Remediation Programs Update from NJDEP
November 9, 2023
Posted by David J. Miller
Co-Authored by Matthew L. Capone
This fall, the New Jersey Department of Environmental Protection (“NJDEP”) announced the relaunch of two impactful resources for site remediation, the Brownfield Development Area (“BDA”) Program and the Technical Review Panel (“TRP”).
The BDA Program allows selected communities which are affected by multiple brownfield sites to work with Contaminated Site Remediation & Redevelopment (“CSRR”) to design and implement remediation and reuse plans for the affected properties simultaneously. Participation in the BDA Program is voluntary and does not affect the application of New Jersey’s other remediation laws, policies, and guidance on properties within a BDA, but does offer incentives to eligible municipalities and redevelopment authorities, including up to $5 million in grants through the Hazardous Discharge Site Remediation Fund. Read more
The Uniform Public Expression Protection Act: New Jersey’s Recently Enacted Anti-SLAPP Legislation
September 15, 2023
Posted by Afiyfa H. Ellington
On September 7, 2023, New Jersey enacted the Uniform Public Expression Protection Act (“UPEPA”), which provides for an expedited procedural dismissal process against a party who has filed a Strategic Lawsuit against Public Participation (“SLAPP”), a lawsuit brought on by individuals and companies seeking to stop critics from making public statements against them.
The UPEPA applies to an individual or company who files a cause of action in a civil action lawsuit against another individual or company based on the person’s communications on an issue under consideration or review by any branch of government. The UPEPA also protects the exercise of freedom of speech rights contained in the constitutions of the United States and the State of New Jersey. Read more
BRICK AND STAFFORD CAFRA IMPERVIOUS AND VEGETATIVE COVER CHANGES
July 21, 2023
Posted by Michael P. Castore
On July 3, 2023, DEP issued notices of adoption accepting new and changed State Plan Policy Map Planning Area (“PA”) and Community Development (“CD”) boundaries, approved by the State Planning Commission as the boundaries for Coastal PAs and CAFRA Centers and Nodes, for Brick Township and Stafford Township. The map amendments being implemented by DEP include the entirety of both municipalities, and the changed Coastal PA boundaries will be incorporated into N.J.A.C. 7:7-13 for the purposes of applying impervious and vegetative cover requirements under CAFRA, some of which are described below. Read more
First Of Its Kind With More To Follow: NJDEP Settlement Proposal Addresses PFAS Contamination
July 11, 2023
Posted by Marc D. Policastro
Co-Authored by Matthew L. Capone
On June 28, 2023, the New Jersey Department of Environmental Protection (“NJDEP”) reached a proposed settlement with Solvay Specialty Polymers USA, LLC (“Solvay”) over Solvay’s discharging of per- and polyfluoroalkyl substances (“PFAS”) and other contaminants into public drinking water during Solvay’s thirty-year operation of a 243-acre chemical manufacturing plant in West Deptford, New Jersey. Solvay, which was subject to a Statewide Directive regarding PFAS contamination of regional potable groundwater sources by NJDEP in March 2019, could not reach a resolution with the Department on testing and remediation of the Site – resulting in NJDEP filing a lawsuit against the manufacturer in November 2020. Read more
NJDEP Creates Avenue for Prioritized RAP Application Review
July 11, 2023
Posted by Marc D. Policastro
Co-Authored by Matthew L. Capone
The New Jersey Department of Environmental Protection (“DEP”) has instituted a new procedure for expediting the evaluation and review of certain Remedial Action Permit (“RAP”) Applications through the creation of a new Application Addendum form, available here.
This Application Addendum form allows a RAP applicant to be considered for prioritized review if the implemented remedial action is among five (5) preapproved categories set forth by the DEP. These five approved RAP types include:
- An Initial Soil RAP Application where the restricted use soil remedial action does not include an engineering control;
- An Initial Soil RAP Application for soil contamination at schools, childcare centers, and residences where a presumptive remedy under N.J.A.C. 7:26E-5.3 is used, but is not required;
- An Initial Soil RAP Application for soil contamination at schools, childcare centers, and residences where an alternative remedy pursuant to N.J.A.C. 7:26E-5.3 has been pre-approved by the Department;
- An Initial Soil RAP Application where historic fill is the only area of concern being addressed by the RAP Application; and
- An Initial Ground Water RAP Application for Monitored Natural Attenuation where the extent of the Classification Exception Area is limited to the property boundaries and no receptors are impacted.
For those sites meeting the above criteria, the DEP is accepting this Application Addendum both as a part of new applications and as an addition to pending applications. For those who have a pending RAP Application, a completed Application Addendum may be emailed to csrr_brap_submissions@dep.nj.gov.
The prioritized Application Addendum is a new development in the RAP Application process, and a situation the attorneys at Giordano, Halleran & Ciesla are continuing to monitor. For a more in-depth review of how this change impacts your site’s RAP Application, contact our environmental law attorneys here.
PACT Flood Hazard & Stormwater Management Rules Update
June 6, 2023
Posted by Steven M. Dalton
Updating our prior alerts regarding the previously published Flood Hazard and Stormwater Protection Against Climate Threats rule proposal, NJDEP has filed the rule for publication of adoption. With this action, it is anticipated that the notice of adoption will be published in either the July 3 or July 17 New Jersey Register, and the amended rules will become immediately effective upon adoption. The amendments will substantially change the design flood elevation of regulated fluvial flood hazard areas, implementing up to a 3 foot increase in regulated fluvial flood hazard area elevations statewide. The amendments will also require regulated major development to design stormwater facilities to manage stormwater runoff for both present-day storms, and future storms utilizing year 2100 rainfall projections that are significantly higher than current rainfall data.
A courtesy copy of the draft adoption can be found here. Of note, NJDEP is proposing to change an element of the grandfathering/legacy approval provisions benefiting projects that are not subject to jurisdiction under the current Flood Hazard rules. The rule proposal provides that projects currently subject to Flood Hazard jurisdiction must have applications deemed administratively and technically complete prior to publication of the adoption notice in the New Jersey Register to be grandfathered. However, if no Flood Hazard approval is currently required for a project under the existing rules, the rule as revised in the adoption notice (see N.J.A.C. 7:13-2.1(c)4) provides for grandfathering protection for projects currently outside of flood hazard jurisdiction if, prior to adoption, they secured a qualifying local approval under the MLUL, such as site plan or subdivision approval, or a building or construction permit. If such local approvals are not required, grandfathering may still be achieved if construction commences prior to the effective date of the rules. The initial proposal contemplated grandfathering only if all required approvals were obtained and the regulated activity commenced prior to the effective date of the new rules, which would have made it more difficult for projects that currently do not require a permit to qualify for grandfathering protection.
If you have questions regarding qualification for grandfathering or how the forthcoming rules may affect your project, please contact one of our attorneys.
U.S. Supreme Court Defines Regulated Freshwater – Wetlands Under the Clean Water Act
May 30, 2023
Posted by Michael J. Gross
On May 25, 2023, the U.S. Supreme Court decided that the Federal Clean Water Act only gives the federal government authority to regulate any relatively permanent body of water connected to traditional interstate navigable waters and only wetlands that have a continuous surface connection with that navigable water making it difficult to determine where the water ends, and the wetland begins. This modifies the standard currently used by the Army Corps of Engineers that requires only a nexus between the wetlands and navigable waters. This decision should not have a significant impact on regulation of freshwater wetlands in the State of New Jersey. The Army Corps of Engineers, under the Clean Water Act, only regulates freshwater wetlands that are located within 1000 feet of the mean high-water line. It does so as does the State of New Jersey, which has authority under its own Freshwater Wetlands Protection Act. The practical impact of this U.S. Supreme Court decision is that it narrows the circumstances in which applicants must obtain approvals from both the Army Corps of Engineers and the New Jersey Department of Environmental Protection.
PACT 1 Rules Flood Hazard Area and Stormwater Management Regulations
April 25, 2023
Posted by Michael J. Gross
Since these final regulations were not submitted by April 21, 2023, they will not be published in the May 15, 2023 New Jersey Register. The next New Jersey Register in which these regulations can be published is on June 5, 2023. For any pending Flood Hazard Area applications, they must be deemed administratively and technically complete prior to publication in the New Jersey Register to be grandfathered from these new regulations.
Revised Flood Hazard Area Control Act & Stormwater Rules to be Proposed on December 2, 2022
November 10, 2022
Posted by Steven M. Dalton
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NJDEP Publishes New PFAS Standards
October 19, 2022
Posted by David J. Miller
On October 17, 2022, the New Jersey Department of Environmental Protection (“DEP”) published interim soil remediation standards for several hazardous substances often characterized as “emerging contaminants.” Specifically, DEP established interim standards for perfluorononanoic acid (PFNA), perfluorooctanoic acid (PFOA), hexafluoropropylene oxide dimer acid and its ammonium salt (GenX), perfluorooctanoic acid (PFOA), and perfluorooctane sulfonate (PFOS). Among these are so-called “Forever Chemicals” – namely, perfluoroalkyl substances (PFAS), a family of over 4,700 compounds that do not occur naturally and do not readily degrade over time. The new soil remediation standards include criterion based on various exposure pathways for substances included in the rulemaking.
The interim remediation standards were published in the New Jersey Register on October 17, 2022 and can be reviewed in full here. DEP advises that it considers the interim standards to be in effect for all current and future site remediation cases in New Jersey. Parties conducting remediation or environmental due diligence in connection with the potential acquisition of property in New Jersey should consult their environmental professionals regarding the impact of the new standards.
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