements, and those of active cases which demand more immediate attention. Therefore, these different types of cases will now be managed in separate bureaus. In addition, Van Hook said that outside oversight, such as by Registered Site Professionals ("RSP"), might be appropriate for some less serious "B" cases where, for example, there was no groundwater impact or no change from industrial to residential land use. The RSP program would include robust criteria for registration, including testing, significant experience requirements, and continuing education. The program would also include stringent audit elements, including on-site inspections, split sampling and document review.
Oversight costs for "voluntary" sites are often less than half those for "mandatory" sites, in part due to the obstinate or dilatory conduct of some noncooperative parties. To discourage such delays and drains on Agency resources, Van Hook proposed an Office of Accountability and a six-point plan to promote responsible party accountability, including monetary penalties and the involuntary termination of Memoranda of Agreement by the Department for noncompliance. (See related story, following.)
Van Hook announced that Dr. Judy Shaw, formerly a staff scientist with NJDEP, will head the newly created Brownfields Office. The Brownfields Office will have three main functions: (1) to act as a "cheerleader" and publicize/solicit brownfields redevelopment; (2) to implement innovative approaches to brownfields redevelopment, and (3) to act as "Ã¼ber-case managers," by which Van Hook meant that only persons dedicated and receptive to brownfields redevelopment would supervise brownfields cases. Ironically, he noted that less complex sites often take longer to process because they are not given the attention and priority of more difficult ones. Van Hook pledged to make giving less serious sites a "clean bill of health" a priority of the Brownfields Office. Another function it will serve will be as a guide to community or grassroots groups who have the initiative but not the experience to know how to redevelop local brownfields.
Finally, Van Hook stated that, to the maximum extent possible, the site remediation process will not be modified to address Natural Resource Damages, which will continue to be addressed by the Agency's Office of Natural and Historic Resources, under Assistant Commissioner Mark Matsil.
NJDEP's objective is to minimize delays to the completion of site remediation by imposing strict project schedules and assessing penalties, including penalties against voluntary parties under an MOA, and for violations of the Oversight Rules or the Technical Requirements for Site Remediation, N.J.A.C. 7:26E ("Tech Regs"). If the proposal is adopted, NJDEP will, among other things: (1) terminate an MOA if the volunteer fails to make timely submissions, submits poor quality reports, or fails to pay NJDEP oversight costs; (2) assess penalties up to $5,000 per day for a party's failure to comply with project schedules, to give prior notice of the start of field work, to submit remediation reports that comply with the Tech Regs and the Agency's comments, or to comply with deed notices and use restrictions; (3) require that a remediation funding source be maintained for the life of engineering and institutional controls; and (4) collect oversight fees to cover indirect program costs and overhead expenses.In a case of first impression, the Appellate Division recently upheld the State's use of environmental reservation clauses in eminent domain proceedings. An environmental reservation clause preserves the State's right to recover the cost of hazardous substance removal and cleanup from the former owner of property acquired through eminent domain authority. In opposing such clauses, property owners argued that inclusion of an environmental reservation clause in the final eminent domain judgment precludes their ability to raise the defenses of res judicata, collateral estoppel and the entire controversy doctrine in subsequent cost recovery proceedings. Success of these preclusionary defenses would allow the final condemnation judgment to act as a bar to any after-discovered environmental contamination claim.
The Appellate Division analyzed the provisions of the Spill Compensation and Control Act ("Spill Act"), which immunize public entities from liability for discharges occurring or beginning on property prior to their ownership and which impose strict liability on property owners where discharges have occurred, providing landowners with only limited defenses. Finding that the Spill Act did not intend to immunize non-public entity landowners whose property is taken for a public purpose, the Appellate Division rejected the landowners' arguments as threatening the immunity conveyed upon public entities which acquire property through condemnation. The Appellate Division therefore upheld the environmental reservation clause which allows after-discovered claims to be raised without being barred by the principles of res judicata, collateral estoppel or the entire controversy doctrine. New Jersey Transit Corporation v. Cat in the Hat, LLC, 353 N.J. Super. 364 (App. Div. 2002).
A new provision of the wetlands rules, N.J.A.C. 7:7A-4.3(b)(16), prohibits the use of any general permit in a vernal habitat or transition area to a vernal habitat. A vernal habitat generally is "a small (usually less than an acre), temporarily ponded or otherwise fish-free depression not connected to a flowing stream system. Water is supplied by surface runoff and/or groundwater." 33 N.J.R. 2938. This rule could have far-reaching implications because those activities once performed in vernal habitats under general permits will now require individual permits. NJDEP maintains a list of vernal habitats; however, the Agency could deny general permit authorization if evidence suggests that the site of a proposed project that is not listed as a vernal habitat nonetheless has the characteristics of one.
The final rules also reduce the acreage of disturbance authorized under General Permit No. 6 in non-tributary wetlands and General Permit No. 27 in previously disturbed sites from one acre to one-half acre to correspond to U.S. Army Corps of Engineers Nationwide Permits ("NWP") 29, 39 and 42, so as to comply with section 404 of the Clean Water Act, which requires NJDEP's regulations to be at least as stringent as the federal regulations. This amendment has no effect, however, on those freshwater wetlands that would not be subject to federal regulation as "waters of the United States." Thus, the final rules continue to allow disturbance of up to one acre for non-navigable, isolated, intra-state freshwater wetlands in New Jersey, which are not subject to federal regulation.
NJDEP also proposes to require that all wetland permit applications that "may affect" properties listed, or eligible for listing, on the New Jersey Register or the National Register of Historic Places ("NRHP") be identified. An "effect" to such properties may be direct or indirect and occurs whenever any aspect of the project causes or may cause any beneficial or adverse change "in the quality of the historical, architectural, archaeological, or cultural characteristics" that qualified the property for the New Jersey Register or NRHP. As guidance, the proposed rules include categories of project characteristics, indicating "a high probability of the presence of historic and archaeological resources requiring assessment" for adverse impacts by NJDEP. The assessment will take place through a coordinated effort between NJDEP's Land Use Regulation Program ("LURP") and Historic Preservation Office ("HPO"). Projects falling into certain categories will be identified and HPO will review and comment regarding the presence or absence of historic resources onsite. HPO will then provide LURP with recommendations for alternative project proposals and mitigation.
Finally, the proposed rules seek to add a provision specifically applying to projects involving federal assistance, which must be reviewed according to the procedures of the National Historic Preservation Act ("NHPA"). If the applicant has begun NHPA review, the applicant must supply a copy of the consultation comments provided by HPO, together with a statement detailing how the comments have been incorporated into the project, with the wetlands permit application. If, on the other hand, the applicant has not begun NHPA review at the time of the wetlands permit application, the applicant must consult with HPO in its role as staff to the federally designated State Historic Preservation Officer to satisfy the requirements of NHPA.
Although RCRA explicitly prohibits duplicative citizen suits, it is silent with regard to duplicative governmental suits. Thus, the EPA was allowed to bring a suit demanding financial assurances against Power Engineering Co. despite the fact that the matter had already been litigated with the Colorado Department of Public Health and Environment, which had declined to demand such financial assurances from the company. U.S. v. Power Engineering Co., 303 F.3d 1232 (10th Cir. 2002).
An essential element required to find that an activity is abnormally dangerous is that the activity have a "high degree of risk" of harm. If this element is not satisfied, then that activity is not subject to strict liability. Plaintiffs argued that a gas station which has a leaking underground storage tank creates such a risk. Plaintiffs' expert also testified, however, that the degree of risk was dependent upon a variety of factors including the location of the tanks, depth to the groundwater, and amount of product discharged. After hearing this testimony, the trial court disagreed with Plaintiffs' position that the degree of risk was "high" given the total volume of gasoline used nationwide. The Appellate Division accepted the factual analysis and findings of the trial court and held that its findings were supported by the record. Therefore, the Appellate Division affirmed the decision. Bitar v. Occidental Oil & Gas Corp., Docket No. A-5339-00T5, (App. Div., July 5, 2002).
In its opinion, the Court determined that the commencement of the "injurious process" (i.e., the "occurrence") was the depositing of waste into the unlined landfill. Relying upon expert testimony, the Court found that the initial deposit of waste set off the injurious process that resulted in groundwater contamination. Thus, the policy in effect when waste began to be dumped at the landfill was included in the policies responsible for responding to the loss.
In addition, the Court confirmed that the pro-rata allocation method should be used to determine each carrier's payment responsibility. In refining the model, the Court held that where an insurer is only on the risk for a portion of a year that is included in the trigger period, that carrier's responsibility should be determined based upon the number of days, not years, it was on the risk. Quincy Mutual Fire Insurance Company v. The Borough of Bellmawr, 172 N.J. 409 (2002).
The consultant, who admitted that its negligence resulted in the fine, then sued its malpractice insurance carrier for coverage for the cost of the fine. The carrier denied coverage based upon the fines and penalties exclusion in the policy. The consultant argued that the fine, which was not assessed against the consultant but against the client, constituted damages suffered by the client as a result of consultant's negligence, thus such costs were covered under the policy. Finding the policy language clear, the Court rejected the consultant's argument, holding instead that fines and penalties arising out of the insured's negligence (even though assessed against a third-party) are excluded under the policy. Fred Harz & Son, Inc. v. Cifron Environmental Services, Inc., Docket No. A-5210-00T5 (App. Div., June 14, 2002).
NJDEP Commissioner Bradley Campbell criticized the OMET program for allowing companies to claim emissions credits for reductions achieved from years earlier. Moreover, he indicated that the program is weak because it does not impose a cap on the total amount of air emissions that can be released from all regulated sources. The Commissioner's concerns, however, may be academic at this point because PSEG Fossil LLC, the main supplier of emissions credits for oxides of nitrogen, entered into a Consent Decree with EPA and NJDEP last year that forces it to retire its surplus credits. As a result, there does not appear to be a meaningful supply of emissions credits available for sale and the OMET program has already been essentially dormant for months.
The new law contains several provisions to increase fees at the NJDEP in line with the Governor's initiative to have the agency's fees "fully support" its programs. Included in the provisions related to NJDEP are increased authority to charge loan origination and annual administrative fees for various financial assistance programs, increased air emission, water allocation and discharge fees, renewal fees for operating permits in addition to initial application fees, and administrative fees for implementation of air emission trading programs. P.L. 2002, c. 34 became effective on July 1, 2002.
In November 2002, Assembly bill A-2970 was introduced with the purpose of decreasing or eliminating certain of the fees and penalties that were included in P.L. 2002, c.34. The new bill was referred to the Assembly Budget Committee.
Under the act's provisions, developers could be reimbursed for up to 75% of the costs of remediation from revenues derived from new taxes generated at the site. The list of taxes to be considered in estimating new revenues from the development project would be expanded to include sales taxes derived from the purchase of materials for use in construction of the project, as well as a portion of the realty transfer fee derived from the sale of real property at the site. The State would be authorized to enter into the redevelopment agreement upon the completion of one or more new residences at the site.Recently the NJDEP website unveiled the new i-MapNJ program. i-MapNJ is an interactive environmental mapping program that allows the user to identify information about a specific area and/or address, including information about open spaces, known contaminated sites, watershed management areas, Groundwater Contamination Areas, Wellhead Protection Areas, Land Use in 1986 and 1995, streams, roads and much more. Several data layers can be viewed at one time, some of which are scale-dependent and only available when the user zooms in. This program should prove to be a valuable research tool.