Legislative Action on the Environment

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Title:
Legislative Action on the Environment
Date:
January 1, 2002
Area(s) of Practice:
Environmental Law

On the State Level ...

Bill Limiting Municipal Remediation Ordinances Enacted Acting Governor DiFrancesco signed into law on July 27, 2001, a bill to provide that any relevant municipal remediation ordinance would not apply to property being investigated or remediated for historic pesticide contamination under New Jersey Department of Environmental Protection ("NJDEP") oversight, provided that as a condition of any development approval by the municipality, the agency issues a "No Further Action Letter." The Act further provides that no such municipal ordinance shall require disclosure of information regarding the remediation of the property that is not required by NJDEP in the course of its oversight activities.

We previously reported on this bill, A-2478 and its companion, S-1307, in the July 2000 and July 2001 issues of UPDATE.

Legislation to Allow Issuance of Temporary Water Diversion Permits Signed by Governor

A-3676 amends the "Water Supply Management Act" to allow NJDEP to issue temporary water diversion permits or water usage certifications for projects in areas that have been determined to be approaching critical water supply conditions. At present, NJDEP lacks the statutory authority to issue temporary permits.

The temporary permits and certifications would be for no longer than five (5) years and would address situations in which the short-term allocations could be allowed while the agency pursues longer-term water supply and infrastructure initiatives. Throughout the term of the temporary permit, the permitee would be required to actively seek an alternative for its long-term water supply needs. Prior to issuance of any such temporary permit, the proposed legislation requires that there be notice, an opportunity for public hearing and justification as to the appropriateness of the permit. The department could alter the conditions or amount of water allowed to be diverted, terminate or renew the permit for a subsequent term.

A-3676 passed the Assembly in June and was amended and passed by the Senate in early October. The amended bill returned to the Assembly where it was passed in November. The Governor signed the bill on January 3, 2002.

... and the Federal Level

Combined Brownfields and Liability Protection Bill Passes

A Senate bill to promote the cleanup of brownfields (S. 350) passed in April 2001 by a 99-0 vote was combined with a House of Representatives' bill (H.R. 1831, reported in the July 2001 issue of UPDATE) to limit small business liability under Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund").

Under the brownfields provisions of the combined bill (H.R. 2869), $200 million annually would be allocated to state and local governments over a five-year period to fund assessment and cleanup activities at brownfields sites. The bill also provides CERCLA liability protection for prospective purchasers and contiguous property owners. Third, the bill creates a bar to Environmental Protection Agency ("EPA") enforcement, with certain exceptions, when the site is remediated in accordance with State law.

The small business liability provisions of the combined bill are designed to exempt small businesses from liability under CERCLA for de micromis quantities of hazardous substances or municipal solid waste.

Final passage of H.R. 2869 by both the House and the Senate took place on December 20, 2001. The bill had been stalled for months following Democrats' demands for assurance that workers conducting brownfields cleanups would be paid prevailing wages and benefits. The stalemate ended when Republicans agreed to add the requested language.

Ban on MTBE Approved by Senate Committee

Taking a first step toward addressing MTBE issues on the federal level, the Senate Environment and Public Works Committee passed a bill, S.950, that would ban the use of MTBE as a fuel additive after a four-year period. In addition, the bill would waive the 2% oxygenate requirement for gasoline. MTBE is added to motor fuels to reduce emissions that cause ozone pollution, but has been found to contaminate drinking water supplies via leaking underground storage tanks. Amendments are expected during the Floor debate.