At an October 25th press conference, New Jersey Attorney General Gurbir Grewal and New Jersey Department of Environmental Protection (“NJDEP”) Commissioner Catherine McCabe announced the filing of six new lawsuits that, in their words, “target polluters in minority and lower-income communities across New Jersey.” These six cases—relating to contaminated properties in Newark, Camden, Kearney, East Orange, and Trenton, the site of two cases—are the second salvo in NJDEP’s ongoing program to target its enforcement in lower-income areas.
A person who previously owned contaminated real property is not liable for investigation and remediation costs solely as a result of its status as a prior owner of the property, according to a New Jersey trial court. NJDEP v. Progress Petroleum of Phillipsburg, Inc., Docket No. WRN-L-370-18 (Law Div. April 23, 2019). This decision is a blow to the New Jersey Department of Environmental Protection (“NJDEP”), as it has sought to impose liability on prior owners of contaminated property in several recent enforcement actions, but also serves as a beacon of hope for prior owners of contaminated real property that did not cause or contribute to the contamination.
Certain business transactions involving property in New Jersey now risk facing expanded environmental obligations if the parties do not follow an administrative policy that has been quietly revised by the New Jersey Department of Environmental Protection (“NJDEP”). The environmental obligations at issue arise under the New Jersey Industrial Site Recovery Act (“ISRA”), which requires owners and/or operators of “industrial establishments” in New Jersey that cease operations or undergo a transfer of ownership or operational control to conduct an environmental review of and, if necessary, remediation of the industrial establishment prior to closing the transaction.
A seller of a car wash property located in North Bergen, New Jersey recently learned the hard way that its failure to understand the nature and magnitude of contamination found on its property, and to clearly define in a contract of sale the scope of its obligations associated therewith, can be quite costly. In June, the Appellate Division of the New Jersey Superior Court upheld a trial court’s order directing the seller to fully remediate previously undiscovered environmental contamination at the property in accordance with its contractual obligations, which according to seller, was more than it had bargained for.
Companies often market products and services as having an environmental benefit, such as being compostable, recyclable, or made with renewable energy or materials. Businesses that make these types of claims in marketing materials need to ensure that the claims are accurate and not deceptive or misleading. While claims involving environmental benefits are subject to both state and federal law, the touchstone in this area is the Federal Trade Commission Act and the “Green Guides” established by the Federal Trade Commission (“FTC”) pursuant to its authority under the Act.
There are extensive regulations in New Jersey governing businesses involved in the solid waste and recycling industries. Many people do not realize that it is a long and complicated process to become a fully-licensed solid waste transporter, facility or broker. And some do not realize that they cannot conduct a solid waste business in the State of New Jersey until the process is completed.
When the New Jersey Department of Environmental Protection (“NJDEP”) filed six new lawsuits regarding hazardous substance discharges on the same day last August, NJDEP announced that environmental enforcement was “back in business” in New Jersey. In three of these six cases, NJDEP brought its first claims for natural resource damages (“NRD”) in ten years.
The New Jersey Board of Public Utilities (“NJBPU”) is currently accepting applications for “community solar” projects as part of its Community Solar Energy Pilot Program (the “Community Solar Program”). Community solar projects include solar installations owned and operated by a community as well as installations owned and operated by a third-party that shares electricity with a community.
Since taking office last year, New Jersey Governor Phil Murphy has sought to place concerns about environmental justice in the foreground of New Jersey’s regulatory decision-making process. Advocates and policymakers long have maintained that locally undesirable or polluting land uses disproportionately are located in low-income, typically urban communities that lack political influence or sufficient resources to protect their interests.
Regulation of stormwater in New Jersey is undergoing a shakeup that may have significant consequences for redevelopers and property owners. In fact, New Jersey recently enacted legislation that allows municipalities to create stormwater utilities. This legislation, which has been called a “rain tax,” authorizes these utilities to impose fees and take other actions to control stormwater. The New Jersey Department of Environmental Protection also recently proposed changes to the regulations governing stormwater management in connection with certain construction projects.