Environmental & Energy Law Monitor : Environmental & Energy Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Brownfield & Climate Change Law

In the Matter of Crompton Colors, Inc., No. A 0778 09T1 (App. Div. 10/27/11), the NJ Appellate Division ruled that a property owner is entitled to have an administrative hearing regarding the rescission of a no further action letter (“NFA Letter”) by the DEP.  In this case, a subsidiary of Hartz Mountain Industries, a former landlord of an industrial tenant named Crompton Colors, Inc., appealed DEP’s rescission of an NFA Letter issued in 2002 and the denial of its request for a hearing to contest the decision. 

Hartz purchased the property located in Bloomfield, NJ in 1965 and leased to Peerless Bindery.  The property consisted of a warehouse and an office building.  In 1990, the buildings were demolished and a 10,000 gallon heating oil underground storage tank was removed.  According to the Report submitted by Hartz to DEP, petroleum product was encountered in the soil and floating on the groundwater.  The impacted soil was subsequently excavated and the floating oil was removed.  Although groundwater monitoring wells initially did not detect any contamination, a second round of sampling revealed slight exceedences for petroleum constituents.  At that point, additional soil was removed from this area and residual petroleum in fill material was left in place and covered with the newly constructed warehouse concrete slab.

The property was subdivided into two lots in 1991.  One lot was occupied by the new warehouse that was leased by a predecessor of Crompton Colors and the second lot was leased to a daycare center.  A Remedial Action Work Plan was submitted to DEP in January of 1996, which was found by DEP to be unacceptable.  Hartz then submitted a Remedial Investigation Report that discussed the results of the supplemental soil and groundwater sampling, which showed elevated levels of semi volatile organic compounds that are typical of urban fill material.  As the contamination was detected in an area that is located up-gradient from the former tank, the report concluded that the contaminants were unrelated to the tank.  The DEP issued an NFA Letter with respect to the former tank but required further investigation to confirm that the source of the contamination was from an off site source.  Hartz did not implement the requested additional investigation.  The environmental documents referenced the street address as 60 West Street, which represented the original address of the undivided property.  However, after the property had been subdivided, the warehouse facility was known as 50 West Street.

In 2001, the Industrial Site Recovery Act (“ISRA”) was triggered when Crompton Colors ceased operations at the warehouse.  Crompton Colors filed the appropriate paperwork using the 50 West Street address relying on the prior tank NFA letter.  However, DEP responded that the site known as 50 West Street was not eligible for an expedited review because it had not been previously issued an NFA Letter.  Crompton Colors then prepared and submitted a Preliminary Assessment, along with revised paperwork with the correct lot number requesting DEP issue an NFA.  Crompton Colors did not disclose, however, the presence of soil and groundwater contamination that had been identified in the 1996 NFA Letter.  In 2002, DEP issued the NFA Letter for the Crompton Colors’ ISRA case.

In 2004, DEP was under pressure to re-evaluate closed cases in response to a situation where a daycare facility began operating at a former thermometer manufacturing facility where significant mercury contamination was discovered.  As a result of this incident, DEP mapped all known childcare centers and schools within a 500 foot radius of contaminated sites and re-examined all open and closed DEP cases within the radius to determine whether any of these properties could adversely impact the childcare facilities.  As a result of the childcare center being located at the Bloomfield property, DEP reviewed the 2002 NFA determination and concluded that the contamination not addressed by Hartz in 1996 was located at 50 West Street.  Therefore, DEP rescinded the NFA Letter issued in 2002 and directed Hartz and Crompton’s successor, Chemtura, to investigate potential vapor intrusion concerns at the childcare center.

Hartz argued that DEP did not have the basis to reopen the case or the authority to require a vapor intrusion study and requested an administrative hearing.  DEP rejected the claims that the contamination was from an off site source as they concluded that the nearest potential off site source was more than a ½ mile away in a down-gradient location.  The DEP also denied the request for a hearing, stating that DEP was merely requesting Hartz to submit documentation and perform studies Hartz should have done as part of its original application in 2002. 

The Appellate Division stated that the revocation of the NFA was a rescission of the permission DEP provided Hartz in 2002 to convey the property free and clear of any remedial obligations under ISRA.  The Court found that the directives to perform environmental studies fell in the purview of N.J.S.A. 13:1K 13.1b, which expressly provides that DEP is required to give a recipient of an order requiring abatement of a violation notice of its rights to a hearing.  Although Hartz will now be afforded the opportunity to participate in an administrative hearing, it must present evidence that challenges DEP’s conclusion that the contamination that triggered the “reopener” is not from an off site source.  As the DEP is typically given significant discretion over technical determinations, Hartz will be hard pressed to show DEP acted in an arbitrary and capricious manner and have DEP’s decision over turned.

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Being able to dispose of wastewater is a key element in any development, redevelopment or expansion project.  However, a process is underway in New Jersey that may remove properties from existing sewer service areas. 

The New Jersey Water Quality Planning Act requires, among other things, that the New Jersey Department of Environmental Protection establish a planning process for wastewater management.  NJDEP adopted the Water Quality Management Planning Rules, which were amended in 2008. 

Counties are generally responsible for developing a Wastewater Management Plan  which governs, in part, the distribution of sewer service within the County.  Several counties (Bergen, Passaic, Union and Warren), however, have “opted out” and will not be issuing Wastewater Management Plans.  In those cases, a regional utility authority or municipality establishes the plan for NJDEP approval. 

Generally, the Wastewater Management Plan compares the available treatment capacity of existing wastewater treatment plants with expected demand from future development.  If that analysis shows that there could be a shortage of wastewater treatment capacity based upon possible future development, then properties will need to be excluded from the applicable sewer service area to limit the future wastewater demand.  Additionally, the NJDEP rules do not allow sewer service in areas identified by the NJDEP as “environmentally sensitive areas”.  Environmentally sensitive areas include, for instance, certain wetlands and threatened and endangered species habitat.  If the NJDEP believes that your property includes environmentally sensitive areas, then it would be excluded from the future sewer service area.

The process of redrawing sewer service area maps is currently underway statewide, and many properties may be removed from sewer service areas.  In redrawing these maps, the NJDEP may be using out-dated and unreliable data.  For instance, the NJDEP computer mapping may show a wetland on your property, while on the ground there are no wetlands.  Nevertheless, once the sewer service area maps are finalized, there will be a presumption that the NJDEP maps of environmentally sensitive areas are valid.  It will therefore be very difficult to challenge the final sewer service area maps.  A much better course of action is to challenge the draft sewer service area maps.

Finally, if you are excluded from a sewer service area, don’t count on using a septic system to handle your wastewater – the NJDEP has tightened the standards applicable to septic systems too.

It is therefore critical to determine – right now – whether your property is being slated for removal from the sewer service area.  Again, this should be done before the new maps go into effect, because it will be easier to correct the draft map than revise a final map.

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This article is a follow-up to our prior post of July 31, 2009 dealing with this issue.  As you may know, the New Jersey Department of Environmental Protection (“NJDEP”) enacted a notification and public outreach rule, N.J.A.C. 7:26E-1.4 et seq., in September of 2008.  The regulation requires responsible parties who are conducting an environmental investigation or remediation at contaminated sites to provide various public notifications and outreach activities.  In general, the notification letters contain the name of the responsible party, address, tax block and lot, NJDEP ID number, brief description of the type of contaminant and actions being taken, contact information and a statement indicating the municipality may request that the person conducting the remediation provide copies of all environmental reports.  The regulation provided that most of these notifications had to be completed prior to September 2, 2009. 

As the cases have progressed and the new Licensed Site Remediation Professional Program has been implemented, responsible parties may have been distracted from the details of this public notification rule.  Specifically, the public notification and outreach requirements are continual.  If a responsible party chose to comply with its public notification requirements by sending letters to owners and operators of property within 200 feet of the site boundary instead of posting a sign, updated notification letters detailing the current condition and progress of their remediation must be sent every 2 years until all the required remediation is completed and the final remediation document is filed or issued (No Further Action Letter or Response Action Outcome).  Therefore, if you sent out public notification letters prior to the former September 2, 2009 deadline and your cleanup is not yet complete, you must issue updated public notification letters prior to September 2, 2011.  Two years ago, we were skeptical as to the reaction the public would have to these notification letters, but for the most part, the reaction has not been significant or problematic.

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In the case of Litgo v. Martin, 2011 WL 65933 (D.N.J. Jan. 7, 2011) the federal District Court of New Jersey held that a shareholder of a single-purpose entity that owns a contaminated facility is liable as a current operator under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 9601 et al. (“CERCLA”).  In 1983, the New Jersey Department of Environmental Protection (“NJDEP”) was ordered to clean up a property located in Newark, New Jersey.  NJDEP removed drums of hazardous waste from the Newark site and stored them at a warehouse located at 40 Haynes Road, Somerville, New Jersey (the “Site”).  The warehouse at the Site was determined to be contaminated with hazardous substances.

While the remediation at this Site was being conducted by NJDEP, plaintiff Sheldon Goldstein entered into negotiations with the current owner of the Site.  On August 6, 1985, the current owner of this Site entered into an agreement to sell the Site to plaintiff Goldstein.  Subsequently a dispute broke out over the sale of the Site and the Court ultimately ordered the plaintiff Goldstein to take title to the Site.  On February 14, 1990, plaintiff Goldstein took title to the Site and pursuant to the contract of sale assumed the obligations to clean up the Site.  On April 14, 1990, plaintiff Goldstein transferred the Site to plaintiff Litgo New Jersey, Inc.

In 2006, plaintiffs filed suit against NJDEP alleging that the State failed to properly remediate the Site.  Plaintiffs’ suit was under various claims including CERCLA.  The NJDEP filed a counterclaim.  At trial, the District Court found that plaintiff Goldstein, as a shareholder in Litgo, the current owner of the Site, was liable under CERCLA as a current operator.  On a motion for reconsideration, the Court upheld the trial Court’s determination regarding plaintiff Goldstein’s liability as an operator.

The plaintiffs argued that Goldstein’s involvement with the cleanup of this Site was insufficient to impose liability on Goldstein as a current operator under CERCLA.  The Court addressing this issue explained that under CERCLA, past owners and operators are liable only to the extent that a discharge of hazardous substances occurred at the Site during their ownership or operations.  However, current owners and operators are liable under CERCLA regardless of whether hazardous substances were discharged at the Site during their ownership or at the time they operated at a site.  The Court observed that the parties do not dispute that Litgo, as a current owner of the Site, is liable under CERCLA.  The Court, however, dismissed the plaintiffs’ argument that Goldstein could not be held liable as a current operator.  The Court, distinguishing the cases relied upon by the Plaintiffs, concluded that because of his involvement with this Site, the plaintiff Goldstein could be liable as a current operator.  The Court specifically noted the following:

Plaintiffs have been involved with the property for two decades and were responsible for environmental compliance decisions and decisions not to proceed with the remediation. … We believed the decision to delay remediation may have increased the threat to the environment and public health. ... Given these considerations, the Court is not persuaded that it should reconsider its decision as to Goldstein’s liability.

The instructive value of this case is that sole shareholders of single entity companies can be held liable under CERCLA to cleanup contamination for which its company is responsible.  Factors that will be used in determining whether a shareholder should be held liable is the actual control the shareholder has over the day to day operations of the company causing the contamination.  By being proactive and ensuring compliance with environmental laws can a sole shareholder minimize exposure to liability for environmental contamination.

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On March 7, 2011, the New Jersey Department of Environmental Protection (“NJDEP”) proposed a rule that would enable them to relax standards set-forth in existing rules under appropriate circumstances. The goal of the proposed rule is to remove unreasonable impediments to economic growth while ensuring net environmental benefit for the State. The proposed rule establishes the conditions and procedures for the NJDEP “to approve waivers from strict compliance with its rules where rules conflict, or rules are unduly burdensome in specific application, or net environmental benefit would be realized, or public emergency exists.” The idea is to prevent or minimize the circumstances where strict compliance with a rule would lead to an unreasonable, unfair, or unintended result which in turn could adversely effect the applicant, the public, and/or the environment.

This proposed rule is consistent with Governor Chris Christie’s Executive Order No. 2, which sought to establish “Common Sense Principals” of governance. As we have consistently been hearing from the NJDEP and the Governor’s office recently, it appears that the State is willing to listen to the regulated community as to the rules effecting employers, job creators, local government and families throughout the State. NJDEP Commissioner, Bob Martin has stated, “[w]e have an opportunity to change how government operates in a positive way. We can cut through unnecessary red tape and provide real solutions to real world problems, while maintaining our high protective standards.”

The NJDEP would consider a waiver application only if one or more of the following conditions exists:

• Conflicting rules – the requirements sought to be waived conflicts with another NJDEP or other State or Federal agency rule;
• Unduly burdensome – Strict application of a rule creates an exception and undue hardship (similar to criteria for local zoning variances), or where another method of compliance would have the same or better results but at a significantly lower cost;
• Net environmental benefit – The environment would be enhanced by a project enabled by the waiver; mitigation would be allowed to be considered; and
• Public emergency – NJDEP would waive a rule to respond to an emergency.

The Commissioner makes clear that this proposal would not allow waivers to be routinely or commonly granted, but will be issued on a site by site and case by case basis.  NJDEP officials have said that it needs some flexibility to decide what makes more sense in making government work.

Critics of the proposed rule say that this is just merely a way to turn over decision making power to the NJDEP to circumvent existing environmental rules. Their concern is that the rules should apply across the board and the subjectivity of this proposed rule could counteract the application of the existing rules and regulations. Regardless of which side of the fence you fall, this proposed rule could have significant impacts on future development, re-development, as well as how property is investigated and cleaned up in New Jersey.

A public hearing on the proposed waiver rule is scheduled for April 14, 2011 at 3:00 p.m. at the NJDEP’s Headquarters in Trenton. Written comments may be submitted to NJDEP through May 6, 2011. The proposed rule is available on line at http://www.nj.gov/dep/rules/notices.html.
 

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The ecological health of Barnegat Bay is in decline, mostly resulting from human activities.  Since Barnegat Bay is a key feature of the shore experience in central New Jersey, the impact to its aesthetic, economic and recreational values threatens the economic health of the region.  In December 2010, the New Jersey Legislature enacted three statutes designed to comprehensively address the situation. Gordon Duus, Chair of the Environmental Department of Cole Schotz, recently had an article on this subject published in the February 28, 2011 issue of the New Jersey Law Journal.  Click here to read the article.

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A federal District Court in New Jersey recently ruled that the New Jersey Department of Environmental Protection (“NJDEP”) waived its rights to pursue Natural Resource Damages (“NRDs”) as a result of a letter sent to the defendant indicating that NJDEP did not intend to pursue the defendant for NRDs. FMC Corp. v. American Cyanamid, No. 01-0476 (D.N.J. 9/29/10). FMC involved a site in Franklin Township, New Jersey (the “Site”), which was placed on the federal Superfund National Priorities List in 1990. FMC Corp. (“FMC”) and the United States initiated settlement negotiations in 1997 regarding environmental remediation of the Site. During negotiations, FMC, in order to determine the extent of its liability at the Site for the environmental contamination, contacted the New Jersey Attorney General’s Office. Subsequently, the Deputy Attorney General for the State wrote to FMC in 2003 setting forth the costs the State intended to pursue for the Site. The letter also attached a memorandum from the NJDEP’s Office of Natural Resource Restoration indicating that the State would not pursue FMC for NRDs.

The State’s decision not to pursue FMC for NRDs was based on NJDEP’s policy adopted in the late 1990s that excluded on-site groundwater contamination from the assessment of NRDs in instances where there was no off-site groundwater contamination and where no other natural resources were impacted by the discharge of hazardous substances. This policy was in effect when the Deputy Attorney General wrote to FMC informing FMC that the State would not pursue FMC for NRDs.

The NJDEP subsequently revised its policy, and in 2006 filed suit against FMC seeking NRDs. FMC moved for summary judgment based on the fact that NJDEP waived its right to pursue FMC for NRDs at the Site citing the 2003 letter from the Deputy Attorney General. NJDEP cross moved to strike the affirmative defense of waiver plead by FMC arguing that its letter did not amount to a waiver. NJDEP also argued that even if a waiver had been made, “the doctrine of waiver should not be applied under the circumstances because a government agency may change policies for the benefit of the public without creating rights in parties who claim to have relied on the old policy.”

The Court agreed with FMC. While acknowledging that questions of waiver are usually questions of intent, which are factual determinations, the Court determined that there was no real question that NJDEP did not intend to pursue FMC for NRDs. The Court further noted that at the time the State wrote to FMC indicating that it would not pursue FMC for NRDs, it did not state that such a determination was subject to change in policy within NJDEP. Accordingly, the Court found that the State expressly waived its right to seek NRDs against FMC. The Court also ruled that the State could not waive its right to assess NRDs against FMC s and then later reverse its decision.

The obvious lesson from this case is that when obtaining a determination from an administrative agency, it is critical that the terms be spelled out in writing. Having the determination in writing may be your only defense in the future to protect you from an agency’s decision to reverse its determination. Although an agency may argue that it has the right to reverse its policies, as NJDEP argued in FMC, the Court may decline to uphold such a reversal.

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In October, the New Jersey Department of Environmental Protection (“DEP”) proposed several amendments to two of its site remediation regulations, the Administrative Requirements for the Remediation of Contaminated Sites (the “ARRCs”) (N.J.A.C. 7:26C) and the Technical Requirements for Site Remediation (N.J.A.C. 7:26E).

There are three primary components to the proposed amendments. The first is to extend the Mandatory and Regulatory Timeframes established under the ARRCs, the second is to clarify the definition of a vapor intrusion immediate environmental concern (“IEC”), and the third addresses timing for receptor evaluation reporting. The proposed rule changes are subject to a 60-day public comment period that expires on December 3, 2010.

Mandatory and Regulatory Timeframes

In revamping the DEP’s site remediation program through its enactment of the Site Remediation Reform Act (see January 6, 2010 post), the legislature required the DEP to enact certain mandatory and regulatory remediation timeframes.  The DEP established certain mandatory and regulatory time frames in the ARRCs. The DEP required responsible parties to undertake the following actions within one year from either March 1, 2010 (for cleanups commenced before November 4, 2009) or a specified triggering event:

• submit a preliminary assessment report and site investigation report for a cleanup under the Industrial Site Recovery Act
• submit a site investigation report under the Underground Storage of Hazardous Substances Act
• submit an initial receptor evaluation
• complete the delineation of an IEC source area, initiate IEC source control and submit to DEP an IEC Source Control Report
• complete (i) the installation of a Light Non-Aqueous Phase Liquid (“LNAPL” or “free product”) recovery system, (ii) initial operation monitoring of that system and (iii) submit to DEP an interim remedial action report

The SRRA originally contained a Regulatory Timeframe for an LNAPL recovery system report to be submitted to the DEP within 270 days after free product is identified. Under the proposed Regulatory Timeframe rule change, if free product was identified before March 1, 2010, the free product recovery system report shall be submitted to DEP by March 1, 2011 (extended from 270 days to one year). If free product is identified on or after March 1, 2010, the LNAPL Recovery System Report must be submitted to DEP within one year after discovery.

Under the proposed regulatory amendment, the one-year Mandatory Timeframe deadlines will be extended to two years. If the amendment is enacted, existing cases will have until March 1, 2012 to complete these mandatory requirements. This proposed change would provide significant flexibility to responsible parties, especially given the draconian penalties from failing to meet a Mandatory Timeframe. Those penalties include having the DEP take direct oversight/control of the cleanup and penalties of up to $20,000 per day for a continuing violation.

Note that with respect to the free product requirements, the proposed Regulatory Timeframe deadline will become one year while the Mandatory Timeframe deadline will be extended to two years. The difference relates to the fact that Regulatory Timeframes can be more easily extended than Mandatory Timeframes, which are essentially “drop-dead” deadlines.

Finally, until the amendments are approved and go into effect, responsible parties need to either continue to proceed under the currently enacted deadlines (i.e., one year) or seek approval from the DEP for an extension of the deadlines.

Vapor Intrusion

Vapor intrusion concerns relate to the potential for volatile contaminants to enter building interiors and negatively impact indoor air quality. The DEP has issued guidance for addressing vapor intrusion concerns. In that guidance, DEP has set out a number of indoor air contaminant levels which it defines as “rapid action levels.” These are contaminant levels which require immediate action, including interim remedial measures. The DEP’s proposed rule amendments make clear that an exceedance of the rapid action level for an indoor air contaminant is an IEC, which triggers certain obligations under the state cleanup rules. For instance, interim remedial measures are required within fourteen days of determining that the indoor air exceeds the rapid action level, and is thus an immediate environmental concern.

Receptor Evaluation Reporting

The current rule required a Receptor Evaluation Report to be submitted to the DEP by November 26, 2010. However, the proposed rule states that if remediation was initiated before March 1, 2010, the initial Receptor Evaluation Report must be submitted by March 1, 2011. If remediation is initiated on or after March 1, 2010, the initial receptor evaluation must be submitted within one year of the initiation of remediation. Again, this proposed Regulatory Timeframe changed from 270 days to one year.

NJDEP has issued a Compliance Advisory Update which indicates that they will not take enforcement action against the person responsible for conducting the remediation if they do not meet the regulatory timeframes contained in the current rule as long as they meet the newly proposed regulatory deadlines.

For more information on the proposed amendments to the rules governing site remediation, go to http://www.nj.gov/dep/rules/proposals/100410a.pdf and for a summary of the regulatory and mandatory timeframes go to http://www.nj.gov/dep/srp/srra/training/matrix/new_responsibilities/timeframe_req.pdf.
 

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On July 16, 2010, the New Jersey Department of Environmental Protection (“NJDEP”) Commissioner, Bob Martin, published a List of Policy Priorities and a Vision Statement (see links below) in written form that will serve as a guide for the NJDEP to be more efficient and consumer friendly. The goals of these two documents are to define the strategic vision of the NJDEP for the next four years and to provide the foundation for structural changes that will make the NJDEP an effective organization in the future. For persons who are involved in the investigation or remediation of contaminated sites in New Jersey, they are familiar with the NJDEP’s administrative processes, which sometimes can be unacceptably long. With the implementation of New Jersey’s License Site Remediation Professional (“LSRP”) program, which we have detailed in prior posts, NJDEP attempted to expedite the site remediation regulatory process. As the LSRP Program is extremely new, NJDEP seems to be auditing a high percentage of the cases within this program. However, the 2010 Vision Statement and Priorities List spans the entire NJDEP, not just the Site Remediation Program. Although Commissioner Martin acknowledged NJDEP’s core mission of protecting the environment, he emphasized the importance to be much more effective and institute a balanced implementation and enforcement of environmental laws and regulations. Commissioner Martin commented on the importance of understanding and appreciating the impact NJDEP’s actions have on economic growth and environmental protection in New Jersey. Commissioner Martin stated that “protecting the environment should drive economic growth, not impede it.” In addition, he suggested the introduction of a “new culture” within NJDEP, with customer service, flexibility and effective use of performance metrics as key components. The Vision Statement recognizes NJDEP staff as its most important asset, while simultaneously requiring them to change how they perform their functions.

NJDEP staff have been instructed to base its decisions on science, facts and data with a focus on cost/benefit analyses. NJDEP will be utilizing new technologies to streamline operations and improve service. The communication between NJDEP and the regulated community must be constant and transparent, so that decisions are fully and clearly understood. To bolster the commissioner’s claims that NJDEP will work more closely and effectively with the regulated community, on August 17, 2010, NJDEP established a process to allow LSRPs and remediating parties to meet with experienced NJDEP staff to ask site specific technical questions. This service is being offered for new cases (initiated after November 4, 2009) that have opted into the LSRP Program. The technical consultation sessions will be held in face to face meetings to discuss technical issues related to a remediation of a site. This new service is part of NJDEP’s “compliance assistance” approach and will allow LSRPs and remediating parties to move forward with confidence. Although the Commissioner’s efforts to reform the NJDEP are commendable, time will tell whether NJDEP will recognize the real world impacts its decisions have on the regulated community and whether NJDEP will truly modify its behavior.

Click on the below links to view the List of Priorities and the Vision Statement.
http://www.nj.gov/dep/commissioner/vision.pdf and http://www.nj.gov/dep/commissioner/priorities.pdf
 

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In the past couple of years, the New Jersey Department of Environmental Protection (“NJDEP”) filed more than 100 lawsuits against companies seeking compensation for restoration of damages to natural resources caused by the companies’ discharge of chemicals to the environment. NJDEP also sought compensation for the public’s loss of use of those natural resources.

These actions were based on state statute, common law claims such as claims for nuisance and trespass, as well as the public trust doctrine. Under the public trust doctrine, the State, as trustee of the state’s natural resources, is required to manage the State’s natural resources to the benefit of its citizens and to ensure that they are not injured or impaired. Natural resources include all land, air, water, flora and fauna and the activities and services provided by these resources. When companies discharge hazardous substances to the environment causing damage to these natural resources, NJDEP attempts to recover Natural Resource Damages, commonly known as “NRDs,” in addition to requiring the company to clean up the contamination.

While the lawsuits initiated by NJDEP work their way through the courts, recent decisions have clarified several issues that have been the cornerstone of NJDEP’s NRD policy. Specifically, the courts ruled that:

1. NJDEP can seek compensation for the restoration of NRDs under New Jersey’s Spill Compensation and Control Act, known as the Spill Act, and that parties causing NRDs are strictly liable. The significance of this decision is that a company can be required to compensate NJDEP for NRDs even though the discharge of chemicals that caused the damage to the natural resources was not intentionally caused or in violation of any law at the time the discharge occurred.
2. The Spill Act allows NJDEP to seek compensation for the loss of use of a natural resource such as the public’s inability to use a stream for recreational purposes because it is contaminated. Under this ruling, NJDEP can seek damages for the time period during which the public was deprived of the ability to use such natural resources. The impact of this decision increases significantly NJDEP’s demand to liable parties for damages and requires that the NRDs be restored as quickly as possible to minimize the damages arising from loss of use of the natural resource.
3. NJDEP’s formula to calculate a monetary value for the damage done to natural resources was unreliable. The Court held that NJDEP did not follow the required rule making process to establish the reliability of the formula and failed to produce sufficient scientific support to sustain the damages it was seeking. The ruling will make it more difficult for NJDEP to prove its case in future lawsuits involving NRDs.
4. Liability under the Spill Act for NRDs extends to discharge of hazardous substances that occurred prior to the enactment of the Spill Act. The impact is that discharges that occurred years ago can now be subject to a cost recovery action by NJDEP.
5. The Public Trust Doctrine, the basis upon which NJDEP seeks to recover NRDs, has been expansively interpreted to include private land such as land upland from the tidal zone on coastal property.

It is expected that a number of other issues impacting NJDEP’s NRD program will be resolved in the upcoming years. If a company is sued for NRDs, it should review its insurance coverage and acquisition documents. These documents may allow the company to seek reimbursement from other responsible parties or its insurer for any damages paid to the NJDEP for NRDs. Similarly, if a company is considering purchasing a business or real property, it must also take into consideration during contract negotiations NRD issues. Only by being proactive will a company be best prepared to address potential NRD claims.

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The Administrative Requirements For Remediation Of Contaminated Sites (“ARRCS”) were promulgated on November 4, 2009. These interim rules were issued pursuant to the Site Remediation Reform Act (“SRRA”) that was passed on May 7, 2009, which changes the way investigation and cleanups are conducted in New Jersey. These interim regulations include significant modifications to the New Jersey Department of Environmental Protection (“NJDEP”) Oversight Rules (replaced by ARRCS), and the Technical Requirements for Site Remediation (“Tech Regs”) that immediately impact existing and new cases.

These newly minted requirements apply to parties who are conducting environmental cleanups, sellers, buyers, and environmental consultants performing investigations and cleanups. The objective of the new program is to ease the burden of the NJDEP staff and case backlog by creating a Licensed Site Remediation Professional (“LSRP”) program. The LSRPs are environmental consultants with specified education and experience certified by NJDEP to perform investigations and remediation at sites in New Jersey. The new program requires the LSRP to make the decisions concerning the scope of any investigation and remediation of a site, not the NJDEP. Further, any submissions concerning the remediation of a contaminated site must be signed and certified by both the person responsible for conducting the remediation and the LSRP. In lieu of the NJDEP issuing a typical No Further Action Letter (“NFA”), LSRPs will issue a Response Action Outcome (“RAO”) certifying that the investigation and cleanup of the site was completed in accordance with the Tech Regs. However, please note that the NJDEP has a three year period in which it can “audit” the LSRP’s work, if not more, depending on the circumstances.

Contrary to previous indications by NJDEP, Irene Kropp, NJDEP Assistant Commissioner for Site Remediation, recently indicated the NJDEP will approve the vast majority of existing cases if they elect to “opt-in” to the LSRP program. The new program is designed to streamline NJDEP’s review of environmental reports by taking the majority of the work out of its hands and into the hands of the LSRPs.

If a party conducting a cleanup has reported the contamination to the NJDEP prior to November 4, 2009 and have “continuously” conducted the remediation since that notification, they will be deemed to be an existing case. If so, they may wait until May 2012 to utilize an LSRP. However, if a person initiates remediation on or after November 4, 2009, they have no choice but to hire an LSRP to conduct a cleanup of a site without prior NJDEP approval.

Highlights of New LSRP Program:

• In addition to NJDEP oversight fees being charged, there are new remediation fees that will be assessed depending on the number of areas of concern identified at a site and the type of media impacted (soil v. groundwater).
• There are numerous guidance documents and forms being created by the NJDEP associated with implementation of ARRCS and the modified Tech Regs. Although the majority of these forms have yet to be finalized, NJDEP is actively uploading them to their website (www.nj.gov/dep/srp/srra/).
• NJDEP has established mandatory timeframes for the completion of key phases of site remediation.
• Restricted use cleanups will be governed by presumptive remedies outlined by NJDEP at residential properties, daycare facilities and schools.
• Remedial action permits will be required for all restricted use remedies utilized in site cleanups.
• Responsible parties will also be required to establish a remediation funding source for the majority of cases, which would not have otherwise been required to establish such a funding source.
   

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The New Jersey Department of Environmental Protection (“NJDEP”) passed its Notification and Public Outreach Rule, N.J.A.C. 7:26E-1.4 et seq., in September of 2008. This regulation requires parties responsible for remediating sites to notify the public of ongoing remedial investigation and remedial action at sites in New Jersey. Although the regulation was adopted on September 2, 2008, the NJDEP provided a one (1) year grace period to parties responsible for cleanups that were ongoing at that time. Therefore, the deadline for compliance is September 2, 2009.

The regulations require that the party responsible for the cleanup identify sensitive populations and resources within 200 feet of the site and notify the public regarding the cleanup. In order to identify sensitive populations and resources, which are defined in the regulations to include residences, schools, day care centers, potable wells and other similar types of facilities, environmental consultants will need to complete a “sensitive populations and resources” checklist. Once the sensitive populations and resources are identified, the consultant must generate a scaled map indicating the location of those sensitive populations and resources on the map. This information must be submitted to both the NJDEP and local agencies as required by the regulation.

As to the public notification requirements, the responsible party has two (2) options: 1) post a sign at the site, or 2) send letters to each owner of real property, as shown on the current tax map, and tenants of those properties located within 200 feet of the site boundary. The letters and sign are designed to alert the public of the ongoing cleanup at the site. The legislative goal is to promote faster cleanups while at the same time furthering the state’s economic well being and development by improving the state’s business climate. The NJDEP justifies this process by stating the public requires complete information in order to properly understand risk and avoid speculation and undue concern and order their activities accordingly.

The notification letters must include the name of the responsible party, address, tax block and lot, NJDEP ID number, brief description of the type of contaminant and actions being taken, contact information and a statement indicating the municipality may request that the person conducting the remediation provide copies of all environmental reports. If a sign is chosen as the notification method, the sign must be 2 feet x 3 feet in size containing the phrase “Environmental Investigation/ Cleanup In Progress at this Site,” contact information and a “posted-on” date. The sign must be readily visible to the public and remain until a No Further Action Letter is issued for the Site. As confirmation of compliance, a photograph of the sign and a letter, similar to the neighbor notification letter, must be sent to the NJDEP, Municipal Clerk and Health Officer.

In the event contamination is migrating off-site, in addition to the notification requirements discussed above, so called “Enhanced Public Outreach” is required. Enhanced Public Outreach entails the preparation of a fact sheet that must be distributed to owners and tenants within 200 feet of the site boundary, as well as published in a local paper. The fact sheet must include a brief industrial history of the site, a complete description of contamination, actions being taken, contact information and the date the fact sheet was prepared.

In reality, these public notification requirements will likely cause more delays and possibly litigation, but we have not yet seen any adverse impact. Regardless of its potential consequences, decisions must be made very quickly as to which type of notification will be made prior to the upcoming September 2, 2009 deadline.
 

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Every day, the New Jersey Department of Environmental Protection (“NJDEP”) makes many decisions which disappoint the agency’s varied stakeholders. Individuals are upset with NJDEP land use permitting decisions, either because they prevent planned development or allow development on adjacent properties. Permit applicants are upset with limitations placed upon various wastewater or air emissions discharge permits. The ways by which parties may be unhappy with NJDEP decisions are seemingly endless. If a party is aggrieved by an NJDEP decision, what options are there? Go to Court? Seek a hearing before an administrative law judge? This article will explore some of those possibilities.

Hearings Before an Administrative Law Judge

Under the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. (the “APA”), whether a hearing before an administrative law judge is available depends upon the status of the aggrieved party. Was the petitioning party directly impacted by the NJDEP’s “permit decision” or is the petitioner a third party only indirectly impacted by the agency action? Procedurally, an aggrieved party submits a hearing request to the NJDEP Commissioner’s office. If the Commissioner determines that the petitioner has standing and the request has merit, then the Commissioner will transfer the matter to the Office of Administrative Law to be handled as a contested case before an administrative law judge. A “permit decision” is defined to mean “a decision by a State agency to grant, deny, modify, suspend or revoke any agency license, permit, certificate, approval, chapter, registration or other form of permission required by law ….” N.J.S.A. 52:14B-3.2. This definition is quite broad and would include most, if not all, public agency decisions, including, for instance, those related to land use permits, air or water emissions permits, site remediation decisions, etc.

Where the party wishing to challenge the NJDEP “permit decision” is the party directly involved in, or impacted by, the permit decision, that party has a right to contest the NJDEP “permit decision” through a contested case hearing before an administrative law judge. N.J.S.A. 52:14B-10(c).   The analysis is more complex with respect to the rights of parties other than an applicant to obtain a trial-like administrative hearing. 

The APA declares that state agencies may not promulgate rules which allow third parties to appeal from permitting decisions unless such hearings are authorized by federal or state statute. N.J.S.A. 52:14B-3.1d. Third Parties are defined to include “any person other than: [a.] An applicant for any agency license, permit, certificate, approval, chapter, registration or other form of permission required by law; [b.] A State agency; or [c.] A person who has particularized property interest sufficient to require a hearing on constitutional or statutory grounds.”  N.J.S.A. 52:14B-3.2. 

There are therefore two means by which a third party has a right to an adjudicatory hearing before an agency – either there is specific statutory entitlement to a hearing or Due Process considerations require a hearing. To establish a Due Process right, the party must “demonstrate a particularized property interest of constitutional significance that is directly affected by an agency’s permitting decision.” In re NJPDES Permit No. NJ0025241, 185 N.J. 474, 482 (2006). In NJPDES Permit, the Court noted that “third parties are generally not able to meet the stringent requirements for constitutional standing in respect of an adjudicatory hearing” and that in New Jersey, “there has been legislative recognition of the benefits derived from a rigorous review standard when inquiring into the particularized property interest that generates a third-party hearing right.” Id.

In I/M/O Freshwater Wetlands Statewide General Permits, 185 N.J. 452 (2006), the New Jersey Supreme Court looked at whether adjacent property owners had a right to a hearing to challenge permitting decisions under the Freshwater Wetlands Protection Act. The neighbors asserted that they had standing because the issuance of a wetlands permit could lead to increased flooding on their properties. In ruling that the third parties had no standing, the Court affirmed the lower court’s finding that “the objector’s claim of a particularized constitutional interest in potential worse flooding to their properties was based on pure speculation and added that the local planning board presumably would scrutinize [the developer’s] drainage system to assure that such flooding did not occur. Fear of injury to a property interest … is not a sufficient constitutional basis for an adjudicatory hearing.” I/M/O Freshwater Wetlands 185 N.J. at 461.

In addition to the standing requirements (i.e., a statutory right or a constitutionally recognized property interest), to obtain an administrative hearing a third party must also demonstrate that there are disputed material facts warranting a trial-like administrative hearing. “[A]n evidentiary hearing is mandated only when the proposed administrative action is based upon disputed adjudicatory facts.” Spalt v. New Jersey Dep’t of Envtl. Prot., 237 N.J. Super 206, 212 (App. Div. 1989). As explained in High Horizons Development Company v. Dep’t of Transportation, 120 N.J. 40 (1990), “adjudicative facts have been defined … as facts pertaining to parties and their business and activities. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. In contrast, legislative facts, the determination of which will not normally require a trial-type hearing, do not usually concern the immediate parties, but are the general facts which help the tribunal decide questions of law and policy and discretion.” High Horizons, 120 N.J. at 49-50 (internal quotations omitted).

Disputes Relating to Site Remediation

When disputes arise between the NJDEP and a party conducting a site remediation, there are several options, including a “chain of command” dispute resolution process, an expedited dispute resolution or a proceeding before the Technical Review Panel. 

As set forth in the rules governing “Department Oversight of the Remediation of Contaminated Sites,” N.J.A.C. 7:26C-1.1, et seq., and guidance relating to the Technical Review Panel, the process always involves first trying to reach a resolution with the Case Manager. See e.g., N.J.A.C. 7:26C-1.4(b)-(h). In the “chain of command” approach, if discussions with the Case Manager prove unsuccessful, a written request for dispute resolution can be sent to the Case Manager’s Section Chief. If the requester is not satisfied with the Section Chief’s response, then another written request can be submitted to the applicable Bureau Chief. If that fails, the next written request goes to the applicable Assistant Director, and the next letter then goes to the applicable Director. Finally, the last letter goes to the Director, Assistant Commissioner and Commissioner for resolution. The Commissioner-level decision is required within 21 days of the written request. A response to each of the “preliminary” letters is required within 7 days of the written request. That is the long approach. The NJDEP regulations also establish an expedited review option which circumvents the initial steps and allows for the request for dispute resolution to be submitted directly to the Commissioner. See N.J.A.C. 7:26C-1.4(i). 

If the “chain of command” or expedited review options prove unsuccessful to the party conducting the remediation, that party must go through the NJDEP’s alternative dispute resolution process before the matter will be deemed a contested case and sent by the Commissioner to the Office of Administrative Law for a hearing. See N.J.A.C. 7:26C-1.4(j)-(k). Finally, both the “chain of command” and expedited review options are significantly limited because they do not apply to, among other things, “[t]echnical issues which arise during Department oversight of remediation” or legal issues. See N.J.A.C. 7:26C-1.4(l)2 and 3.

To address technical disputes, the NJDEP has a established a process whereby the NJDEP will assemble an internal “Technical Review Panel” to review the remediation dispute. To obtain a technical panel review of a technical dispute related to a site remediation, the remediating party must first follow a process set forth in the NJDEP’s guidance. See http://www.nj.gov/dep/srp/guidance/techreview/rev_tech_disputes.htm. The first steps towards resolving the dispute are the same as those set forth above. The aggrieved party must first attempt to reach an agreement with the Case Manager, and then the Case Manager’s immediate supervisor. The process continues up the chain of command until the Case Manager’s Bureau Chief determines the issue. If the Bureau Chief’s response/resolution is still unsatisfactory, then the aggrieved party can seek review by the Technical Review Panel. The request for such review must be in writing and directed to the Assistant Commissioner of the Site Remediation and Waste Management program. The request must include a summary of the issue, the history of the attempted dispute resolution and the identification of any applicable deadlines. The party may also request a meeting before the Technical Review Panel. Finally, no new information may be presented in the request.

The Technical Review Panel will not be convened if the dispute (i) involves an enforcement action, (ii) addresses natural resource damage assessments, (iii) relates to a party’s liability for the cleanup or (iv) involves a matter of policy. If a Technical Review Panel is convened, it will consist of three Assistant Director level employees or their designated manager. A designated manager cannot be the Bureau Chief who previously reviewed the dispute. There is no required deadline for the Technical Review Panel to issue its determination.

A review of published Technical Review Panel decisions on the NJDEP’s website indicates that aggrieved parties either prevailed in their claim or, more often, received some change of the NJDEP’s initial requirements (i.e., the disputed requirements) in 35 % of the published cases (5 of 14 cases). It is an open question whether a denial of the requested relief from the Technical Review Panel would be a final agency action from which an appeal to the Appellate Division could be made. Nevertheless, were such an appeal taken, the likelihood of success would be low due to the courts’ general deference to an agency when the subject matter of the dispute falls within an agency’s particular expertise. 

Finally, it is worth noting that the newly passed Licensed Site Professional Bill (see http://www.environmentalandenergylawmonitor.com/tags/licensed-site-professional/), which is expected to be signed into law by Governor Corzine, may change the need for addressing technical disputes regarding site remediation projects. 

Going to Court

Access to the courts to challenge agency decisions generally requires that the petitioner first exhaust all of its administrative remedies. New Jersey Court Rule 2:2-3(a)(2) provides that a litigant may not generally seek appellate review of an administrative decision when “there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise.” R. 2:2-3(a)(2). Furthermore, in Abbott v. Burke, 100 N.J. 269 (1985), the New Jersey Supreme Court noted that “[in] general, available and appropriate administrative remedies should be fully explored before judicial action is sanctioned.” Id. at 296.

The Court cited three significant policy reasons for requiring exhaustion of administrative remedies: “(1) the rule ensures that claims will be heard, as a preliminary matter, by a body possessing expertise in the area; (2) administrative exhaustion allows the parties to create a factual record necessary for meaningful appellate review; and (3) the agency decision may satisfy the parties and thus obviate resort to the courts.” Id. at 297-98 (citations omitted).

Yet, the Court also indicated that “the preference for exhaustion of administrative remedies is one of convenience, not an indispensable pre-condition.” Id. 100 at 297 (citations omitted). Nevertheless, it is only in limited circumstances that a court will permit a litigant to circumvent the exhaustion requirement. Those situations include “when the administrative remedies would be futile; when irreparable harm would result; when jurisdiction of the agency is doubtful; or when an overriding public interest calls for a prompt judicial decision.” Id. at 298 (citations omitted). Additionally, the exhaustion doctrine is often inapplicable “when only a question of law need be resolved.” Id. “However, even in cases involving only legal questions, jurisdiction should remain with the agency where the agency is in a special position to interpret its enabling legislation, can conclusively resolve the issue . . . and can provide relief for the plaintiff.” Triano v. Div. of State Lottery, 306 N.J. Super. 114, 122 (App. Div. 1997).

Conclusion

As can be seen, there are many considerations which must be made in determining how to respond to an unfavorable NJDEP determination. Given the court’s and administrative law judges’ general deference to agency expertise, there can be significant hurdles to reversing NJDEP determinations. 

A version of this article appeared in the November 24, 2008 issue of the New Jersey Law Journal.

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On June 5, 2008, new legislation was introduced to address the overburdened New Jersey Department of Environmental Protection (“DEP”)’s current staff and budget constraints by expediting its report review process. Introduction of the Bill, sponsored by Senator Bob Smith, followed hearings before the State Senate Environment Committee and Assembly Environment and Solid Waste Committee at which the DEP recommended many of the proposed reforms set out in the Bill. An updated version of the Bill was issued on January 26, 2009, which was considered by the State Senate Environment Committee on February 2, 2009. The Bill proposes changes to the DEP Site Remediation Program that include the creation of a Licensed Site Professional (“LSP”) program. The LSPs are environmental consultants with specified education and experience who perform investigations and remediation at sites in New Jersey.

The Bill identifies who may become LSPs, establishes their qualifications, licensing procedures, a code of conduct and defines their role in the remediation process. In addition, the Bill establishes a separate Site Remediation Professional Licensing Board (“Board”), which is tasked with creating standards for education, training and experience that will be required of any person who applies for a license or a license renewal. The Board conducts examinations to certify that an applicant possesses sufficient knowledge of the state regulations, standards and requirements applicable to site remediation and the applicant is qualified to obtain a license or a license renewal. 

Since it will take some time for this legislation to be fully developed and implemented, after enactment of the Bill, it will provide for temporary licensing of LSPs . The Bill anticipates the applications for temporary LSP licenses will be submitted to the DEP within three (3) months of its effective date. Those seeking a temporary LSP license must have the same qualifications as a full LSP, as well as one of several professional certifications (i.e., certified hazardous materials manager from the Institute of Hazardous Materials Management, a certified groundwater professional from the National Groundwater Association, a licensed professional engineer from the National Council of Examiners for Engineers). Further, an applicant for a temporary LSP license must show that they have existing current site remediation experience. 

Within ninety (90) days of the effective date of the Bill, any submissions concerning the remediation of a contaminated site must be signed and certified by an LSP. The LSP certification required under the Bill will state that the work was performed, that the LSP managed, supervised or performed the work and that the work and submission conform to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E-1 et seq. 

The level of coordination between the LSP and the DEP depends on the ranking of the individual site. The Bill establishes a 4-tier classification system for remediation sites. 

Tier-1: A responsible party has been recalcitrant and has failed to complete the remedial investigation after an extended period of time. DEP would review and approve/disapprove all LSP submissions and select the remedial action. Financial assurance would be required in the form of a trust fund, with DEP to pre-approve any payments out of the trust fund.  

Tier-2: High priority sites for economic development; or within brownfield development areas (commercial or industrial sites that are vacant or underutilized and contaminated) or other economic development priority areas; or posing significant detrimental impact on the public or the environment; or effecting sensitive populations such as child care or school facilities; or subject of federal oversight. DEP would review and approve/disapprove all LSP submissions. 

Tier-3: Sites that are not Tier-1, Tier-2 or Tier-4 sites. DEP would review screening documents and certifications submitted by the LSP. 

Tier-4: Leaking unregulated heating oil tanks provided there are no immediate concerns such as impact on drinking water wells or vapor intrusion risks. DEP would review required checklists and certifications.

As Tier-1, Tier-2 and Tier-3 sites are more complex, they require the involvement of LSPs, while a Tier-4 site could also be managed by a person certified to perform services at a site of an underground storage tank such as a subsurface evaluator. However, any responsible party would be allowed to submit a Preliminary Assessment/Site Investigation for sites where a no further action letter is sought from DEP based on a showing that no contamination above prevailing standards exists. 

The proposed Bill is designed to streamline the DEP’s review of environmental reports, so that transactions are not delayed due to the lack of responsiveness from the DEP. We shall see whether New Jersey can join states like Connecticut and Massachusetts, where effective LSP programs are run. 

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On January 4, 2008, the New Jersey legislature passed the Environmental Enforcement Enhancement Act. This Act enhances the enforcement authority of the New Jersey Department of Environmental Protection (“DEP”) under ten environmental statutes: Waterfront Development Act, Pesticide Control Act of 1971, Wetlands Act of 1970, Freshwater Protection Act, Coastal Area Facility Review Act, Endangered and Nongame Species Conservation Act, Water Supply Management Act, Safe Dam Act, Safe Drinking Water Act, and the Flood Hazard Area Control Act. The Act also amends the DEP enabling statute by clarifying DEP’s authority to inspect facilities, collect samples and copy documents to determine compliance with environmental laws, regulations, permits, and orders.

The Act strengthens the enforcement provisions of the ten statutes listed above and substantially increases the penalties DEP may seek against violators. The Act greatly broadens the enforcement authority of the DEP by authorizing it to issue an order requiring any person to comply, to bring a civil action, to levy a civil administrative penalty, or to petition the attorney general to bring a criminal action if a violation occurs. The amendments are substantial because many statutes prior to the passage of the Act only contained minimal penalties for violators or did not contain any provisions for assessing administrative penalties. For example, the Waterfront Development Act’s previous maximum penalty was $1,000 with an additional fine of $100 for each day the violation continued. As amended the penalty is increased to $25,000 per violation, per day. 

To help ensure compliance with environmental statutes, the Act significantly increases civil and criminal penalties including the following changes: (1) uniformly increases the maximum civil penalty amount to $25,000 per day; (2) authorizes daily penalty assessments for continuing violations; (3) authorizes the recovery of compensatory damages for loss or destruction of natural resources (e.g.-creates authority for DEP to recover natural resource damages, which are money damages from anyone responsible for spills or discharges of hazardous substances); (4) authorizes the DEP to recover reasonable costs incurred by the State in removing or correcting a violation, and to recover all reasonable costs incurred in bringing a civil action, which could be interpreted to mean recovery of attorneys’ fees; and (4) clarifies and in some statutes creates criminal provisions for purposeful, knowing, and reckless violations or falsifications. In addition, the Act broadens the DEP’s authority to compel a property owner to record a deed notice on its property where an alleged violation has occurred, under acts such as the Dam Safety Act or the Flood Hazard Protection Act. Prior to the Act’s passage the DEP only had this authority for a violation of the Freshwater Wetlands Protection Act. In fact, the Act allows DEP to require the recording of such a notice based only upon an allegation prior to adjudication.

With the passage of this Act, DEP has increased its enforcement authority and permits it to seek higher penalties for violations that may have previously been cost effective to commit and new avenues to seek such penalties. Its passage will likely lead to an increase in enforcement actions brought by the DEP.

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