In fiscal year 2019, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) conducted 33,401 more inspections than in the previous three years, which includes a notable increase in chemical exposure cases.

While inspections are increasing significantly, in 2019 OSHA reduced certain electronic reporting requirements which had been implemented by the Obama administration in 2016. With OSHA’s March 2, 2020 deadline for employers to electronically file their annual summary of all work related injuries and illnesses, the electronic reporting requirements for certain employers have been reduced.

For example, employers with 250 or more employees at a particular establishment are no longer required to electronically submit their OSHA 300 and OSHA 301 Forms directly to OSHA. These employers, however, still need to electronically file their annual OSHA 300A Form before March 2, 2020. Employers with between 20 and 249 employees also must electronically file their OSHA 300A Form (by March 2, 2020), if they fall into one of the industries designated by OSHA’s regulations. Additionally, all employers must continue to report to OSHA any work place incident, such as a chemical exposure resulting in worker injury.

On January 10, 2020, OSHA (Region 5) proposed a $171,628 penalty to an industrial valve manufacturing company for exposing employees to lead and copper dust at rates higher than the permissible exposure levels.

On February 4, 2020, OSHA (Region 3) proposed a $280,874 penalty against a hydraulic service and repair company for exposing workers to hexavalent chromium fumes and other hazards at the company’s facility in Pennsylvania.  The penalties included one willful violation and 18 serious and two other-than-serious citations. OSHA noted in their report that “employers must continually evaluate their facilities for hazards, and use proper safety controls and equipment to protect workers’ safety.”

An important takeaway from this post is that with the increase in OSHA inspections and imposition of significant fines, employers should, almost daily or weekly, evaluate their facilities for chemical exposure hazards. Also, this will ensure the use of proper safety controls and other equipment to protect workers’ safety.

Note, February 27, 2020: The NJDEP has made available licensing registration forms referenced in our original blog post that must be submitted by any entity engaged in “soil and fill recycling services” by April 20, 2020.  NJDEP also issued  a guidance document and FAQs.  These documents can be found here.  

On January 21, 2020, New Jersey Governor Phil Murphy signed the “dirty dirt” bill that requires businesses engaged in soil and fill recycling to comply with the background checks and licensing requirements currently imposed on the solid waste industry. The underlying history of improper soil disposal practices which motivated enactment of the new law is addressed in an earlier CSG Environmental Blog post.

Licensing requirements are no longer limited to solid and hazardous waste haulers and certain facilities. Now, any entity engaged in “soil and fill recycling services” must register with the DEP by April 20, 2020, and then apply for a license (or a 90 day extension) by October 17, 2020.

Use of virgin quarry products, including rock, stone, gravel, sand and clay, is exempt from the licensing requirements. Utilization of beneficial use material – which is material that would otherwise be solid waste but is instead used as landfill cover, aggregate substitute, fuel substitute or fill material – is also exempt from the licensing requirements if the generator has obtained prior approval from DEP to transport to a designated destination. Such approvals will likely result in construction delays.

Regarding site development and site remediation, the statute raises serious questions that DEP should quickly address with guidance and subsequent regulations. For example, consultants engaging in assisting clients with the disposition of soil materials could now be considered “brokers” who must be licensed. Likewise, while the term “consultant” excludes LSRPs, that exclusion does not appear to exclude environmental consultants, or even those working under the supervision of an LSRP. Likewise, the statute appears to require that developers retain only licensed consultants before clean fill can be transported between sites (as is routinely done to balance fill needs).

In addition, the law empowers the DEP, a local board of health, and a county health department to enter and take samples from any premises “used in connection with the provision of soil and fill recycling services in order to determine compliance with” a registration or license issued under this statute and “any other applicable law, and rules and regulations adopted pursuant thereto.” That provision has the potential to significantly disrupt construction projects, particularly if interpreted to include sites receiving recycled fill.

Finally, in concert with the new licensing requirements, the DEP has released a proposed model ordinance that it encourages municipalities to adopt which imposes permit requirements on the placement of fill at sites not undergoing remediation. Specifically, the model ordinance would require that all soil placed at a site meet the DEP’s residential and non-residential soil remediation standards. The proposed ordinance does not set forth sampling protocol – creating the potential for a statewide mosaic of standards, and delays of construction projects.

In a rule proposal published in the Federal Register on January 10, 2020, the Trump administration is proposing the first significant regulatory changes to the 50-year old National Environmental Policy Act (“NEPA”) since the implementing regulations were promulgated by the Council on Environmental Quality (“CEQ”)  in 1978.  Several provisions appear to be in direct contravention to the statute. The proposed rules will allow approval of major infrastructure and other energy and pipeline projects without the same level of detailed environmental review required under the current rules.  Fewer projects would require review of their potential impact to land, water, air or wildlife under the proposed rules, as the proposed rules would create a new category of projects  as “non-major” federal actions.

Additionally, in what has already been deemed to be an effort to avoid consideration of a project’s potential impact to climate change, the proposal includes provisions that would only require analysis of environmental impacts that are “reasonably foreseeable” and have a “reasonably close causal relationship” to the project. Nor would a project’s cumulative environmental effects have to be considered.

The proposal would set a presumptive two-year time limit for environmental impact statements, and a one-year limit for the less rigorous environmental assessments under NEPA, which would be considerably shorter than the average duration of review under the current system.

Public comments on the proposal must be received by the CEQ by March 10, 2020.  The CEQ will almost certainly receive thousands of comments, both strongly in support and stringently objecting, so, stay tuned….

The proposal can be found here.

Last month, the NJDEP announced $13.5 million in funding available for local projects to improve water quality and to prevent harmful algal blooms (“HABs”).  HABs affected numerous fresh water bodies in New Jersey last summer, most notably, Lake Hopatcong and Greenwood Lake.  The funding includes $3.5 million in grants for which NJDEP has issued requests for proposals (“RFPs”) to local governmental authorities, interstate agencies, academic institutions and non-profit organizations.  The program also includes $10 million in Clean Water Revolving Fund money as principal forgiveness funding for local and county government projects.  The details of the announcement are here, and the RFPs are here.  Responses to an RFP for Grants to Prevent, Mitigate and/or Control of Freshwater HABs are due by Monday, January 13, 2020, while responses to an RFP for Water Quality Restoration Grants for Nonpoint Source Pollution are due by Monday, February 10, 2020.

HAB is the name given to the excessing growth or “bloom” of cyanobacteria due to excessive light, elevated temperatures and/or elevated nutrient loads in the water.  HABs can harm both people and pets that drink or swim in HAB waters by causing rashes, allergy-like reactions, flu-like symptoms, gastroenteritis, and irritations to eyes and respiration.  The NJDEP has also advised that fish or shellfish caught from waters with HAB should not be eaten.  The NJDEP recently issued an HAB fact sheet that provides a summary of HABs and how to report an HAB.

Last summer, 70 suspected HABs were reported, with 39 confirmed.  Closings of beaches and limitations on recreation at lakes negatively impacted summer tourism in 2019, which the State does not want to experience again in 2020.   The HAB mitigation projects will presumably be aimed at reducing surface water runoff and improving drainage systems to mitigate contaminant loading into surface waters that cause HABs.  These funding incentives will certainly encourage the control of non-point pollution sources that cause HABs.

On December 12, 2019, the New Jersey Department of Environmental Protection (“NJDEP”) held the first meeting of the Interagency Council on Climate Change, a panel created by Executive Order 89 issued by Governor Murphy.  At that meeting, NJDEP released a study prepared by Rutgers University and leading climate change experts which found that New Jersey has experienced in the past – and will experience in the future – much greater impacts from sea level rise than on average around the globe.  The report also notes the likelihood of increased frequency of tidal flooding and more significant impacts from coastal storms.  Because of our location and extensive coast line, New Jersey has been by some likened to “ground zero” for climate change.

What does all this mean?

The Interagency Council is directed to develop a Statewide Climate Change Strategy.  The conclusions of the Rutgers report demonstrate further why both the development and implementation of this strategy must proceed as quickly as possible.  The strategy should include changes in regulations to ensure that future development is resilient and takes sea level rise into account; that programs and resources are put in place to increase the resiliency of existing development; and that ongoing steps are taken to reduce greenhouse gas emissions.  Commitments should be made to invest in infrastructure to ameliorate sea level rise impacts, while at the same time preserving coastal marshlands and other natural areas that are protective of climate change impacts.  Businesses, municipalities, citizen groups and all concerned citizens should become active in helping to shape and implement this strategy.

The conclusions of the report are sobering to say the least.   Sea level rise along the New Jersey coast is projected to be an additional 1.3 to 2.7 feet by 2070 even if greenhouse gas emissions are reduced globally.  The time to prepare is now.

In November, the Third Circuit Court of Appeals affirmed a granting of summary judgment by the District Court for the District of New Jersey. The Court of Appeals determined that the current property owner’s claim for contribution pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was untimely because the statute of limitations for contribution claims begins to accrue when the party seeking contribution administratively settles its liability. That decision, Cranbury Brick Yard, LLC v. United States of America, fills one of the statutory gaps that exists in CERCLA.

The site in the case was a weapons manufacturing facility in Cranbury, New Jersey. During World War II and the Korean War, Unexcelled Manufacturing Co. manufactured bombs, anti-aircraft ammunition, grenade fuses, and other high-powered weapons for the U.S. Military. Following an investigation of the site by the New Jersey Department of Environmental Protection (NJDEP), a directive identified several responsible parties, including the former owner of the site and the U.S. Navy. Continue Reading Third Circuit Fills Gap Left by CERCLA

In December 2019, a bill to amend New Jersey’s A-901 licensing program cleared two hurdles in the Assembly on its way to a full floor vote and possible presentment to the Governor. New Jersey Senate Bill 2306 (Assembly Bill 4267), which unanimously cleared the Senate in June, seeks to amend existing law to require background checks for “a broader range of persons” participating in the State’s solid waste industry.

In response to a heavy infiltration of organized crime into the solid-waste transportation industry, the Legislature put into place in 1984 a legal and regulatory framework under which businesses seeking to enter the solid-waste industry as a transporter, facility, or broker must clear several hurdles in order to operate. Among those hurdles is the time-consuming A-901 approval process, which generally requires would-be market participants to submit to criminal background checks, fingerprinting, and annual disclosure statements in order to obtain and maintain a license to operate in the solid-waste industry in New Jersey. Unsurprisingly, there are exceptions to that general rule, most notable of which is that the A-901 approval process does not currently apply to businesses engaged in recycling operations. There are also other limited exceptions to the A-901 approval process, such as for self-generators of solid waste. Continue Reading New Jersey Legislature Considering Bill to Amend A-901 Applicability

Once again, a recent Appellate Division Panel opinion has environmental lawyers and their clients realizing that the New Jersey Department of Environmental Protection (“DEP”) may collect penalties in the state’s municipal courts.  This time, the case concerned penalties assessed by DEP for failure to follow state site remediation requirements imposed by the Site Remediation and Reform Act.  The court’s holding that municipal courts have jurisdiction to impose such civil penalties is not surprising.  Yet, for some reason, being hauled into municipal court is often an unpleasant surprise to those who are.

Maybe that reason is unfamiliarity with the municipal courts themselves.  Every one of New Jersey’s 565 municipalities either have individual stand-alone courts, share judicial or administrative service with another municipal court or are part of joint municipal courts. Each court has at least one judge selected by the municipality or municipalities, one prosecutor and one public defender.  Municipal courts have limited jurisdiction and cases are tried without a jury.  Cases before these courts generally are limited to motor vehicle and parking tickets, disorderly persons offenses and petty disorderly persons offenses, for which a jail sentence is up to six months, municipal ordinance offenses, and other offenses which include fish and game violations.  As between the Superior Court and a municipal court, municipal court cases usually come to trial more quickly.  Unless terms for payment are available, fines are immediately payable to the court clerk.  Appeal is to the Superior Court and if the judgment is reversed, fines and costs will be returned.

Judges are political appointments by the municipal governments with a three year term.  Most of these courts and judges, except in rural areas, are busy.  Over six million cases come through New Jersey municipal courts each year.  Out of those cases, approximately 50 are DEP penalty assessment actions.  So the statewide odds of a municipal court case being a DEP penalty enforcement action in the municipal court in one year is roughly 120,000 to one.

In seeking to obtain a penalty, DEP has two other alternatives besides municipal court.  One is an action in the Superior Court.  Generally such actions are filed as a summary action to the Penalty Enforcement Law (N.J.S.A. 2A:58-10 et seq.) without the right to a jury.  It may take some time for the matter to move forward in the Superior Court; certainly more slowly than in the municipal court.  When the case reaches a judge, that judge will have been appointed by the governor and approved by the state senate and he or she will hear testimony on any disputed issues and set any penalty.  There’s a greater chance that a Superior Court judge will have some experience with environmental litigation than will a municipal judge.  DEP’s penalties, in many cases, run up to $50,000 per day for each violation and each day the violation continues is a separate violation, a penalty range rarely if ever seen by a municipal court judge as municipal judges deal with fines of $2,000 or less in most of their cases.

The third and most common way DEP may seek a penalty is in an administrative action that starts with the issuance of an Administrative Order and Notice of Civil Administrative Penalty Assessment.  The alleged violator may timely request an administrative hearing before a judge from the Office of Administrative Law and, at a hearing over genuinely disputed fact, present its case.  These are the judges most likely to be familiar on a day-to-day basis with environmental law and penalties.  However, these judges are not the last word on a matter because the law allows the DEP Commissioner to overturn an OAL judge’s opinion.  Appeal is to the Appellate Division.

So, why is being in the municipal court defending a DEP complaint an unpleasant surprise?  Because, in general, the municipal court judge is surprised; surprised if he or she is unfamiliar with the Special Form of Complaint and Summon in Penalty Enforcement Proceedings, and surprised that there’s an environmental issue present in the very municipality that appointed him or her as a judge.  Because the DEP often sends to court only the inspector who signed the complaint, counsel for the alleged violator may be asked by the court to explain the court’s jurisdiction and its application of the Penalty Enforcement Law, none of which should be his or her job.  Finally, no matter how often an alleged violator is told by counsel that the court is impartial and fair, there is always a chance the alleged violator will believe the court interprets the facts and sets the penalty to enable the DEP, an agency the court rarely sees before it, to accomplish its perceived statutory responsibilities.

But, of course, the alleged violator does not pick the courts or the OAL.  The DEP does.  It’s legal forum shopping and the DEP’s decision will be the one that best advantages the DEP, not the alleged violator.

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.