Recent news regarding elevated levels of a commonly used chemical in drinking water may have potentially greater implications for almost all public water supply systems.  PFAS (per- and polyfluoroalkyl substances), which have been identified as carcinogens, have been reported in 570 water systems, according to the Environmental Working Group (EWG) analysis of water utility data from NJDEP.  Only a year ago, just 47 systems reported PFAS in their water.  This information resulted in water systems warning their customers of the chemical’s presence and its potential impacts.  If more systems make similar announcements in the near future, how will water suppliers, NJDEP and the general public react?

PFAS chemicals include PFAN (perfluorononanoic acid), PFOA (perfluorooctanoic acid) and PFOS (perflurooctanoicsulfonic acid), are a family of substances that do not breakdown.   PFAS was used in a variety of commercial items, such as food packaging, water repellants and non-stick items, and fire-fighting foams.   While the evidence of human health risks has been acknowledged, the regulatory response has been inconsistent.   The USEPA has yet to fully regulate PFAS. In contrast, some states, including New Jersey, quickly developed groundwater drinking standards and maximum contamination PFAS limits for drinking water, and required testing.  Elevated testing results have caused water systems to address the issue.

In a recent example, the Borough of Bellmawr, the local water purveyor notified its water supply users that it had shut down a drinking water well supplying half the borough’s water the due to the discovery of PFNA. Although the levels of PFNA were slightly above the 13 parts per trillion (ppt) standard, citizens were warned and advised that, if they had special conditions such as a compromised immune system, they should seek advice from their health care advisors.

If EWG’s statistics are correct, we can expect more of these announcements from drinking water purveyors.  It remains to be seen whether multiple warnings around the state cause further response by NJDEP.

On October 29, 2019, New Jersey Governor Phil Murphy signed Executive Order 89 which creates a Climate and Flood Resilience Program within the Department of Environmental Protection. A Chief Resilience Officer will lead the program and develop, within 180 days, a scientific report that addresses the anticipated environmental effects of climate change on New Jersey through at least 2050. The report will address the impact of increased temperatures, sea level rise, increased rainfall, storms and flooding, forest fires, and droughts.

The order also creates an Interagency Council on Climate Resilience, which will include 16 agency representatives who will assist the Chief Resilience Officer in developing a Statewide Climate Change Resilience Strategy by September 1, 2020. That strategy will include a Coastal Resilience Plan that recommends a “long-term strategy for climate change resilience and adaptation in the coastal areas of the State.” The Order sets forth various elements of the Coastal Resilience Plan, which include summaries of investments made, recommendations for further investments, and recommendations for financing for future adaptation.

At the local level, the order directs the State Planning Commission to adopt regulations as necessary to incorporate climate change considerations as a mandatory requirement for State endorsement of local government development and redevelopment plans. Plan endorsement is a voluntary program incentivized with state benefits. Currently 25 local governments have endorsed plans and another 37 have completed endorsement applications pending that presumably do not address climate change.

The Executive Order is available here.

Dennis M. Toft and Bozena M. Diaz will participate as panelists in the Opportunity Zone Boot Camp & Pitch Competition at the New Jersey Institute of Technology in Newark, NJ. Bonnie will cover tax considerations during the 9:00-9:50am panel, “Redevelopment 102: Real Estate Redevelopment in Opportunity Zones” – and they will serve together on the 1:30-2:20pm “Redevelopment 300: Managing Environmental Risk in Opportunity Zone Redevelopment Projects” panel.

For more information and registration, please visit the event webpage.

In August, the New Jersey Supreme Court took the extraordinary step of vacating an arbitration decision that denied payment from New Jersey’s Spill Fund for damage allegedly caused by oil spills during Superstorm Sandy. That decision, US Masters Residential Property (USA) Fund v. NJDEP, highlights the critical importance of clearly communicating expert testimony to the tribunal. Continue Reading Environmental Arbitration Decision Vacated Because Arbitrator Excluded Sampling Reports and Misperceived Facts

Dennis M. Toft, Chair of CSG’s Environmental Group, will be speaking at the MGP Conference 2019 taking place from October 7-9, 2019 at the Loews Philadelphia Hotel in Philadelphia, PA. There, he will serve on the “Improving Community Relations” panel, discussing environmental justice and best practices for meaningful relationship building with communities developed on or around former manufactured gas plant sites, on October 7 from 4:45-5:30 pm.

For more information or to register, please visit the event webpage.

On August 23 2019, New Jersey Governor Phil Murphy signed into law A5293, which amends the Site Remediation Reform Act (SRRA). The amendments are wide ranging and include exemptions from direct oversight, authorization to use surety bonds as remediation funding sources, and a requirement that the person responsible for conducting the remediation respond to public inquiries regarding the status of a remediation. Continue Reading New Jersey’s SRRA Amended: What’s Changed?

In a recent unpublished decision, In the Matter of Spill Fund Lien, DJ No. 129570-02, the Appellate Division held that the New Jersey Department of Environmental Protection (“NJDEP”), through the Spill Fund Administrator (the “Administrator”), could file a Spill Act lien against the property of a person in any way responsible for a discharged hazardous substance (“person in any way responsible”). The court also found that NJDEP’s “lien contest” guidance, the procedure for challenging Spill Act liens, satisfied procedural due process requirements. This decision removes a potential ground for challenging Spill Act liens, expands the universe of persons against whom a Spill Act lien can be filed, and may even expand the universe of persons against whom NJDEP can level treble damages claims. Continue Reading Appellate Division Rules that “Persons in Any Way Responsible” Are Dischargers Under the Spill Act, Upholds NJDEP’s “Lien Contest” Process as Constitutional

On June 10, 2019, the State of New Jersey released a draft of the 2019 New Jersey Energy Master Plan (the “EMP”) for comment.  If adopted, the EMP would be a seismic shift in New Jersey energy policy.  Quoting the draft plan, “New Jersey is embarking on a significant transition in its energy system, including aggressively pursuing energy efficiency and conservation measures, modernizing the grid, decentralizing electricity production, decarbonizing the energy system, and adding significant additional load to the grid through growth of electricity sales.”  The scope of the changes ahead are likely to touch every business and individual in New Jersey.  The draft plan highlights the following commitments made by Governor Phil Murphy:

  • Increasing the Renewable Portfolio Standard to 50% by 2030.
  • Generating 3,500 MW of offshore wind by 2030.
  • Installing 2,000 MW of energy storage by 2030.
  • Increasing energy efficiency standards by at least 2% in the electric sector and 0.75% in the natural gas sector by 2024.
  • Transitioning to a new solar incentive program.
  • Developing a community solar program that allows more state residents to benefit from solar energy, especially low and moderate income (“LMI”) families.
  • Putting 330,000 Zero Emission Vehicles on the road by 2025.

The draft EMP proposes the following strategies to achieve 100% clean energy generation by 2050:

  • Reduce energy consumption and emissions from the transportation sector by phasing out motor gasoline and conventional diesel consumption as quickly as possible through electrifying the transportation sector, reducing reliance on vehicles and increasing mass transit.
  • Accelerate deployment of renewable energy and distributed energy resources, including the development of offshore wind and in-state renewable energy generation, and the interconnection of carbon-neutral distributed energy resources, on-site generation systems, storage and equipment or processes that are appropriately sized, modular and decentralized.
  • Maximize energy efficiency and conservation and reduce peak demand by setting clear energy related goals and accountability, reducing wasted energy through improvements in building thermal envelopes, appliance efficiency, energy benchmarking, equipment controls, strategic energy management and attention to peak demand reduction.
  • Reduce energy use and emissions by decarbonizing the building sector, which would include include zero net carbon and EV ready construction standards, with an early focus on new construction, and the conversion of oil and propane fueled buildings, and the eventual reduction on the reliance on natural gas for heating.
  • Modernize grid and utility infrastructure by planning for, financing and implementing the necessary distribution system upgrades to handle increased electrification and integration of distributed energy resources, supporting bi-directional grid power flow, empowering customers to manage power consumption and self-generation, and actively engaging in transmission planning and siting, including the use of smart meters and Advanced Distribution Management Systems.
  • Support community energy planning and action in LMI and environmental justice (“EJ”) communities by encouraging municipalities that house predominately LMI or EJ communities to establish community energy plans and enact them with state support, and develop programs that support affordable access to renewable energy and energy efficiency, such as the existing community solar pilot program.
  • Expand the clean energy innovation economy by supporting the growth of in-state clean energy industries through workforce training, clean energy finance solutions and investing in innovative research and development programs, including the establishment of a Green Bank and a Commercial Property Assessed Clean Energy (C-PACE) lending program to increase the amount of public and private capital flowing to clean energy projects and innovations.

Stakeholders will have multiple opportunities to comment on the draft EMP before it is finalized, including six stakeholder meetings held over three days as follows:

  • Stakeholder Meetings on Wednesday, July 17 at 10 am and 1:30 pm at the State House Annex in Trenton.
  • Stakeholder Meetings on Thursday, August 8 at 1 pm and 4:30 pm at Larson Auditorium at Seton Hall Law School in Newark.
  • Stakeholder Meetings on Thursday, September 12 at 1 pm and 4:30 pm at Black Box Theater at the Kroc Center in Camden.

All stakeholders also are invited to submit written comments until 12 pm on Monday, September 16, 2019.

If you have any questions or would like assistance in developing a set of comments, please contact your CSG attorney or one of the authors of this blog post.

Robert Crespi will be speaking at the Brownfield Coalition of the Northeast’s 2019 Northeast Sustainable Communities Workshop on June 4, 2019. Rob will co-moderate the panel titled, “Getting Your Fill of Fill – A Discussion of the Issues Brownfield Developers Should be Aware of When Testing, Disposing and Reusing Building Materials, Including Concrete, Brick and Block,” from 12:10 – 1:00 pm. The full-day event will be held at the New Jersey Institute of Technology in Newark, NJ.

For more information or to register, please visit the event webpage.

When the New Jersey courts issue an “unpublished opinion,” across the top of the first page is a warning.  “This opinion shall not ‘constitute precedent or be binding upon any court.’”  But sometimes such opinions are ones not to be ignored by lawyers and clients dealing with certain issues.

In the Matter of Lacey Township Permit (Superior Court of New Jersey, Appellate Division, Docket No. A-3173-16T3, April 26, 2019) was an appeal by a citizens’ group seeking to overturn the issuance of an environmental permit by the New Jersey Department of Environmental Protection (“DEP”).  The permit process allows for 30 days of public comment after the submission of the application by the applicant.  The citizens’ group submitted timely comments as did a number of other interested parties.  At the end of the comment period, DEP issued a deficiency letter to the applicant.  Several months later, the applicant submitted a revised application addressing the deficiencies.  DEP then had 90 days to issue a decision on the revised application.  During those 90 days, DEP consulted with two of the commenters and the applicant to lessen the project’s impact on turtles that regularly nest in and access the project area.  The permit was approved and later notice of the permit’s approval was published.

The citizens’ group had the right to request a hearing on the permit approval within 30 days of the notice of approval.  If it had requested a hearing, it could have also requested a stay of the project’s construction.  It did neither.  The project was completed six months after the notice of the permit’s approval was issued.

It is not surprising the court denied the citizen’s group request.  Overturning a permit is difficult before New Jersey Courts and an unpublished decision on this issue normally would not merit comment.  But this case is different.

Here the court pointed out what the citizens’ group could have done differently.  Not that these actions would have affected the court’s decision but, as with having chicken soup when is ill, it could not have hurt.  The citizens’ group could have sought to confer with DEP while it was considering the deficiencies in the original permit application.  It could have requested a hearing within 30 days after notice of the permit’s issuance.  Finally, it could have sought “a stay of construction pending appeal from DEP and this court.”  It took none of these actions.

The points in the above paragraph do not fall within the court’s holding.  Instead, they are best characterized as advice to parties opposing a permit in the future.  It is this “advice” that makes this case important even if it cannot be cited as precedential.