On September 5, 2018, the United States Third Circuit Court of Appeals (“Third Circuit”) rendered a decision that could potentially implicate the NJDEP permitting process in future Natural Gas Act and other federal permitting actions.

In Township of Bordentown, et al. v. FERC, No. 17-3207 (3rd Cir.  September 5, 2018), the Third Circuit held that the New Jersey Department of Environmental Protection (“NJDEP”) could not deny the Petitioners the ability to request an adjudicatory hearing under the New Jersey Freshwater Wetlands Protection Act (“FWPA”) solely on the basis of preemption of the Federal Natural Gas Act (“NGA”). This opinion means that challengers have at least the right to request an administrative hearing for State-issued environmental permits, even for certain Federally-permitted projects. If a state environmental agency like the NJDEP were to grant such a hearing, this could significantly delay the commencement of a project.

By way of background, Transcontinental Gas Pipe Line Co. (“Transco”) proposed to upgrade its existing interstate natural gas pipeline system – including the construction of a new mater and regulating station, compressor station, and electrical substation along a lateral in Chesterfield, NJ – and conduct certain modifications in Mercer County, NJ (the “Project”). The Project required, and obtained, approvals from the Federal Energy Regulatory Commission (“FERC”) under the NGA. In addition, the Project is to be situated in freshwater wetlands and transition areas requiring the discharge of fill or dredge material into navigable waters, as well as a significant diversion of volumes of water. The discharge of dredge and fill material into navigable waters requires a permit pursuant to Section 404 of the Federal Clean Water Act , 33 U.S.C. 1341(a) (“CWA”). New Jersey has assumed permitting authority for certain navigable waters such as those involving the Project, which is implemented under the FWPA. Transco applied for, and obtained, a Freshwater Wetlands Individual Permit and Water Quality Certification.

Once NJDEP issued the permit, and pursuant to the FWPA, the Petitioners requested an adjudicatory hearing. NJDEP denied the hearing based solely upon the NGA’s requirement that the federal courts have exclusive jurisdiction to review the issuance of permits such that the state administrative hearing process is not applicable.

The Third Circuit concluded otherwise, and ruled that the administrative hearing process provided under state law is not precluded by the court’s exclusive jurisdiction under the NGA. In doing so, the Third Circuit reviewed the NGA and concluded that its jurisdiction is limited to civil actions, and not administrative proceedings. The Third Circuit also reviewed case law from the Supreme Court of the United States and other Federal Circuit Courts of Appeal, and concluded that the hearings at the administrative hearing level were not civil actions as referenced in the NGA, even if administrative proceedings mirror adversarial trials. Thus, the NGA “leaves untouched the state’s internal administrative process, which may continue to operate as it would in the ordinary course under state law.”

Depending on the Federal permitting process involved, applicants must consider the possibility that an administrative hearing may – and can, if granted – be considered as part of the timing of the state permitting process. The Third Circuit’s opinion, of course, is limited to the applicability of an administrative hearing in a state-permitting program delegated under a Federal statute, in this case the delegation of CWA authority to the NJDEP under the FWPA. However, the analysis of whether an administrative hearing is a judicial action can be read beyond its applicability to the FWPA. Each individual permittee applying under State law must always add a permit of time predicted for the hearing, if a hearing is granted, as part of its construction planning process. In addition, permittees may now want to vigorously oppose adjudicatory requests, as they can be used offensively by project challengers to delay a project.

It should be noted that the vast majority of the opinion provides a detailed analysis of FERC’s issuance of certificate of public convenience and necessity, and its subsequent analysis under the Federal National Environmental Protection Act (“NEPA”). The Third Circuit issues important conclusions regarding the applicability of a related intrastate project and its impact on the NEPA analysis. However, the important takeaway from this opinion is the applicability of the state administrative hearing process to state permits issued for Federal projects, and its impact on the timing of a project.

Effective August 6, 2018, the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) adopted amendments to several key rules governing site remediation—including Discharges of Petroleum and Other Hazardous Substances (N.J.A.C. 7:1E); Heating Oil Tank System Remediation Rules; Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS,” N.J.A.C. 7:26C); and the Technical Requirements for Site Remediation (“Technical Regulations,” N.J.A.C. 7:26E).

While this rule adoption made many modifications to these regulations, we call two significant changes to your attention. The first involves the use of alternative fill materials at remediation and redevelopment sites, while the second concerns the expansion of the definition of “person responsible for conducting the remediation.”

Alternative Fill

Alternative Fill is material used in a remediation containing contaminants exceeding the most stringent cleanup standard applicable to a site. The amendments to both ARRCS and the Technical Regulations will result in NJDEP being more involved in many cases using alternative fill, requiring review and approval prior to its use on a contaminated site. Previously, NJDEP did not have such broad authority, which allowed the use of fill without the delays caused by NJDEP review.

If the person responsible for conducting the remediation (“PRCR”) proposes to import alternative fill that does not meet the requirements of the Technical Regulations (N.J.A.C. 7:26E-5.2(b), discussed below), then the PRCR must obtain prior written approval from NJDEP.

However, prior NJDEP approval is NOT required if alternative fill from an off-site source is imported to a site as long as the alternative fill meets the following requirements set forth at N.J.A.C. 7:26E-5.2(b), in that the alternative fill:

  1. Does not contain any contaminants not already present at the receiving area of concern (“AOC”) above the applicable soil remediation standard (“SRS”);
  2. Does not contain a concentration of any individual contaminant above the 75th percentile of that contaminant’s concentration in the receiving AOC; and
  3. Is not imported in excess of the volume necessary to restore the pre-remediation topography and elevation of the receiving AOC.

With respect to using alternative fill from an on-site source (i.e., moving contaminated material from one part of a site to another), prior NJDEP approval IS NOT required if the concentrations in the alternative fill are already present in concentrations above the applicable SRS at the receiving AOC. If the contaminants in the alternative fill are not above the SRS in the receiving AOC, then prior NJDEP approval IS required before using the on-site alternative fill.

In response to comments, NJDEP believes the potential to delay remediation is justified by preventing further contamination of sites through inappropriate use of alternative fill and associated additional costs (i.e., for its removal and possible penalties) for such inappropriate use. The NJDEP stated that “the person should communicate with the Department early in the remedial process so that the person does not expend significant time, resources, and capital without knowing whether the Department will approve the proposal” (Response to Comment 254; 50 N.J.R. 1754).

The NJDEP is not sympathetic to comments that the proposal is unduly restrictive. The NJDEP emphasized the “use of alternative fill is for the purposes of remediating a contaminated site, not for the development of that contaminated site.”

Definition of “Person”

The amended ARRCS rules now place responsible corporate officers squarely within the realm of enforcement liability, even under statutes which do not place them within the target of such liability. Given the specter of personal liability for certain corporate officers, they will need to be even more vigilant in ensuring their company’s compliance with environmental rules governing site remediation.

Specifically, the definition of “person” was broadened to include for the purpose of enforcement, “a responsible corporate official, which includes a managing member of a limited liability company or a general partner of a partnership” (N.J.A.C. 7:26C-1.3). Numerous comments to the rule proposal emphasized that New Jersey’s Spill Compensation and Control Act, and other similar environmental statutes do not include corporate officials or shareholders within the definition of “person.” One commenter noted well-established corporate law distinguishes between human beings acting in a personal capacity as distinguished when acting as a representative or agent of a corporate entity.

In response to the many comments it received to the amended definition, NJDEP argues its expanded definition of “person” is consistent with statutory language (including the Water Pollution Control Act, Solid Waste Management Act and Spill Act) and that there is a “need for a systematic and consistent approach to the detoxification” of contaminated sites in New Jersey (Response to Comment 255; 50 N.J.R. 1754). The Department further notes that the protections granted to individuals by the corporate form are not absolute.

For more information regarding the NJDEP’s amended site remediation regulations, please contact your CSG attorneys or the post’s authors.

The EPA’s 2014 cooling water rule for existing power plants (40 C.F.R. pts. 122, 125) has survived challenges from both environmental and industry groups. The Second Circuit Court of Appeals upheld the contentious rule which allows for, among other things, case-by-case determinations of best technology available (BTA) required for minimizing adverse environmental impacts from cooling water intake structures (CWISs), finding that the rule was based on reasonable interpretations of applicable statutes and sufficiently supported by the factual record.

By way of background, once-through CWISs use tremendous volumes of surface water to dissipate heat from power plants. Fish trapped against the intake screens (impingement) or passing through the cooling water system (entrainment) can be injured or killed. Closed-cycle cooling systems use much less surface water and therefore impact fewer fish. Most existing power plants were built with once-through CWISs.

The rule allows for the Director of a state’s Clean Water Act permitting program to determine the BTA to limit entrainment on a site-specific basis. Environmental challengers argued that the rule should have identified closed-cycle cooling as the BTA. The Second Circuit disagreed, stating that the rule explains that closed-cycle cooling is infeasible at some existing facilities because of space constraints, emissions impacts arising from the additional energy requirements of closed cycle cooling, and the absence of net benefits associated with power plants nearing the end of their useful lives. Environmental challengers also argued that the cost of closed-cycle cooling should not have been considered in evaluating the best technology available. Again the Second Circuit disagreed, stating that EPA did not improperly consider costs, and that agencies are generally required to consider the costs and benefits of a regulation.

Regarding impingement, the rule identifies “modified traveling screens with a fish-friendly return” as the best technology available, rather than the closed-cycle cooling preferred by environmental challengers. Modified traveling screens are projected to achieve a 76% survival rate for impinged “non-fragile species.” Environmental challengers argued that the exclusion of fragile species was an arbitrary distinction. However, the Second Circuit accepted EPA’s “adequately supported” explanation that inclusion of fragile species masks the effectiveness of impingement technology, and that EPA’s data shows that mortality of fragile species depends on natural conditions rather than technology performance.

The Court also rejected a flurry of arguments relating to EPA’s site-specific process for evaluating impacts on endangered species, as well as the administrative law arguments advanced by industry challengers. Barring Supreme Court review, this decision marks the end of over 30 years of litigation regarding CWIS rules. Given the site-specific nature of the final rule, arguments previously used to challenge the sufficiency of the CWIS rules will likely now be used to challenge permits granted to existing power plants.

The Appellate Division of the Superior Court of New Jersey recently (in an unpublished opinion) applied the six year statute of limitations (“SOL”) for tortious injury to real property in barring plaintiff’s claim for permanent diminution in the value of its property. 320 Associates, LLC v. NJ Natural Gas Co., Docket No. A-1831-16T2 (N.J. App. Div. June 29, 2018). As a result, the neighboring property owner was unable to bring a claim for tortious injury to real property caused by the migration of coal tar contaminants from defendant neighboring property owner. Importantly, the court did allow plaintiff’s nuisance claim to proceed noting that if a nuisance can be abated, the failure to do so constitutes a continuing tort entitling plaintiff to relief and is not barred by the SOL.

In 320 Associates, the property owner, 320 Associates, LLC, owned a piece of commercial property located just north of defendant New Jersey Natural Gas Co.’s (“NJNG”) property. Plaintiff asserted that NJNG property was polluted with coal tar. The discharges on defendant’s property decades earlier from industrial operations had resulted in the migration of a coal tar plume onto plaintiff’s land causing damage.

Plaintiff stated in its complaint that it first learned of the migration of coal tar plumes onto its property in 2008. As a result of the newly discovered pollution, it could not sell its property to a current commercial tenant. Plaintiff further asserted that the pollution from NJNG’s land had decreased the value of plaintiff’s land and might negatively affect plaintiff’s future ability to either sell or lease the property. Damages were estimated at $2.5M. Based on these essential facts, plaintiff filed claims for negligence, negligence per se, strict liability, violation of the Spill Act, violation of New Jersey Environmental Rights Act, nuisance and trespass. In each count, the plaintiff sought the same relief, including damages for the lost sale or rental value of its property, and injunctive relief requiring NJNG to cleanup pollution on NJNG’s property and on plaintiff’s property.

The parties agreed that the applicable statute of limitations is the six year SOL for tortious injury to real property. N.J.S.A. 2A:14-1. The court confirmed the law axiom that ordinarily a cause of action would accrue when the right to institute and maintain a suit first arose. However, in environmental cases, under the so called discovery rule, a cause of action is found not to accrue until the injured party discovers, or by an exercise of reasonable due diligence and intelligence should have discovered that he may have a basis for an actionable claim.

The Appellate Division (in a de novo review) agreed with the trial court that the latest plaintiff learned about the condition was in 2008, therefore, the six year statute of limitations for a damages claim based on permanent diminution in the value of the property began to run in 2008 and expired in 2014 and therefore, was time barred. Additionally, the Appellate Court rejected plaintiff’s argument that the migration of contaminants constitutes a new “discharge” of pollutants every time it occurred. The court noted that the discharge of pollutants on defendant NJNG’s property occurred decades ago and therefore, the migration of those pollutants onto plaintiff’s land did not constitute a new discharge and therefore, the claims could not proceed based on the time bar.

Interestingly, the court reached a different conclusion with respect to plaintiff’s nuisance claim. Finding that since there was no dispute that defendant NJNG could have abated the contamination on plaintiff’s property, the failure to abate constitutes a continuing tort that entitles the plaintiff to relief and the applicable SOL did not bar plaintiff’s nuisance claim. The court further observed if the nuisance cannot be abated, there is no continuing tort, and the statute of limitations begins to run when the defendant creates the harmful condition. Finding these issues not ripe for the court’s consideration, the court found the trial court acted prematurely in dismissing plaintiff’s nuisance claim and remanded for the purpose of reinstating those claims and proceeding with discovery.

Property owners that have been impacted by contamination from a neighbor should consider bringing a nuisance claim for damages stating that the failure to abate the contaminants constitutes a continuing tort even though its other common law environmental claims may be time barred.

For more information or for a copy of this decision, please contact Michael J. Naughton at mnaughton@csglaw.com.

On Monday, the United States Environmental Protection Agency (“EPA”) issued a Compliance Advisory Update announcing the implementation of streamlined changes to the Hazardous Waste Manifest submission process.  Pursuant to the Hazardous Waste Electronic Manifest Establishment Act, beginning on June 30, 2018, EPA will launch a new e-Manifest system nationwide, allowing Hazardous Waste Manifests to be created and submitted via the EPA website. Consequently, EPA will no longer be accepting paper manifests and paper manifests submitted to the New Jersey Department of Environmental Protection will not be forwarded to EPA.

Among those most impacted will be treatment, storage, and disposal facilities (“TSDs”) which receive and report hazardous waste to EPA. The e-Manifest system will not be required for very small quantity generators (“VSQGs”), medical waste generators, used oil generators, universal waste generators, and others who are not required to have an EPA ID nor use the uniform hazardous waste manifest (EPA Form 8700-22).

To avoid confusion over compliance as the new e-Manifest system launches, EPA will phase in the rule based 30 day deadline such that all manifests expected to be delivered to EPA between June 30 and September 1, 2018 may be submitted to EPA as late as September 30, 2018.  More information on the e-Manifest system is available via the EPA website.

 

The next time a government inspector comes to a business and inspects its dumpster, do not be surprised if the resulting legal problem involves both environmental and consumer fraud actions. During the last few years, a number of national corporations have found themselves in legal trouble because the inspector found both hazardous waste and customer records containing personal information in a dumpster. If the business is in New Jersey that means it will be dealing with both the Department of Environmental Protection and the Division of Consumer Affairs’ Office of Consumer Protection. Needless to say, it is a situation to avoid.

Many items routinely handled by a business, including retail businesses, become a hazardous waste when disposed. These may include returned or excess inventory consumer products as well as cleaning and building maintenance products used at the business. Determining if they become hazardous waste when disposed often requires analysis not readily available at the disposing facility. Failure to know if disposed material is a hazardous waste can lead to substantial fines and even criminal prosecutions if it is improperly disposed. Any business should have a plan for determining if the materials disposed are hazardous waste subject to regulation and, if so, to ensure that the hazardous waste is handled and disposed of legally.

Many businesses are aware of the hazardous waste issues referenced above. Fewer are aware of this obligation imposed by New Jersey law with regard to disposal of customer information. “A business or public entity shall destroy, or arrange for destruction of, a customer’s records within its custody or control containing personal information, which is no longer to be retained by the business or public entity, by shredding, erasing, or otherwise modifying the personal information in those records to make it unreadable, undecipherable or nonreconstructable through generally means.” New Jersey is not alone in regulating the disposal of customer records. In states with such laws or regulations, any business having such records should also have a plan for their legal disposal. In New Jersey, the amount of actual damage to a consumer is automatically tripled, the consumer is automatically awarded attorney fees and costs and fines may be imposed up to $10,000 for a first violation and up to $20,000 for each subsequent violation. In some states, each disposed customer record is a separate violation.

The recent cases against national companies are likely only a prelude to similar actions against state or local business. When the inspector comes, those business should know that what is in their dumpsters does not include hazardous waste or discarded customer records containing personal information.

ESG investing is back in the news.  ESG investing evaluates a company’s or fund’s environmental, social and corporate governance performance when considering an investment in company stock or fund shares. Unlike years past, it is now conventional wisdom that companies and funds with strong ESG policies are good economic investments.  Those with weak or non-existent policies are not as prudent investments because they present a greater risk of facing events or publicity that will lower their investment value.  One would think the federal government would encourage such investing but this administration, siding with companies and funds that oppose ESG investing, does not.

On April 23, 2018, the United States Department of Labor issued a Field Assistance Bulletin (FAB) that backtracks on ESG investing by employee benefit plan managers by “clarifying” an Obama era Interpretive Bulletin (IB).  The IB stated “… that plan fiduciaries should appropriately consider factors that potentially influence risk and return.  Environmental, social and governance issues may have a direct relationship to the economic value of the plan’s investment.  In these instances, such issues are not merely collateral consideration … but are proper components of the fiduciary’s primary analysis of the economic merits of competing investment choices.”  The IB, in effect, supported plan managers who believed that ESG considerations are part of economically targeted investing.

The current administration has taken a different and potentially chilling approach to ESG investing.  “Fiduciaries must not too readily treat ESG factors as economically relevant to the particular investment choices at issue when making a decision.  It does not ineluctable follow from the fact that an investment promotes ESG factors, or that it arguably promotes positive general market trends or industry growth, that the investment is a prudent choice for retirement or other investors.”

Fund managers who consider ESG factors may feel this FAB creates confusion instead of clarifying the government’s position.  A fund manager must also consider how and when the government will second guess an ESG investment decision.  These uncertainties likely will require additional documentation supporting the fund manager’s decision.  Whether this FAB reduces ESG investing remains to be seen.

Can groundwater discharges violate the Clean Water Act and require NPDES permits?  Two federal court cases coming out of the 4th and 9th Circuits dealing with the applicability of the Clean Water Act (CWA) to groundwater are creating real concern over how expansive the court’s holdings and application of the Act can be.  The decisions were rendered by US Court of Appeals for the 4th Circuit in Upstate Forever v. Kinder Morgan Energy Partners LP and the 9th Circuit in Hawaii Wildlife Fund v. County of Maui.

In each case, the courts held that groundwater can be regulated under the CWA when it acts as a conduit through which pollutants from a spill of hazardous substances, septic waste or injection can be traced to protected surface waters.  While the burden of proof is significant, if a nexus can be established between the contaminant detected in the surface water and groundwater where the release originally occurred, then exposure to CWA fines is real and the need for a National Pollution Discharge Elimination System permit appears to be required.  The 4th Circuit’s holding is even broader than the 9th Circuit in that it applies to residual or historic contamination.  In other words, if released contamination ever reaches surface water protected by the CWA, then it doesn’t matter when the spill contaminants were first released to the environment.

In the 9th Circuit case, the County of Maui has already informed the court that it will seek Supreme Court review and for good reason.  If upheld, these rulings have far reaching implications for not only regulated industries, such as oil and gas, but also private home owners with septic systems and municipalities with leaking sewer pipes.  Here in NJ, where there is a robust state regulatory program requiring remediation of discharges to the environment, CWA regulation will add another regulatory scheme to be considered and may end up regulating septic tanks, which are common in New Jersey, and other systems designed to release materials below ground level.  Releases, both recent, as well as historic, could create a set of liabilities no private citizen even remotely considered.   Moreover, these decisions could cause the New Jersey Department of Environmental Protection to require re-investigation and re-assessment of sites that have been remediated pursuant to state law to determine if a previously unaddressed contaminant pathway between groundwater and surface water exists.

It remains to be seen how EPA will integrate these decisions, if they stand, into practice.  Once it does, the question will become how state delegated clean water programs will be affected.

In a recent unreported opinion, the Appellate Division affirmed a trial court’s decision imposing Spill Act liability on the sole shareholder of a dry cleaning business. (Morris Plains Holding VF, LLC v. Milano French Cleaners, Inc., Dkt. No. A-0604-16T1.) The case serves as a reminder that shareholder status does not protect individuals who are otherwise liable for contamination pursuant to the Spill Act.

The trial judge found that Milano French Cleaners operated for 25 years in a strip mall owned by the plaintiff. PCE was detected in the soil in 1999. After approximately 10 years of remediation the business went bankrupt. The landowner then assumed responsibility for the remediation and filed the subject action against the bankrupt corporation and its sole shareholder. The trial judge held both the sole shareholder and the corporation jointly liable for all remediation costs.

On appeal, the shareholder argued that imposing Spill Act liability on him improperly pierced the corporate veil. The Appellate Division disagreed, relying on NJDEP v. Dimant, 212 N.J. 153 (2002). As set forth in Dimant, to recover damages under the Spill Act, a plaintiff must establish a “reasonable nexus” between the discharge and the environmental damage, and a “reasonable link between the discharge, the putative discharger, and the contamination at the specifically damaged site.” Relying on the trial courts factual determinations, the appellate panel found a “reasonable nexus” because PCE contamination was found directly below dry cleaning machines with no other credible source in the area. In addition, the shareholder operated the dry cleaning equipment, was responsible for overseeing and handling the PCE used, and was responsible for ensuring legal and regulatory compliance of the corporation. Taken together, the record satisfied Dimant’s reasonable nexus standard and established individual liability.

Liability protection is clearly available to shareholders of close corporations in Spill Act actions. As recently as 2016 the appellate division remanded a decision imposing personal liability on shareholders for failure to conduct the fact intensive analysis necessary to pierce the corporate veil. See NJDEP v. Navillus Group, App. Div. Dkt. No. A-4726-13T3 (Jan. 14, 2016). However, in this case, given the nexus between the individual shareholder and the contamination, the appellate division refused to allow shareholder status to be used as a shield to individual liability. Rather, liability arose from a “reasonable link” between the discharger and the contamination, without regard for shareholder status.

A recent Court Decision by the United States Court of Appeals for the Second Circuit held there is no time limitation on OSHA’s ability to look back at prior citations in order to classify a new citation as a repeat citation and thereby seek a larger penalty. The issue in Triumph Construction Corporation v Secretary of Labor, 885 F.3d 95 (2018), was whether the three-year look back period used prior to 2015 or the subsequent five-year look back period applied to a repeat citation issued to Triumph in 2015 for a cave-in at an excavation site in lower Manhattan. To establish the repeat classification, OSHA had relied upon two prior citations issued in 2009 and 2011 to Triumph for violating the same excavation standard. Triumph contended to the Court that the Occupational Safety and Health Review Commission improperly upheld the contested repeat citation.

Triumph argued that prior to 2015, OSHA had used a three-year look back period to determine a repeat citation and that OSHA’s subsequent decision to use a five-year look back period in 2015 was an arbitrary one. These look back periods were included in OSHA’s Field Operations Manual effective at the time of the citations. The Second Circuit found that it did not matter whether a Manual prescribed a three-year or five-year look back period. It noted that neither the Occupational Safety and Health Act nor its implementing regulations impose time limits when determining if a citation is considered a repeat citation. The Court held that a time period set forth in a Manual “is only a guide” and does not bind the Commission to a specific look back period. As neither the Commission’s precedent nor the Manual limited OSHA to any look back period, the Commission did not abuse its discretion by relying on prior violations more than three years old in upholding the classification of the citations.

What this means is that OSHA is not restricted to any look back limitation when determining to classify a citation as a repeat citation. With OSHA substantially increasing its maximum penalties for willful or repeated citations to $130,000 (effective 1/2/18), employers should seriously consider contesting citations to which they have a good faith defense so that those citations do not later form a basis for a repeat citation.