DEP Denies Initial Waiver Requests
Since August 1, 2012, the New Jersey DEP has been entertaining applications for relief pursuant to its rules governing the waiver of DEP regulations. In the first two cases in which DEP has decided waiver applications on their merits, DEP denied both waiver requests. In one case, the applicant sought a waiver from the Filled […]
First Lawsuit Filed Over Gloucester County Train Derailment
On December 6, 2012, Alice Breeman, individually and as guardian for her children, filed suit against Consolidated Rail Corp., Norfolk Southern Railway Co. and CSX Transportation, Inc. in Breeman et al. v. Consolidated Rail Corp., Docket No. 12-07468 (D.N.J. Dec. 6, 2012). The lawsuit alleges theories of negligence in response to the freight train derailment […]
New Jersey Spill Act: Innocent Purchaser Defense
Landowners seeking to avoid liability under the New Jersey Spill Act for prior discharges of hazardous substances can attempt to do so by affirmatively establishing the elements of the “innocent purchaser” defense. Establishing “innocence” depends in large part on meeting due diligence requirements to establish that “all appropriate inquiry” into prior ownership and uses of […]
Court Rejects Effort to Shift Blame to Environmental Consultants
In a December 19, 2012 decision, the Appellate Division of Superior Court made clear that a property owner or operator cannot escape liability for environmental compliance by shifting blame to their environmental consultants. In 2000, Ross Fogg Enterprises detected a leak in the underground storage tanks at its gas station property. DEP directed Ross Fogg […]
FEMA To Release New Advisory Base Flow Elevations Maps
This week and next the Federal Emergency Management Agency (“FEMA”) is going release Advisory Base Flow Elevations on maps which will determine the required elevation of structures in connection with the Federal Flood Insurance Program and will also be used by NJDEP in certain areas. Some of these new maps will be released this week […]
DEP Waives Some Permitting Requirements To Promote Rebuilding After Sandy
The devastation caused by Hurricane Sandy is massive and the loss of lives, homes and belongings is heartbreaking. The recovery effort will present many practical challenges and legal issues. Those who seek to reconstruct destroyed or damaged property will likely need to address environmental issues, particularly in the coastal areas. Department of Environmental Protection (“DEP”) […]
Advisory for Immediate Evaluation of Contaminated Sites
In light of significant flooding experienced with Hurricane Sandy, we are advising all clients currently remediating contaminated sites, or currently investigating suspected contaminated sites, to consider retention of an environmental consultant to evaluate current conditions. Creating an environmental benchmark is particularly important given (1) the availability of “off-site” contamination exemptions under applicable environmental statutes and […]
Supreme Court Rules Against DEP on Spill Act Proofs
In a September 26, 2012 decision, the New Jersey Supreme Court decided that to recover money damages under the Spill Compensation and Control Act (Spill Act), it is not enough for DEP simply to prove that a defendant discharged a hazardous substance present at the contaminated site. Rather, to obtain monetary damages DEP must show […]
NJ Appellate Court Invalidates NJDEP Regulations for Exemption From The Industrial Site Recovery Act
On July 6, 2012 the Appellate Division of the New Jersey Superior Court invalidated precise NJDEP Regulations which exempt certain facilities from the Industrial Site Recover Act (ISRA). In De Champs Laboratories, Inc. v. Martin, Docket No. A-3235-10T4 (App. Div. July 6, 2012), the Appellate Division invalidated ISRA Regulations requiring “De Minimis Quantity” applicants to […]
Waiver Rule In Jeopardy?
A significant challenge to the DEP’s adopted “Waiver Rule” was made yesterday in the New Jersey Assembly Environment and Solid Waste Committee. The Committee released Assembly Concurrent Resolution 37 (ACR37) http://www.njleg.state.nj.us/2012/Bills/ACR/37_I1.HTM from committee with a 3-2 vote. Relying on its regulatory oversight set forth in Article V, Section IV, paragraph 6 of the Constitution of […]
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