Gibbons Law Alert
More than 500 business owners, senior executives and industry representatives throughout the state attended a conference on August 19, sponsored by Gibbons P.C. and EisnerAmper LLP – Solar Energy for New Jersey Businesses, Developing & Financing Your Own On-Site Solar Facility – at the Woodbridge Hilton in Iselin, NJ.
It has been almost two decades since the last edition of the State Environmental Quality Review Act (SEQR) Handbook was released by the New York State Department of Environmental Conservation’s (NYSDEC) Division of Environmental Permits. Despite significant amendments to the SEQR regulations, 6 NYCRR Part 617 in January 1996 and tens of hundreds of cases of distinction on SEQR substance and procedure, many land use and environmental practitioners have been left to fend for themselves without up-to-date technical regulatory guidance from NYSDEC until now.
A recently enacted New Jersey law encourages the use of solar energy by allowing solar panels to be excluded from the computation of impervious coverage when determining whether a development project complies with impervious coverage limitations. The new law, P.L.2010, c.4 , amends the Pinelands Protection Act, Coastal Area Facility Review Act, Highlands Water Protection and Planning Act, County Planning Act, Waterfront Development Law, and Municipal Land Use Law, as well as laws pertaining to the conversion of age-restricted community developments.
Despite the new licensing program for environmental consultants in New Jersey, they still remain open to professional tort claims without the necessity of an affidavit of merit. As required by N.J.S.A. 2A:53A-27, a plaintiff making a claim for malpractice or negligence against a “licensed person” must provide an, “affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.”
New Jersey’s Natural Resource Damage (“NRD”) program is cobbled together from an aging policy directive issued in 2003, an Appellate Division decision, NJDEP v. Exxon Mobil Corporation, [393 N.J. Super 388 (App. Div. 2007)] and a handful of lower court rulings on various and sundry motions. There is no specific enabling statute and the agency has never adopted any formal regulations. In short, it’s the type of program which is bound to leave the regulators, the regulated community (and the lawyers who advise them) with plenty of questions. Because there are no clear rules, New Jersey’s NRD program has generated a significant amount of litigation.
Believe it or not, in the 30 years of recorded decisions under CERCLA, the issue of who is an “owner” has not been decided, according to the Ninth Circuit Court of Appeals in California v. Hearthside Residential Corp., case number 09-55389 (Decided July 22, 2010). CERCLA Section 107(a)(1) imposes liability on the current “owner and operator of a . . . facility.” 42 U.S.C. § 9607(a)(1). In the Hearthside case, Hearthside Residential Corporation (“Hearthside”) sold the property in question before the State of California sued it for reimbursement of clean-up costs. The Ninth Circuit determined that ownership for the purposes of CERCLA liability must be determined at the time of cleanup.
Judge Robert J. Bryan of the United States District Court for the Western District of Washington recently issued two opinions in United States v. Washington State Department of Transportation that could have significant implications on the scope and extent of liability under the Comprehensive, Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §9601 et seq., particularly at urban river sites and harbors. Both decisions examine the liability of the Washington State Department of Transportation (“WSDOT”) at the Commencement Bay/Nearshore Tidelands Superfund Site.
Solar and Wind Energy Generation facilities may soon join the category of uses designated as permitted of right by New Jersey statute rather than by individual municipal ordinance, thus preempting municipal zoning powers granted under the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (MLUL). Identical Bills, Senate S2126 and Assembly A3139 are pending before their respective house of the New Jersey’s legislature and would amend the MLUL to provide that Solar and or Wind Energy Generation Facilities, when installed on the sites of former landfills, quarries and other extractive industries, are permitted uses. This status would be equally applicable to both public and private sites where landfills, quarries or other extractive industries are closed or closing.
Last year, the Appellate Division in TAC Associates v. NJDEP, 408 N.J. Super. 117 (App. Div. 2009) had held that an applicant under the NJ Brownfield Innocent Party Grant, N.J.S.A. 58:10B-5, need not be a landowner at the time of application for such Grant. In so ruling, the Appellate Division invalidated NJDEP regulations that imposed an ownership requirement, a requirement absent from the underlying statute.
This summer, the long shadow cast by the oil rig blow-out in the Gulf of Mexico seems to be everywhere. For example, we recently reported that EPA has written to Congress endorsing the concept of reinstating the Superfund tax which expired back in 1995. Thus, it was only a matter of time before New Jersey got into the act. On July 15, 2010, the Senate Environment and Energy Committee in Trenton took up S-2108. If adopted in its present form this bill would raise the limit on liability pursuant to the New Jersey Spill Compensation and Control Act from $50 million to $1 billion.