Riker Danzig Environmental UPDATE May 2016

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Riker Danzig Environmental UPDATE May 2016
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Buyers Beware:  Failure to Conduct a Preliminary Assessment Prior to Purchase May Be a Costly Omission
Pursuing Tax Appeals for Contaminated Sites 
Supreme Court of New Jersey to Decide Power of Private Parties to Compel Cleanups
Vapor Intrusion May Be a Factor in Determining the Priority of Superfund Sites for Cleanup
NJDEP Issues Policy Statement on A-901 Licensing for Site Remediation Professionals
NJDEP Guidance Explains Procedures for Spill Act Liens 
Regulatory Update
New Jersey Legislative Update


Buyers Beware:  Failure to Conduct a Preliminary Assessment Prior to Purchase May Be a Costly Omission

In the murky waters of determining liability under the New Jersey Spill Act, New Jersey courts are finding one thing clear - buyers who do not perform adequate pre-acquisition due diligence will not qualify as “innocent purchasers” and, thus, will be responsible for remediating contamination that pre-existed their ownership.   The Appellate Division recently held that a party buying property in New Jersey must perform a preliminary assessment in accordance with the New Jersey Department of Environmental Protection (“NJDEP”) rules in order to even be considered for innocent purchaser protection.  DEP v. Navillus Group, Docket. No. A-4726-13T3 (App. Div. Jan. 14, 2016).  The obligation extends to the purchase of property intended for residential use because a recent trial court opinion held that a purchaser’s visual inspection of a property to be converted into three apartments was insufficient to satisfy the due diligence required of an innocent purchaser.  Casino Reinvestment Development Authority (CRDA) v. Ping Lin,  Docket No. ATL-L-338-12 (Law Div. Dec. 9, 2015). 

There are very few defenses to the broad liability for cleanup costs that arises under the Spill Act.  One of those defenses, known as the “innocent purchaser” defense, requires a property owner to demonstrate that it did not know and had no reason to know of discharges of hazardous substances at the property by performing “all appropriate inquiry” prior to purchase.  The standard of what constitutes “all appropriate inquiry” differs depending upon whether the purchase occurred before or after 1993.  Post-1993 purchasers must perform a preliminary assessment and, if necessary, a site investigation under NJDEP regulations, whereas the appropriate due diligence for pre-1993 purchasers is determined by generally accepted good and customary standards at the time of purchase.  The purchasers in both the Navillus and CRDA cases were post-1993 purchasers.  As such, these cases do not provide guidance on what was considered good and customary practice prior to 1993, a subject that has yet to be decided by a court and will likely largely depend upon the facts and circumstances of the property purchase at issue.  

For post-1993 purchasers, the standard, as confirmed recently by the Appellate Division, is clear – sufficient due diligence must, at a minimum, consist of a preliminary assessment.  The Appellate Division’s decision in Navillus is part of the ongoing saga over environmental contamination at the Accutherm mercury thermometer manufacturing property in Salem County that later became a Kiddie Kollege daycare center.  After discovering that groundwater was contaminated, in 1988 the NJDEP conducted a site investigation that revealed Accutherm discharged industrial pollutants into its septic system.  Without having addressed environmental concerns raised by the NJDEP, Accutherm declared bankruptcy in 1994.  In 1996, the United States Environmental Protection Agency (“EPA”) issued a “Mini Pollution Report” for the site documenting that sources of mercury existed but the report did not find an imminent threat of human exposure.  In 2001, Navillus Group acquired title to the property via tax foreclosure and then two months later transferred the property to James Sullivan, Inc.

Defendants Navillus and James Sullivan Inc. asserted that they were innocent purchasers and not responsible for the contamination caused by Accutherm because their principal, James Sullivan, III had obtained a copy of the EPA Mini Pollution Report and interpreted it to mean there was no environmental problem at the property.  Further, the defendants argued that their inquiry of local officials and the NJDEP satisfied the “preliminary assessment” element of the innocent purchaser defense.  The Appellate Division strongly disagreed.  First, finding that requirements for a preliminary assessment are set forth in regulation, which entails significantly more than the inquiry the defendants performed, the Court unequivocally stated that defendants’ failure to undertake a preliminary assessment meant the innocent purchaser defense is unavailable to them.  Further, the Court was not persuaded that the property owner’s subjective and incorrect conclusion after reviewing the EPA Mini Report that there was no environmental issue at the property would qualify a purchaser as innocent so as to avoid Spill Act responsibility.  

The application of the innocent purchaser defense to residential property has also recently been at issue.  The CRDA case involved the 2004 purchase of property in Atlantic City that the defendant planned to renovate into a three-unit apartment building.  It was later discovered when CRDA condemned the property that it had contamination from an old heating oil underground storage tank.  There was no dispute that the defendant did not conduct a preliminary assessment prior to purchase.  Rather, the defendant argued that she met her burden of due diligence because prior to purchase she performed a visual inspection of the property, that at the time was heated with natural gas, and saw nothing apparent that would have led her to believe that further investigation into possible contamination was necessary.  The Court stated that even though it “appreciated” her argument, the Spill Act is clear that to satisfy the innocent purchaser defense a preliminary assessment must be conducted and because defendant did not conduct one, she does not qualify for the innocent purchaser defense.  

The defendant argued that as a purchaser of residential property a lesser due diligence standard should apply to her.  The Court noted that the Spill Act does not differentiate between residential and commercial properties.  The Court went on to state that as a purchaser who plans to occupy one unit and rent the other two, the defendant was not a residential purchaser, but rather was purchasing property for investment with the intent of deriving income.  As such, the Court held that the defendant’s failure to conduct a preliminary assessment was fatal to her assertion of the innocent purchaser defense.

These decisions leave little doubt that meeting the explicit requirements of the statute and rules in performing a preliminary assessment is essential to the successful assertion of the innocent purchaser defense under the Spill Act.  Given the CRDA Court’s efforts to distinguish the defendant, because of her intent to derive income from the property, from a residential purchaser, single-family residential purchasers may be able to argue in the appropriate case that something less than a preliminary assessment constitutes sufficient due diligence to qualify as an innocent purchaser, but to accept that argument a court would have to ignore the express language of the Spill Act.  Both of these decisions make clear that all purchasers of real estate in New Jersey should be aware that performance of a preliminary assessment is critical to establishing the innocent purchaser defense and that failure to do so may be very costly.  These decisions should also be considered by residential purchasers because failure to conduct a thorough environmental investigation or an oil tank sweep prior to purchase may be at their own risk.

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Pursuing Tax Appeals for Contaminated Sites

In a recent case, ACP Partnership v. Garwood Borough (Tax Court March 22, 2016), a New Jersey Tax court found that although property was “in use” for tax valuation purposes, the town was required to consider contamination at the property when assessing taxes.  In ACP, the property owner purchased a site without being aware that it was contaminated.  In fact, the property owner subsequently received an innocent party grant from the  NJDEP to assist with the cleanup.  The property was assessed for tax purposes at its full value because the owner was able to use the site and had several tenants.  The property owner, however, challenged the tax assessments for the past six years given that the property was contaminated.  The town argued that because the contamination was not interfering with the use of the property, it should be assessed at its full value.  The court disagreed.

The court stated that contamination is a critical factor in the true market value of property.  The court explained that since the taxpayer was not responsible for the contamination, there would be no windfall benefit bestowed on the owner by considering contamination in a tax assessment. The issue for the court, however, was how to address contamination when conducting the proper tax assessment.  

Although the court understood that normal assessment techniques should be used when valuing a contaminated property that was “in use,” the court found that it was appropriate to consider the environmental condition of the property when assessing value.  The court stated that normal assessment techniques must be tempered by the costs incurred by the property owner in addressing the contamination.  Thus, the court explained that competent testimony from environmental and property valuation experts would be needed to determine the true market value of the subject property.  The court also dismissed the town’s argument that the court must consider whether third parties are responsible for the remediation.  The court held that “the party bearing responsibility for those [clean up] costs plays no role in determining a property’s true market value.”  

The ACP court suggests that although normal tax assessment techniques should be used by a town when contaminated property is “in use,” the town cannot disregard the impact of contamination on such valuation.  Given the holding in this case, tax appeals for contaminated properties should be explored and pursued in appropriate circumstances. 

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Supreme Court of New Jersey to Decide Power of Private Parties to Compel Cleanups

The Supreme Court of New Jersey will soon decide whether private parties who have not incurred any remedial costs may use the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq., to compel responsible entities to perform environmental cleanups under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the “Spill Act”).  See Dalton v. Shanna Lynn Corp., Docket No. A-4846-12 (App. Div. Nov. 6, 2015), certif. granted, 223 N.J. 406 (2015).  Traditionally, New Jersey courts have allowed the NJDEP to compel site cleanups without incurring costs, but have only allowed private parties to recover cleanup costs from potentially responsible parties through “contribution actions” after actually incurring some costs.  If the Supreme Court allows these private entities to force potentially responsible parties to remediate environmental contamination, it would expand the universe of parties who may make a responsible entity perform a cleanup.  It could also give parties additional leverage in actions over responsibility for cleanups, especially because the Environmental Rights Act allows “reasonably successful” parties to recover counsel and expert witness fees.  N.J.S.A. 2A:35A-10.

In the case at hand, Dalton v. Shanna Lynn Corporation, the party seeking to compel remediation purchased commercial property in 1988.  Immediately following closing, the seller learned of environmental contamination emanating from an underground oil tank, but chose not to disclose this information to the purchaser.  The purchaser discovered the contamination more than a decade later during reconstruction of the building on the property, but chose not to remediate it.  The purchaser instead filed suit against the seller seeking, among other things, to compel the seller to perform the cleanup.  The purchaser specifically argued that, even though it had not incurred cleanup costs, the Environmental Rights Act gave it the authority to compel remediation in accordance with the Spill Act.  The Appellate Division, however, refused to allow the purchaser to maintain this cause of action against the seller on the grounds that the Spill Act only authorizes a private contribution cause of action against a potentially responsible party if the party seeking contribution has incurred remedial costs.  

As the Appellate Division noted, the Spill Act provides a private right of action, which is known as a contribution action, and which authorizes private parties who have incurred remedial costs to recover these costs from responsible parties.  N.J.S.A. 58:10-23.11f(a)(2)(a).  While New Jersey courts have allowed contribution actions to proceed prior to the completion of remediation, see Magic Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390, 411-12 (2014), plaintiffs nonetheless have been required to demonstrate that they have incurred some remedial costs to maintain such an action.  Bonneview Homeowners Ass’n v.Woodmont Builders, LLC, 665 F. Supp. 2d 437, 504 (D.N.J. 2009). 

In papers filed with the Supreme Court, the purchaser in Dalton has argued that it is not seeking contribution from the seller and, therefore, plaintiff should not be required to demonstrate that it has incurred cleanup costs.  Instead plaintiff is seeking through the Environmental Rights Act to obtain a judgment of specific performance to compel seller to perform the cleanup.  The purchaser contends that it is entitled to do so because the Environmental Rights Act authorizes private plaintiffs to enforce the environmental statutes, including the Spill Act.  

While there are some flaws in its argument, the purchaser asserts that the public interest requires allowing private parties to seek this relief under the Spill Act because, without the fee shifting provisions of the Environmental Rights Act, most private parties would not be able to afford the attorneys and experts necessary to pursue environmental litigation.  The purchaser specifically focuses on residential homeowners, who it claims do not have the resources to compel potentially responsible parties to cleanup environmental contamination.  Creating the possibility that parties can recover counsel and expert fees if successful, likely would allow more parties with limited resources to bring environmental claims.  

As a final matter, it is important to note that, even if private parties may compel others to perform remediation, these private parties still may have limited control over the manner and timing of such remediation.  Private parties often want to control the manner and timing of remediation because of the impact contamination can have on the sale and use of real property.  Nonetheless, under current New Jersey law, Licensed Site Remediation Professionals (“LSRPs”) are responsible for overseeing the day-to-day aspects of the remediation by a responsible party, and the NJDEP has limited authority over cleanups that proceed in accordance with the generous statutory deadlines.  Because of this, even if private parties can force others to perform cleanups under the Environmental Rights Act, they likely will not have the authority to control the actual mechanics of such remediation.  As a result, although the Supreme Court’s upcoming decision in Dalton may have a substantial impact on environmental litigation in New Jersey, the practical results may be more limited.

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Vapor Intrusion May Be a Factor in Determining the Priority of Superfund Sites for Cleanup

The EPA has recently proposed adding a subsurface intrusion component to its evaluation of contaminated sites for inclusion on the National Priorities List (“NPL”).  See 40 C.F.R. 300.  The EPA uses a Hazard Ranking System (“HRS”) to assess soil, groundwater, surface water and air pollution at contaminated sites in order to identify those sites with the greatest potential to cause significant environmental harm.  The sites identified are then listed on the NPL and receive priority as targets for remediation and potential funding under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  If the EPA’s proposal is adopted, the HRS will add to its evaluation an analysis of the impact of subsurface intrusion, especially vapor intrusion, which could place sites on the NPL that would not have been listed previously.  Comments on the EPA proposal are due by April 29, 2016.

Subsurface intrusion is the migration of hazardous substances from the groundwater to overlying structures.  The most common form of subsurface intrusion is known as vapor intrusion, where hazardous substances volatize and travel from the groundwater to the indoor air of structures overlying the contamination, sometimes resulting in unacceptable human exposure.  The EPA felt that the threat from subsurface intrusion was not adequately addressed in the current HRS and, therefore, it is proposing to include a subsurface intrusion analysis as part of the HRS.  Another factor in the EPA’s decision is that state requirements for addressing subsurface intrusion are inconsistent and generally insufficient. 

The EPA also noted that although vapor mitigation systems are being implemented at various sites, these systems do not eliminate the source of the intrusion.  If the contamination causing the vapor problem is not eliminated, it could result in increased exposure to individuals due to the migration of such contamination and an expansion of its area of impact.  Moreover, vapor mitigation systems require maintenance and failures of these systems can and do occur.  By placing sites on the NPL that have vapor intrusion issues, the contamination causing the vapor intrusion can be addressed instead of simply being mitigated.  As such, the EPA felt the inclusion of a subsurface intrusion analysis in the HRS would allow sites posing a vapor risk to be prioritized for remediation and potential funding.

Although the EPA claims that the inclusion of a subsurface intrusion analysis will not increase the percentage of sites listed on the NPL, it will result in sites being included that would not have been listed in the past.  Some believe this is a positive outcome given the potential public health threat that will be addressed by such listings.  One thing that is clear from the proposed inclusion is that the impacts of vapor intrusion are gaining recognition on both the federal and state level and becoming a priority in the remediation of contamination sites.

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NJDEP Issues Policy Statement on A-901 Licensing for Site Remediation Professionals

A question recently arose regarding whether Licensed Site Remediation Professionals (“LSRPs”) and certified Subsurface Evaluators (“SSEs”) need to obtain an A-901 license to manage solid and hazardous waste in connection with their remediation projects.  In response, the NJDEP issued a policy statement in March 2016 documenting its determination that LSRPs and certified SSEs, in providing overall management and oversight of a site remediation project, do not need an A-901 license in order to handle the management of solid or hazardous wastes.  This determination was based on the fact that these professionals are highly educated in their respective fields of practice and are subject to strict codes of conduct and codified professional business practice obligations.  Notably, however, while LSRPs and SSEs do not need an A-901 license to investigate, plan and arrange for the transportation or recycling of waste from their projects, they are still obligated to hire an A-901 licensed company to actually transport and dispose of these wastes.

Historically, corruption and criminal involvement plagued the waste management business in New Jersey.  In an effort to clean up the industry, the State Legislature, starting in 1984, began requiring any company that collects, transports or disposes of solid or hazardous waste in New Jersey to obtain and maintain an A-901 license pursuant to N.J.S.A. 13:1E-126 to – 135, requiring disclosures by the company and key employees prior to licensing.  The purpose of this requirement is to preclude from participation in the waste management any person with known criminal records or associations, as well as to ensure reliability, expertise and competence in the waste management industry.  

In making its determination that LSRPs and SSEs do not need an A-901 license in order to oversee the management of wastes at a site for which they are responsible, the NJDEP considered a number of factors, including the education and experience of these licensed professionals, as well as the fact that they are subject to a professional code of conduct.  In addition, the NJDEP acknowledged that oversight of waste management is merely incidental to other substantial, complex, technical and strategic consulting services performed by LSRPs and SSEs for responsible parties and, thus, requiring these professionals to hold an A-901 license would be burdensome and unnecessary.

Although LSRPs and SSEs are not required to have an A-901 license, these professionals (especially LSRPs), should take care to properly oversee the waste management, transportation and disposal activities at sites for which they are responsible.  This includes making sure that wastes that are removed from a site are transported to a facility licensed to handle a particular type of waste.  As a note of caution, LSRPs should be mindful that the Site Remediation Professionals Licensing Board can and will discipline LSRPs that do not appropriately oversee waste management activities on a site.

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NJDEP Guidance Explains Procedures for Spill Act Liens 

Under the New Jersey Spill Compensation and Control Act (“Spill Act”), NJDEP may remediate hazardous substances and then file a lien on the property of a person responsible for the discharge of the hazardous substance in order to recover its remediation costs.  NJDEP has a “superlien” with priority over all previously filed liens or claims.  On February 9, NJDEP published a guidance document explaining its procedures for hearing challenges to these liens by affected property owners.  The guidance requires lien challengers to make a series of written submissions to NJDEP and provides multiple layers of agency review.  Property owners subject to a Spill Act lien should take care to meet the deadlines set out in the guidance and use this opportunity to present their side of the story to NJDEP in order to preserve their right to judicial review of the lien.

The Spill Act gives NJDEP a lien on the revenues and all real and personal property of the person responsible for the amount that NJDEP expended for investigation and remediation.  The lien is two-tiered.  With respect to the property cleaned up, NJDEP’s lien is superior to all other claims.  For all other real and personal property of the person responsible, NJDEP has an ordinary lien that may be subordinate to other creditors’ prior claims under the law.  N.J.S.A. 58:10-23.11f(f).

As set forth in the guidance, NJDEP provides two notices, one before filing the lien and one after.  Thirty days before filing the lien, NJDEP notifies the property owner of the amount of the lien.  NJDEP also creates a record supporting its decision to file the lien, which includes (1) naming the current owner of the property NJDEP remediated with public funds and the current owners of all property against which NJDEP filed the lien, and (2) a summary and invoice detailing NJDEP’s cleanup costs.  Thirty days after filing the lien, NJDEP sends another notice of the property owners’ opportunity to contest the lien that also explains how to obtain the lien filing record under the Open Public Records Act (“OPRA”).   

To contest the lien, the property owner must write to NJDEP within sixty days of receiving the post-filing notice and support its challenge with specific facts from the lien filing record.  In order to meet the sixty-day deadline, the challenger should make an OPRA request for the lien filing record expeditiously.  NJDEP submits the dispute to a Neutral Agency Officer who has had no previous involvement with the site or the property owner.  The challenger then has ten days to make its own case in writing to the Neutral Agency Officer.  If relying on evidence outside of the lien filing record, the challenger should be sure to supplement the record at this stage to put its best foot forward to defeat the lien.  The Neutral Agency Officer will uphold the lien unless the challenger can demonstrate that NJDEP did not have a reasonable basis to file the lien.  NJDEP’s action cannot be appealed until the administrator of the Spill Compensation Fund either removes or affirms the lien based on the recommendation of the Neutral Agency Officer.

Property owners challenging a Spill Act lien should follow the procedures laid out in this guidance carefully.  Even if NJDEP ultimately upholds its own lien, a court challenge to the lien could be dismissed if the challenger does not follow the procedures and exhaust its administrative remedies.  A challenger also should not miss the opportunity to supplement the administrative record at the NJDEP level, as a reviewing court may not consider evidence that was not before the Agency.

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Regulatory Update

United States Environmental Protection Agency

Remediation Plan for Lower Passaic River Finalized

On March 4, 2016, a final Record of Decision was issued by the EPA confirming the selection of a plan for remediation of the Lower Passaic River.  The announcement of this remediation plan has followed years of study and the EPA’s public comment process, during which NJDEP and EPA worked together to advance this remedy.

The Lower Passaic River is purportedly one of the most polluted rivers in the nation.  EPA Administrator Judith Enck commented on the serious damage the river had sustained as a result of years of exposure to pollutants such as PCBs, heavy metals and pesticides, and noted that this plan is aimed not only to improve the water quality and revitalize the waterfront area, but to create hundreds of new jobs.

The remediation plan will involve bank-to-bank capping of the 8.3 mile lower portion of the river, as well as dredging 3.5 million cubic yards of material for the prevention of future flooding, all of which will be disposed of at out-of-state facilities or landfills. This project will be funded by the companies that the EPA has determined are responsible for contaminating the river.

Further information can be found at www.epa.gov.

Pollution Prevention Program Receives EPA Funds

In an effort to prevent pollution by grocery stores and dairy farms, on November 24, 2015, EPA announced the award of $80,000 to Manomet, a nonprofit organization, whose mission is to prevent environmental issues through scientific solutions via research and partnership.

Manomet’s program involves the provision of on-site technical assistance to approximately 40 grocery stores and 5 dairy farms in New Jersey and New York, many of which are presently not prepared to handle storms whose intensity could cause the release of toxic materials into the atmosphere.

EPA Administrator Judith Enck commented that not only would Manomet’s program educate business owners regarding chemical use, their handling of hazardous waste and energy conservation, but could also simultaneously impact their bottom line. 

This award represents a portion of the $5 million in grants for pollution prevention that EPA awards nationally on an annual basis.

Further information can be found at www.epa.gov.

New Jersey Department of Environmental Protection

Water Quality Improvement Projects to Share $2.5 Million Grant

Projects addressing the improvement of water quality have been of significant importance in New Jersey since Superstorm Sandy in October 2012.  To this end, the NJDEP announced on November 19, 2015, that 5 approved projects  in each region of New Jersey would share $2.5 million in grants to further the development of green infrastructure techniques, and address combined sewer overflows (“CSO”) and non-point source pollution control strategies.

$500,000 will be awarded to Rutgers Cooperative Extension Water Resources Program (“Rutgers WRP”) for the reduction of stormwater runoff and CSO discharges in Paterson, through the use of rain gardens, rain water reuse, community gardens and infiltration structures.  A further $700,000 will be awarded to Rutgers WRP to improve water quality and reduce flooding in the Raritan River Watershed.

$597,000 in grants together with matching in-kind services of $22,500 will be awarded to Rutgers Cooperative Extension of Ocean County for the design and development of water quality projects involving the Metedeconk River and its source for the provision of drinking water in Jackson Township.

$650,000 in grants for Readington Township, Hunterdon County, together with matching funds of $38,600 from Readington Township, will enable projects to improve water quality as well as the implementation of phosphorous TMDL for the Raritan River Watershed.

Camden County Municipal Utilities Authority will receive $65,000 for the installation of green infrastructure in parkland in Camden and Pennsauken.  A further $20,000 contribution will be made by the New Jersey Conservation Foundation and WRP.  Tree plantings and bioswales aim to ease stormwater impacts and diminish non-point source pollution entering Cooper River.

The grants are financed through the Clean Water Act and NJDEP’s 319(h) Program, which has generated approximately $5 million for the funding of 12 projects over the last 2 years. 

Further information can be found at www.nj.gov/dep.

Local Recycling Efforts Receive $14.3 Million in Grants

On December 29, 2015, several municipalities in New Jersey were collectively awarded approximately $14.3 million in grants in order to implement and enhance recycling efforts.  

In accordance with the Recycling Enhancement Act, the awards were based on 2013 recycling performances. A $3 per ton surcharge for trash disposed of at statewide solid waste facilities provides funding for the grant program.  During 2013, New Jersey generated more than 10 million tons of municipal solid waste, 9 percent more than the national average.  In total, New Jersey generated over 21 million tons of solid waste of which 12 million tons were recycled, giving this state a recycling rate of 58 percent.

Mark Pederson, NJDEP’s Assistant Commissioner for Site Remediation and Solid Waste Management, commented that in 1987 New Jersey was the first state to make recycling mandatory, contributing to its deeply engrained recycling culture.

Recipients of the highest awards include Newark ($414,754), Jersey City ($290,150), Brick ($280,093), Vineland ($255,217), Secaucus ($228,216), Paterson ($219,495), South Brunswick ($179,776), Toms River ($174,524), North Bergen ($172,451), Woodbridge ($167,846), Clifton ($166,856), Hamilton ($144,115), Cherry Hill ($139,961), Middletown ($118,916), Bridgewater ($114,698), Old Bridge ($114,045), Carteret ($108,392), Logan ($106,705), Fair Lawn ($103,437), East Brunswick ($102,397), Paramus ($101,810), and Freehold ($100,741).

Further information can be found at www.nj.gov/dep.

New Jersey Legislative Update

Recently Introduced Environmental Laws

P.L.2015, c.166 (A4307)  Increases required public notice from 30 days to 60 days for settlements entered into by NJDEP pursuant to the Spill Compensation and Control Act.

P.L.2015, c.188 (S2978)  Authorizes mobile electronic waste destruction units to operate without NJDEP permit.

P.L.2015, c.260 (S3321)  Authorizes NJDEP to require public access to waterfront and adjacent shoreline as condition of waterfront development approvals and CAFRA permits.

P.L.2015, c.270 (A1726)  Amends Flood Hazard Area Control Act to require NJDEP to take certain actions concerning delineations of flood hazard areas and floodplains.

P.L.2015, c.272 (A1958)  Concerns exemptions from permits for certain agricultural activities under the Freshwater Wetlands Protection Act.

Recently Introduced Environmental Bills

A4839 / S3193:  Requires Department of Agriculture and NJDEP to work with US Army Corps of Engineers to establish joint permit application process for aquaculture projects.  Status: Pending in Assembly Agriculture and Natural Resources Committee; pending in Senate Economic Growth Committee.

A4840 / S3194:  Requires Department of Agriculture and NJDEP to adopt joint permit application and review program for aquaculture projects.  Status: Pending in Assembly Agriculture and Natural Resources Committee; pending in Senate Economic Growth Committee.

S3302:  Requires large food waste generators to separate and recycle food waste and amends definition of Class I renewable energy.  Status: Pending in Senate Environment and Energy Committee.

Recently Re-Introduced Environmental Bills

A2076 (Last Session Bill Number: A2574):  Establishes de minimis levels for regulation of air contaminants and hazardous air pollutants, and directs NJDEP to establish de minimis levels for regulation of hazardous substances.  Status: Pending in Assembly Environment and Solid Waste Committee.

A2375 / S981 (Last Session Bill Numbers:  A4763 / S2973)  Revises Electronic Waste Management Act.  Status: Passed by Senate; pending in Assembly Appropriations Committee.

A2405 / S2028 (Last Session Bill Numbers: A3184 / S1497):  Establishes notification, signage, and monitoring requirements related to combined sewer overflows.  Status: Pending in Assembly Environment and Solid Waste Committee; sponsored but not yet introduced in Senate.

A2797 (Last Session Bill Number: A4205):  Establishes air quality standards and requires certificate from Commissioner of Health for operation of indoor ice arenas, indoor motorsports arenas, and special indoor motorsports events.  Status: Pending in Assembly Health and Senior Services Committee.

ACR137 (Last Session Bill Number:  ACR81):  Amends New Jersey Constitution to require State’s participation in Regional Greenhouse Gas Initiative and dedicates any revenues realized therefrom to certain clean energy and greenhouse gas reduction programs.  Status: Pending in Assembly Environment and Solid Waste Committee.

Updated Status of Previously Reported Environmental Bills

A3880 / S444:  Prohibits contribution action against local public entity for cleanup and removal costs or any other damages associated with discharge of hazardous substances.  Status: Passed by Senate; pending in Assembly Environment and Solid Waste Committee.

A3954 / S2981:  Authorizes Drinking Water Quality Institute to study and recommend maximum contaminant level for 1,2,3-trichloropropane to NJDEP.  Status: Passed both Houses; A3954 substituted for S2981; conditional veto; 2nd Reading in the Assembly on concurring with Governor’s recommendations.

A4283 / S2858:  Requires owner or operator of certain trains to have discharge response, cleanup, and contingency plans to transport certain hazardous materials by rail.  Status: Passed by the Senate; received in Assembly without reference; Assembly floor amendment passed.

A4579 / S3255:  Makes changes to funding provisions for financial assistance and grants from Hazardous Discharge Site Remediation Fund.  Status: Out of Assembly Environment and Solid Waste Committee with amendments, second reading in Assembly; pending in Senate Environment and Energy Committee.

ACR189 / SCR125:  Determines that proposed NJDEP rules and regulations repealing rules and regulations concerning State participation in greenhouse gas cap and trade programs are inconsistent with legislative intent.  Status: Passed both Houses; SCR125 substituted for ACR189; filed with Secretary of State.

ACR249 / SCR180:  Determines that NJDEP’s proposal to revise Flood Hazard Area Control Act Rules, Coastal Zone Management Rules, and Stormwater Management Rules is inconsistent with legislative intent.  Status: Passed both Houses; SCR180 substituted for ACR249; filed with Secretary of State.

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