If a potentially responsible party settles its environmental liability with the State of New Jersey, or another state, might it still face liability in the future for costs incurred by the federal government? According to the United States Court of Appeals for the Third Circuit, the answer may be “yes.”
The extraordinary events of 2020 have disturbed settled expectations in all areas of business and life, and the environmental field is no exception. One seemingly minor consequence of public health driven office closures—the difficulty of fulfilling public records requests while in-person government offices are shuttered—may have significant repercussions for the environmental liability faced by purchasers of real property in New Jersey.
Update: The New Jersey Department of Environmental Protection (the “NJDEP”) published a notice in the New Jersey Register on September 8, 2020 regarding the NJDEP approvals extended by the Permit Extension Act. Anyone seeking to extend one of these approvals must register their approval with the NJDEP by October 8, 2020. Please refer to the notice for the specific approvals eligible for extension. Click here for the notice.
New Jersey continues to focus on environmental justice as the Legislature advances proposed legislation that would require the New Jersey Department of Environmental Protection (the “NJDEP”) to consider impact on overburdened communities when reviewing certain permit applications. In fact, at the end of June the New Jersey Senate passed the proposed legislation, which is referred to as S232 and can be reviewed here.
In August 2018, the New Jersey Department of Environmental Protection (“NJDEP”) declared that environmental enforcement was “back in business” and brought its first new litigation seeking natural resource damages (“NRD”) in ten years. Loyal readers of this blog will recall that we reported in 2019 on a trial court decision that dismissed the Department’s common law claims for NRD related to a former Hess oil refinery and terminal and discussed NJDEP’s pending appeal of the decision: “NJDEP’s Common Law Natural Resource Damage Claims Temporarily ‘Out of Business.’”
Recently, the Justice Department eliminated the use of supplemental environmental projects (“SEPs”) in United States Environmental Protection Agency (“USEPA”) settlements. SEPs, environmentally beneficial projects implemented by a regulated entity, are not required by law but have been used for years to allow an entity to lower its penalty for a violation of environmental law.
On April 6th, the New Jersey Department of Environmental Protection (“NJDEP”) proposed major revisions to the existing Remediation Standards codified at N.J.A.C. 7:26D that may impact current, future and even closed site remediation cases.
New Jersey and many other states continue to issue directives outlining which businesses may continue to operate during the COVID-19 pandemic. The swiftly changing landscape is uncharted and difficult to navigate; this is especially true for parties involved in site remediation, either as a remediating party or as the environmental consultant or Licensed Site Remediation Professional performing the remedial work.
In response to the COVID-19 pandemic, the United States Environmental Protection Agency (“USEPA”) has decided to exercise enforcement discretion. That is, USEPA will review any violations and determine if they result from the pandemic; if so, USEPA will decide the proper enforcement action, if any. See USEPA Memorandum, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, dated March 26, 2020 (the “Policy”).
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) has been a prodigious generator of litigation for decades. First, the government sought to compel potentially responsible parties (“PRPs”) to clean up contaminated sites. Then, those PRPs who were found liable or who settled with the government sought contribution from other PRPs.