Environmental UPDATE

Title:
Environmental UPDATE
Publication:
The September 2012 Riker Danzig Environmental UPDATE
Attorneys:
Practice:

New Legislation Restricts the Use and Enforceability of NJDEP Guidance

NJDEP Developing Changes to Streamline Flood Hazard Area Rules

NJDEP Incorrectly Assessed Penalties for Violations of the Land Use Regulations

New Law Authorizes Fees and Requires Deposit of Property Tax Refunds for Vacant and Underutilized Industrial Properties Undergoing Remediation

U.S. Court of Appeals for D.C. Circuit Upholds First-Ever U.S. Regulations Governing Greenhouse Gases

The EPA Releases an Integrated Planning Framework for Municipal Stormwater and Wastewater Management 

New Jersey Appellate Division Invalidates NJDEP Regulation Requiring "De Minimis Quantity" Applicants to Certify that Property is Clean

Passaic River Litigation Moves Forward Against All Third-Party Defendants

Regulatory Updates

Legislative Updates

 

New Legislation Restricts the Use and Enforceability of NJDEP Guidance

The use of technical guidance for site remediation by the New Jersey Department of Environmental Protection (the "NJDEP" or the "Department") has been the subject of ongoing debate and, specifically, whether the Department could require remediating parties to adhere to prescriptive guidance without violating the requirements of the State's Administrative Practice and Procedure Act ("APA") and due process of law. The NJDEP Site Remediation regulations, adopted May 7, 2012, shift many prescriptive requirements of the original Technical Requirements for Site Remediation ("Tech Regs") into new technical guidance documents.  The regulations also require that the person conducting the remediation apply the guidance in performing site cleanups.   

In January 2012, Assembly Bill No. 2464 (N.J.S.A. 52:14B-3a) was enacted, addressing the Department's use and enforceability of administrative guidance.  The new law prohibits State agencies, including the NJDEP, from requiring use of guidance documents that have not been adopted as rules pursuant to the APA, unless the guidance is made readily available to the regulated community by posting it on the agency's website.  Additionally, the statute states that a regulatory guidance document that has not been adopted as a rule cannot impose new or additional requirements beyond those contained in State or federal law or the rules that the guidance is intended to clarify.  Finally, the legislation prohibits State agencies from using guidance as a substitute for State or federal law or rules for enforcement purposes.

As a result of the enactment of A-2464, the NJDEP requirement that remediating parties "apply" its numerous site remediation guidance documents may contravene the new law.  Moreover, the need for remediating parties to comply with the more prescriptive requirements moved into guidance documents from the Tech Regs is doubtful.  Indeed, in the recent rule adoption, the Department stated that its remediation guidance would not be used for enforcement purposes, but the Agency will require remediating parties to document any decision to vary from guidance requirements and will enforce this rule.

In light of these developments, it remains to be seen whether and how the NJDEP's guidance will be used in the future by the Department, the regulated community and Licensed Site Remediation Professionals ("LSRPs") or other professionals.  We expect that, given the NJDEP's position that the guidance clarifies rule requirements, LSRPs and others will continue to apply the Department's guidance as an industry practice.  However, A-2464 as enacted into law may provide a basis for remediating parties to challenge the regulation or use of guidance as applied at specific sites.

 
NJDEP Developing Changes to Streamline Flood Hazard Area Rules
       
The NJDEP is in the process of developing proposed changes to its Flood Hazard Area Rules.  The changes are intended to reorganize the subchapters and bring them into alignment with the Department's other land use rules, including the application and review process for land use approvals.  The draft changes propose adding eighteen general permits, converting seven existing general permits to permits-by-rule, and adding an additional 29 permits by rule. New proposed general permits include maintenance and repair of stormwater features, installation and maintenance of utility lines, hazardous site investigation and cleanup, landfill closures, construction of one private residence, residential additions and appurtenant structures, and redevelopment activities.  New proposed permits-by-rule include minor activities in a fluvial or tidal flood hazard area or riparian zone, constructing a private residence in a tidal flood hazard area, maintaining an existing utility or roadway easement or right-of-way subsurface sampling, and placing monitoring wells.  The revisions to the general permits are intended to match freshwater wetlands general permits where possible.

Also significant are the draft proposed changes to buffer zones.  The proposal would reduce the 150-foot riparian zone for acid-producing soils to a 50-foot zone.  The proposal would eliminate the Special Water Resource Protection Area (i.e., the 300-foot buffer) under the current Stormwater Rules and incorporate it into the Flood Hazard Area Rules, while adding flexibility for areas that are already disturbed.  In addition, the draft changes would allow placement of fill or discharges of stormwater into the 150- and 300-foot riparian zones, as long as runoff produced from the water quality design storm is infiltrated outside of the riparian zones.

In addition, the draft changes include extensions of time periods that will allow verifications from the NJDEP for approval of the flood hazard area design flood elevation, floodway limit, and/or riparian zone limit to remain valid for ten years.  Currently, these verifications are valid for five years; the draft changes would allow an extension for an additional five years, provided that the approval was not issued concurrently with a ten-year individual permit (approvals issued with a ten-year individual permit are already valid for ten years from the date of issuance).

The draft changes show a strong effort by the NJDEP's Division of Land Use Regulation to streamline both the regulations and the regulatory process, and reduce the amount of interaction with the Department necessary for approvals by use of permits-by-rule and general permits.  The Department is currently collecting input from stakeholders and may revise the draft changes before publishing proposed rules for public comment.  There is no set date for publication.  The Department will need to address any public comments to the published proposed rules before the changes are adopted.

 

NJDEP Incorrectly Assessed Penalties for Violations of the Land Use Regulations  
 
The Appellate Division recently reversed the NJDEP's imposition of penalties or violations of the flood hazard and freshwater wetland rules resulting from the development of property.  Asdal Builders, LLC et als. v. N.J. Dept. of Envtl. Prot., Docket No. A-2392-10T1 (June 25, 2012).  In 2007, the NJDEP assessed $175,000 in penalties against a corporate developer and its shareholder for violations of the Freshwater Wetlands Protection Act ("FWPA") and the Flood Hazard Area Control Act ("FHACA") as a result of activities undertaken in 2004 resulting in the renovation and construction of structures in a floodway.  A portion of the assessment was imposed pursuant to the Environmental Enforcement Enhancement Act ("EEEA"), enacted in January 2008.  The Court concluded that certain penalties should be modified and that the personal assessment against the shareholder of the corporation that developed the property should be vacated. 

In 2004, when the offending actions occurred, the NJDEP's authority to assess penalties under the applicable statutes was through an action in Superior Court and was restricted to $1,500 per violation and $2,500 per knowing violation, with each day constituting a new violation.  The 2008 enactment of the EEEA granted NJDEP authority to directly impose civil administrative penalties without needing to resort to Superior Court.  In addition, the EEEA also enhanced the applicable maximum penalties to up to $25,000 per day.  In reviewing the NJDEP's penalty assessment, the Court held that the EEEA cannot be applied to pre-existing violations.  The Court rejected the NJDEP's argument that the violations were continuing merely because the allegedly offending structures remained on the property. Further, given that the NJDEP was unable to establish a knowing violation, the Court held that the maximum assessments were inapplicable.  With these findings, the Court remanded to the NJDEP to determine the appropriate penalty.

The Court also rejected the imposition of penalties on the president of the corporation as a "responsible corporate officer."  Reading the FWPA, the Court found that the definition of "person" subject to penalty for violations of the Act did not include a responsible corporate officer and that the statute contained no other provision imposing liability for a corporation's activities on its officers.  Relative to the FHACA, the Court held that the definition of "person" did not include a responsible corporate official until the implementing regulations added the term "responsible officer" to the definition on October 2, 2006.  38 N.J.R. 3950(a) (Oct. 2, 2006).  Thus, the Court reversed the individual assessment of penalties for violations prior to October 2, 2006 predicated solely on corporate ownership.

 
New Law Authorizes Fees and Requires Deposit of Property Tax Refunds for Vacant and Underutilized Industrial Properties Undergoing Remediation  

On July 9, 2012, Governor Christie signed into law P.L.2012, c.19 (S1460) requiring the deposit of property tax refunds for certain industrial sites with the Commissioner of the New Jersey Department of Environmental Protection.  In addition, the law also allows the taxing municipality to assess an annual charge for certain industrial sites, which charge cannot exceed the difference between that amount of property taxes paid on the property in the last year of full industrial operation and the amount of property taxes paid on the property for the current year.  Sites subject to the law are industrial properties that have become vacant or underutilized, and that are subject to any federal or State court order, or administrative action or order, for environmental remediation.

This law may have an impact on sites undergoing a remediation that could be considered vacant or underutilized.  The term "underutilized" is not defined in the law and there is potential for the law to apply to sites currently being remediated and that may be operating at less than full capacity as compared with just a few years ago.  The law applies regardless of whether the site is in compliance with its site remediation requirements, including the posting of a remediation funding source, unless that requirement is satisfied with a Remediation Trust Fund.  Given the potential application of this law, it is advised that companies assess whether it could apply to any of their properties.

 

U.S. Court of Appeals for D.C. Circuit Upholds First-Ever U.S. Regulations Governing Greenhouse Gases
 
In its joint opinion addressing four separate lawsuits decided on June 26, 2012, the United States Court of Appeals for the District of Columbia Circuit upheld four of the United States Environmental Protection Agency's ("EPA" or "Agency") greenhouse gas regulations.  These rules were promulgated in response to the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), that greenhouse gases are an air pollutant subject to regulation pursuant to the Clean Air Act ("CAA"), including an "Endangerment Finding," the "Tailpipe Rule," the "Timing Rule," and the "Tailoring Rule."  Petitioners argued that the EPA "misconstrued the CAA and otherwise acted arbitrarily and capriciously" in promulgating these rules but the Court disagreed.

In Massachusetts v. EPA the Court determined that if greenhouse gases contributed to climate change, regulation was required by the CAA.  The Endangerment Finding contained the EPA's determination that greenhouse gases indeed contributed to climate change.  In reviewing petitioners' arguments, the Court found that considerations of science, not policy, are used to answer the pertinent questions of whether greenhouse gases "'may reasonably be anticipated to endanger public health or welfare,' and whether motor-vehicle emissions 'cause or contribute to' that endangerment."  It further found the scientific record presented sufficiently certain and substantial evidence to warrant the finding; it did not require certainty for compliance with the precautionary, preventative, forward-looking CAA nor did it require quantification of the harm, as prior case law has upheld a qualitative approach.
 
The Tailpipe Rule set emission standards for cars and light trucks.  With regard to the Tailpipe Rule, petitioners challenged the EPA's interpretation of CAA § 202(a)(1) and argued that EPA "was arbitrary and capricious in failing to justify and consider the cost impacts" of the regulation.  The Court disagreed, relying upon the plain language of Section 202(a) and precedent.  The Court explained that having made the Endangerment Finding EPA "lacked discretion to defer promulgation of the Tailpipe Rule on the basis of its trigger of stationary-source permitting requirements under the PSD program and Title V."  It further explained that the only costs to be considered were the "cost to the motor-vehicle industry to come into compliance with the new emission standards," not "costs to other entities not directly subject to the proposed standards."  Other challenges to the Tailpipe Rule also failed.

Having determined that "any air pollutant" includes greenhouse gases and regulation was thus necessary, and "[h]aving [further] concluded that the CAA requires Prevention of Serious Deterioration ("PSD") and Title V permits for major emitters of greenhouse gases," the Court then evaluated the challenges to the Tailoring and Timing Rules.

The purpose of these rules was to "tailor" and allow the phasing-in of the permitting requirements to avoid over-burdening permitting authorities and permitted sources.  EPA justified this approach based upon several doctrines of administrative law, including the absurd results doctrine, the administrative necessity doctrine and the one-step-at-a-time doctrine.  The Court dismissed petitioners' challenges by demonstrating how petitioners lacked standing because they could not demonstrate "injury in fact." 

Relying heavily on Massachusetts v. EPA, this case is the first to uphold regulation of greenhouse gases.  The impact on industry of these regulations has yet to be seen but those in opposition to the regulations have claimed that they will present harm to economic growth, hiring, and investment.
 

  
The EPA Releases an Integrated Planning Framework for Municipal Stormwater and Wastewater Management 


In June 2012, the EPA issued an Integrated Municipal Stormwater and Wastewater Planning Approach Framework (the "Framework") to assist local governments in meeting their Clean Water Act obligations.  The Framework allows local governments to develop integrated plans that direct capital investments toward priorities and innovative solutions, providing some relief from the strict mechanisms used in the past for compliance with the Clean Water Act.  Under the Framework, municipalities can use alternative methods to address stormwater and wastewater management such as green infrastructure (green roofs or stormwater infiltration) or trading systems to meet their runoff and overflow requirements.  It is anticipated that these alternative methods will provide municipalities a mechanism to holistically tackle water quality concerns instead of attending to each water quality regulation separately, resulting in more effective, less costly compliance.

Under the Framework, an Integrated Municipal Stormwater and Wastewater Plan ("Integrated Plan"or "Plan") must include (1) a description of the water quality, human health and regulatory issues that will be addressed; (2) an explanation of the existing stormwater and wastewater systems and their current performance; (3) a public participation process; (4) a method for selecting and implementing various alternatives; and (5) a process for measuring the success of the Plan and implementing improvements to the Plan when necessary.  In order to implement an Integrated Plan, the elements of the Plan can be incorporated into Clean Water Act permits or enforcement actions, or both.  Municipalities can renegotiate current permits or enforcement orders to incorporate elements of their Integrated Plans.

In addition, the National Association of Clean Water Agencies ("NACWA") is preparing a legislative proposal that would allow Congress to fund pilot integrated planning projects.  The proposal would provide $15 million for at least five communities to prepare the Integrated Plans.  The NACWA is hoping that such funding will incentivize communities to participate in the EPA program, which will foster a new approach to stormwater and wastewater management.

The Framework allows federal, state and local governments to work together to address, in an affordable and sustainable manner, pollution problems stemming from stormwater runoff and wastewater overflows.  It also eases some of the local fiscal burden of meeting stormwater and wastewater management requirements.  Municipalities, in their Integrated Plan, will focus their limited resources on actions that will result in the greatest environmental results.  Municipalities can change their Plans if processes or strategies presented prove to be unsuccessful. 

Right now, municipalities have the option of participating in the Framework.  It is anticipated that if municipalities take advantage of the Framework and prepare Integrated Plans, a new method for addressing stormwater and wastewater pollution issues in a fiscally sound and innovative manner will be created. 


New Jersey Appellate Division Invalidates NJDEP Regulation Requiring "De Minimis Quantity" Applicants to Certify that Property is Clean
 
The Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq. ("ISRA"), requires owners and operators of industrial facilities to investigate and, if necessary, remediate environmental contamination upon the occurrence of a triggering event, such as a cessation of operations or the sale of a business or property.  ISRA, however, provides a De Minimis Quantity Exemption ("DQE") to owners or operators that have stored or handled small quantities of hazardous substances that are below specified regulatory thresholds.  In 2009, the NJDEP revised its regulations to require applicants for a DQE to certify that the applicant has no knowledge of contamination on the property above any remediation standards in order to qualify for the exemption.  On July 6, 2012, the Appellate Division of the New Jersey Superior Court, in Des Champs Laboratories, Inc. v. Martin, Docket No. A-3235-10T4, invalidated this ISRA regulation, determining that the requirement was beyond the scope of the Department's authority under ISRA. 

From 1982 through 1996, Des Champs Laboratories, Inc. ("Des Champs") operated an industrial establishment in Livingston, New Jersey where it assembled heat-recovery ventilators for sale primarily on the residential market.  In 1996, in anticipation of ceasing operations at the site, Des Champs complied with ISRA and in January 1997 obtained a No Further Action ("NFA") letter from the NJDEP.  Later that same year, Des Champs' president, Nicholas Des Champs, and his wife Rebecca, sold the property to its current owner, R&K Associates, LLC.

Eight years later, the NJDEP began an investigation to determine the source of groundwater contamination that had been reported in Livingston.  The investigation revealed that the source of the contamination originated on the former Des Champs property.  The Department rescinded the January 1997 NFA and ordered Des Champs to comply with ISRA and investigate the property.  Instead, Des Champs filed an affidavit seeking a DQE because it had handled only a de minimis quantity of hazardous substances at the property.  In April 2009, the Department denied the DQE application and ordered Des Champs to hire a licensed site remediation professional to oversee the investigation and remediation of the site.  Des Champs appealed the determination.

On appeal, Des Champs argued that the ISRA regulation requiring a DQE applicant to certify that the subject property is clean was not supported by the underlying ISRA statute and appeared to circumvent the very purpose of the DQE.  The Appellate Division agreed.  It noted that a similar regulation existed for a time under ISRA's predecessor, the Environmental Cleanup Responsibility Act ("ECRA"), but that the Legislature chose not to include the requirement when it enacted ISRA.  The Court also concluded that imposition of the condition is inconsistent with ISRA, which was designed to streamline the regulatory process and minimize governmental involvement in certain business transactions. Although the decision appears to be a significant victory for owners or operators of industrial establishments that handle small quantities of hazardous substances, the Court clearly noted that its ruling did not affect the liability of a recipient of a DQE under the Spill Compensation and Control Act or any other statute or legislatively-authorized regulation imposing liability for the remediation of contaminated sites.  Accordingly, obtaining a DQE from ISRA does not excuse a party from its obligation to clean up a contaminated property under any other statute or regulation.


Passaic River Litigation Moves Forward Against All Third-Party Defendants 


The Appellate Division recently rejected a series of motions brought by several of the more than 300 third-party defendants to dismiss third-party claims filed by Maxus Energy Corporation ("Maxus") and Tierra Solutions, Inc. ("Tierra") in the litigation pending to determine responsibility for extensive river and sediment cleanup in the Passaic River and Newark Bay Complex.  The lawsuit was brought in 2005 by the NJDEP,  the Commissioner of the NJDEP, and the Administrator of the New Jersey Spill Compensation Fund (collectively, the "Plaintiffs") against nine entities (the "Defendants") pursuant to the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the "Spill Act") and other common law causes of action.  The Plaintiffs alleged that the Defendants discharged hazardous substances, particularly including dioxin, into the Passaic River over a course of at least 20 years from a plant they operated at 80 Lister Avenue in Newark.   Maxus and Tierra instituted third-party complaints, alleging that the Third-Party Defendants also discharged hazardous substances into the impacted areas and seeking contribution under both the Spill Act and the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 (the "JTCL").    In their motions to dismiss, the Third-Party Defendants raised a number of interesting arguments, and the trial court's and Appellate Division's denials provide some insight into the Court's reluctance to allow Third-Party Defendants to be dismissed from the litigation, at least at such an early stage.

Some of the Third-Party Defendants argued that they were protected from contribution claims due to prior settlements with the NJDEP.  These Third-Party Defendants relied on the Spill Act's contribution protection provision, which provides that a party that has obtained "a final remediation document[ ] or . . . has entered into an administrative or judicially approved settlement with the State, shall not be liable for claims for contribution regarding matters addressed in the settlement or the final remediation document[.]"   N.J.S.A. 58:10-23.11f(a)(2)(b).  The trial court found, and the Appellate Division affirmed, that the settlement agreements and consent decrees at issue were either ambiguous and therefore not ripe for adjudication on a motion to dismiss, or the settlement or consent decree resolved the entity's liability but only as to a limited subcategory of damages that did not encompass all of the damages set forth in the complaint. 

The trial court and the Appellate Division gave the language of the settlement documents a strict and literal reading in concluding that the scope of damages sought by the Plaintiffs was broader than that resolved by the agreements with the NJDEP.  For example, one of the Third-Party Defendants entered into a settlement with the NJDEP, in which the agreement resolved its liability for "natural resource damages" associated with discharges from the sites where the Third-Party Defendant operated.  The Court found that the term "natural resource damages," although not defined in the Spill Act or its regulations, was merely a subcategory of "damages," which is defined by the Spill Act regulations to include "all cleanup and removal costs and all direct and indirect damages[.]"  Thus, the Court refused to stretch the term "natural resource damages" to encompass all remedial costs, as was advocated by the Third-Party Defendant.

Certain of the Third-Party Defendants argued that Maxus/Tierra's claims should be dismissed because the allegations in the third-party complaint do not bear a factual nexus to the allegations raised by the Plaintiffs in the complaint.  In other words, they argued that because the third-party complaint did not relate to the main contaminant (dioxin) referenced in the primary complaint, Maxus/Tierra could not sustain a contribution claim.  The Plaintiffs responded that liability under the Spill Act is based on the commonality of the injured resource, not the commonality of the hazardous substance.  The Appellate Division agreed and rejected the Third-Party Defendants' argument because: (1) Spill Act liability requires only that some act or omission cause a hazardous substance not previously present to enter the environment; and (2) the primary complaint emphasizes the effects of dioxin on the Newark Bay Complex, but it also alleged that Maxus/Tierra discharged a number of hazardous substances.

These Third-Party Defendants also argued that Maxus/Tierra cannot seek contribution under the Spill Act because they have not yet remediated their own discharges.  The Court disagreed; it found that requiring a party to first perform a cleanup before seeking contribution would undermine the intent of the Spill Act's contribution provision to encourage the fair sharing of the cleanup burden.

Finally, certain Third-Party Defendants asserted that because they "merely shipped intact drums" to sites from which a discharge occurred, they could not be held liable for causing a discharge under the Spill Act.  The Court recited New Jersey case law for the proposition that some nexus between the discharge and the contamination at issue must be shown.  Because it was not yet clear whether the drums contained hazardous substances or whether the drums leaked, dismissing the claims against these parties would be premature.  The Court further noted if the drums contained hazardous substances, which made their way into the environment, the Third-Party Defendants would be liable as persons "in any way responsible" under the Spill Act.

As a result of the Appellate Division's decision, the litigation will continue against all of the Third-Party Defendants, with the benefit of some general guidance from the Court, such as: (1) a party who has previously resolved its environmental liability with the State will be protected from contribution claims but only regarding matters specifically and explicitly addressed in the settlement document; (2) Maxus/Tierra's contribution claim is viable regardless of whether the hazardous substance the Third-Party defendant is alleged to have discharged is the same as that discharged by Maxus/Tierra; (3) Maxus/Tierra's contribution claims stand despite the fact that they have not performed the cleanup yet; and (4) the liability of the parties who shipped drums to sites where hazardous substances were discharged will depend on a fact-intensive inquiry to determine whether a causal nexus exists between the drums and the hazardous substances found at the site.  While the significance of these rulings is somewhat subdued in light of the fact that they were made at an early juncture in the case, before discovery or a trial, they provide some insight and direction to the Third-Party Defendants in crafting their litigation strategies and arguments.

 

Regulatory Updates

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

New Waiver Rule Becomes Effective August 1, 2012
 

Governor Christie's Executive Order No. 2 directs State agencies to implement common sense principles of government reform.  In response, the NJDEP has adopted a new rule which affords it the ability to modify compliance with rules, under limited circumstances.
Applicants for a waiver must demonstrate public emergency, conflicting rules, net environmental benefit or undue hardship.  A waiver cannot violate State or federal statute or federal regulation.  Waiver requests will only be accepted after August 1, 2012.  Further information can be found at www.njdep.gov.  Riker Danzig previously reported on the waiver rule in its April 2012 Environmental Update.

May 7, 2012 Deadline Marks Milestone for LSRP Program

The deadline for parties responsible for the cleanup of existing contaminated sites to enroll in the Licensed Site Remediation Professional ("LSRP") Program occurred on May 7, 2012.  This deadline marked a milestone in the new system established by the Site Remediation Reform Act of 2009 establishing the LSRP Program, which overhauled the nature in which site remediation was undertaken in the State.  The LSRP program was phased in over the last three years, during which 1,200 cases were closed.

Responsible parties who have failed to hire an LSRP face the possibility of being placed into direct oversight, which involves more involvement by the NJDEP than under the prior case manager system.  Cases involving underground heating oil tanks, cases in long-term monitoring, federal-lead cleanups and  NJDEP publicly-funded sites are exempt by the Site Remediation Reform Act and will not need to enter the LSRP Program.

Further information can be found at www.njdep.gov.  Riker Danzig has written extensively on the implementation of the Site Remediation Reform Act and the LSRP Program in its December 2010 Special Edition Environmental Update and December 2011 Environmental Update.

Licensed Site Remediation Professionals

On April 1, 2012, the NJDEP ceased the processing of new applications for temporary licensure in order to facilitate the transition to a permanent LSRP Program.

The first administration of the new LSRP Licensure examination took place on May 14, 2012.  Registration required the submittal of an LSRP Exam application to the NJDEP,  which reviewed all applications on behalf of the Site Remediation Professional Licensing Board.

Of the 305 applications received, 278 applicants were approved to take the LSRP Exam.  On June 28, 2012, 218 candidates were notified that they had passed, leaving 60 applicants with two additional attempts to pass.  The LSRP Exam will next be administered in September and November 2012.  Failure to pass the LSRP Exam after three attempts renders an applicant unable to retake the LSRP Exam for at least one year. Further information can be found at www.njdep.gov.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

EPA to Award $2 Million to Small Businesses

Twenty-five companies from 18 states across the United States (two of which are from New Jersey) were recipients of the $2 million awarded by the EPA in Phase I of their Small Business Innovation Research ("SBIR") Program.  Eligibility is limited to organized, for-profit, U.S. businesses with fewer than 500 employees, with the Phase I award not exceeding $80,000.  Under Phase II, companies compete to commercialize their products, for an award not exceeding $300,000.

The SBIR Program encourages the development of economic growth and the technological sustainability of solutions for the environment.  EPA's SBIR Program supports small businesses' development of new technologies addressing key environmental areas.  This year's competition included concepts such as water monitoring and treatment, sustainable infrastructures, green building, innovation in manufacturing, green house gas reduction, air pollution monitoring and control and waste monitoring and management.

EPA to Assist Camden, New Jersey Community Group to Reduce Water Pollution

On or about July 19, 2012, EPA awarded $70,000 worth of technical assistance to Cooper's Ferry Partnership in Camden, New Jersey in order to advance projects aimed at reducing water pollution in Camden. The award is expected to benefit the Stormwater Management and Resource Training ("SMART") Initiative, a joint project between the City of Camden, Cooper's Ferry Partnership and other community members for the development of a network of green infrastructure programs and projects throughout the city.  Green infrastructure captures and filters pollutants by passing stormwater through soils and retaining it on site.  Effective green infrastructure tools and techniques include green roofs, alternative designs for streets and buildings, trees, rain gardens and rain harvesting systems.

Controlling stormwater is one of the most widespread challenges faced by communities across the country.  The SMART Initiative is an effort to restore and revitalize Camden through efficient stormwater management.

Energy Star Projects Receive Honors from EPA at the American Institute of Architects National Convention

On May 18, 2012, 100 commercial building design projects submitted by 43 architecture firms that achieved Designed to Earn the Energy Star certification in the past year were acknowledged by the EPA at the American Institute of Architects National Convention in Washington, D.C.

These projects were estimated to be approximately 40 percent more energy efficient than usual buildings.  In addition, these projects were estimated to avert nearly 175,000 metric tons of greenhouse gas emissions annually and save more than $23 million in annual energy costs across 10 million square feet of commercial space.  "Building owners and architects who achieve EPA's Designed to Earn the Energy Star for commercial buildings are getting it right from the start," said Gina McCarthy, assistant administrator for EPA's Office of Air and Radiation.  "From city skyscrapers to rural elementary schools, these new building design projects are helping to save energy and money from the ground up for American families and businesses."  It is estimated that by 2035, 75 percent of all buildings will be new or renovated.

Energy Star is a market-based partnership to reduce greenhouse gas emissions through energy efficiency which was launched by the EPA in 1992.  Through Energy Star, American families and businesses have saved approximately $230 billion on utility bills and prevented more than 1.7 billion metric tons of carbon pollution over the past 20 years.  The Energy Star label can be found on more than 60 different kinds of products, with sales of over $5 billion since its inception.  Further information can be found at www.epa.gov.
 

Legislative Updates 


Recently Enacted Environmental Laws

P.L.2012, c.24 (S1925)  Revises certain solar renewable energy programs and requirements; provides for aggregated net metering of electricity consumption related to properties owned by certain governmental bodies and school districts.

Recently Introduced Environmental Bills

A1534/S2026  Requires the NJDEP to conduct analysis of Pollution Prevention Act.  Status: Passed by the Assembly; pending in Senate Environment and Energy Committee.

A1564  Revises allocation of fees for certain NJPDES permits.  Status: Pending in Assembly Environment and Solid Waste Committee.

A2338  Changes the scope of public notification regarding contaminated site remediation.  Status: Pending in Assembly Environment and Solid Waste Committee.

A2395/S1246  Changes priorities for financial assistance from Hazardous Discharge Site Remediation Fund.  Status: Passed both Houses; S1246 substituted by A2395.

A2545  Authorizes the NJDEP to require soil blending or burial of historic pesticide residue at sites undergoing remediation.  Status: Pending in Assembly Environment and Solid Waste Committee.

A2580/S1351  Proposes numerous changes to regulation of solid waste, hazardous waste, and recycling industries.  Status: Pending in Assembly Environment and Solid Waste Committee; withdrawn from consideration in Senate.

A2584/S2025  Requires the NJDEP to allow for correction of technical and administrative permit application violations.  Subjects adoption of the NJDEP technical manuals to Administrative Procedure Act.  Status: Passed by the Assembly; pending in Senate Environment and Energy Committee.

A2585 Requires the NJDEP to obtain legislative approval and authorization for fee increases or imposition of new regulatory 
fees.  Status:Pending in Assembly Regulatory Oversight and Gaming Committee.

A2640/S1555  Concerns combined sewer overflows ("CSOs").  Exempts improvements to CSOs from 2% property tax cap.  Requires certain permit holders to address CSOs in capital improvement plans.  Appropriates $5 million.  Status: Pending in Assembly Appropriations Committee and Senate Budget and Appropriations Committee.

A2800  Establishes special environmental prosecutor.  Status: Pending in Assembly Environment and Solid Waste Committee.

A2852/S831  Establishes notification requirements for combined sewer overflows.  Status: Passed by the Senate; pending in Assembly Environment and Solid Waste Committee.

A2964/S1722  Authorizes submission of certification of remediation at unregulated heating oil tank sites by certain persons.  Requires use of contractors by the NJDEP to review site remediation submissions.  Status: Pending in Assembly Environment and Solid Waste Committee; withdrawn from consideration in Senate.

A3007  Removes provision permitting dismissal of de minimis violations for offenses involving corruption of public resources.  Status: Pending in Assembly State Government Committee.

A3103  Provides for priority consideration, by the NJDEP, New Jersey Department of Community Affairs, New Jersey Department of Transportation, and local government units, of permit applications for green building projects.  Status: Passed by the Assembly; pending in Senate Environment and Energy Committee.

A3128/S2094  Clarifies that certain types of sewage and sewage sludge do not constitute hazardous substances under the Spill Compensation and Control Act.  Status: Pending in Assembly Environment and Solid Waste Committee and Senate Environment and Energy Committee.