Gibbons Law Alert

Gibbons Law Alert

Tagged: Regulations

Applications Now Open for Six Additional Alternative Treatment Centers

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Posted in Regulatory Counseling and Departmental Action

On August 6, 2018

New Jersey’s Department of Health is seeking applications for six new medical marijuana dispensaries, known as Alternative Treatment Centers (ATCs), to be located in the Northern, Central, and Southern regions of the State. Below is some critical information on the application process which closes on August 31, 2018. Why the Department Needs Additional ATCs The six current licensed ATCs are reaching their limit in terms of the number of patients they can treat. In March 2018, Governor Murphy and the Department added five additional medical conditions to the list of qualifying diagnoses eligible for treatment with medicinal marijuana. Among the conditions were two new types of chronic pain, as well as anxiety, migraines, and Tourette’s Syndrome. Since the addition of these conditions, the program has grown by over 7,000 patients and the total number is in excess of 25,000 people. What the New ATCs Can Do The six ATCs to be licensed will be vertically integrated and allow for the cultivation, manufacturing, and dispensing of marijuana. The Department’s objective is to have two licensees located in the Northern region (Bergen, Essex, Hudson, Morris, Passaic, Sussex, and Warren), two in the Central region (Hunterdon, Middlesex, Mercer, Monmouth, Ocean, Somerset, and Union), and two in the Southern (Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, and Salem). Key Dates...

NYSDEC Adopts Update to SEQR Regulations

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Posted in Development/Redevelopment / Environmental and Green Issues

On August 2, 2018

The New York State Department of Environmental Conservation (“DEC”) announced on June 28, 2018 that it had adopted a rulemaking package directed at updating its regulations relating to the State Environmental Quality Review (“SEQR”). The updates – DEC’s first to its SEQR regulations in more than two decades – are the product of an effort that began in February 2017 with the DEC’s filing of an initial notice and, following a series of public comment periods and subsequent revisions, culminated with its publication of the Final Generic Environmental Impact Statement (“FGEIS”) and revised text of the regulations. As revised, the regulations become effective on January 1, 2019 and apply to all actions for which a determination of significance has not been made by January 1, 2019. For projects that receive a determination of significance made prior to January 1, 2019, the existing SEQR regulations (which originally took effect in 1996) will continue to apply. Once effective, the revised regulations could have a significant impact on SEQR’s applicability to future development projects. The new regulations contemplate a number of mechanical changes to the environmental review process itself, including mandatory scoping of environmental impact statements, changes to the required content of environmental impact statements (“EIS”), as well as new requirements relating to the preparation and filing environmental impact...

NJDEP Announces Change to Remediation Standards for Certain Contaminants

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Posted in Development/Redevelopment / Environmental and Green Issues

On September 20, 2017

On September 18, 2017, the New Jersey Department of Environmental Protection (“NJDEP”) announced updated soil remediation standards for 19 contaminants. The updates are based on changes to toxicity data for the specified contaminants maintained by the United States Environmental Protection Agency in the agency’s Integrated Risk Information System database. Responsible parties and others conducting cleanups should consult with their Licensed Site Remediation Professionals and other environmental consultants regarding the applicability of the new standards to their sites. The new standards are in effect as of September 18, 2017. A copy of the updated standards can be viewed at NJDEP’s website.

Update: U.S. Supreme Court Announces New Test for Defining “the Parcel” in a Regulatory Taking

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Posted in Development/Redevelopment

On June 30, 2017

On March 22, 2017, we blogged about the importance of the United States Supreme Court’s looming decision in Murr v. Wisconsin – a regulatory takings case that was poised to resolve a key question long left unanswered by the Court’s takings jurisprudence: how do you define the relevant parcel in determining a regulation’s impact on “the parcel as a whole?” On June 23, 2017, the Court issued its ruling, and in a 5-3 decision answered definitively that it depends. Sometimes a regulation may go so far as to effect a “taking” of one’s property. In determining when a regulation has gone so far, the Court has previously instructed that reviewing courts must consider the regulation’s interference with property rights “in the parcel as a whole.” But the precise boundaries of “the parcel” are not always clear and, in many cases, may prove to be dispositive of whether there was a taking at all. The Court described the problem in Keystone Bituminous Coal Assn. v. DeBenedictis, explaining that because the regulatory takings analysis requires a comparison between the value taken from the property to the value which remains, “one of the critical questions is determining how to define the unit of property whose value is to furnish the denominator.” In Murr, the Court was presented with a number...

21st Century Cures Act Lands in Federal Budget Blueprint

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Posted in Healthcare

On April 27, 2017

President Trump’s proposed FY 2018 Budget (a/k/a the “skinny budget”) presented a departure from his predecessor’s proposed annual budgets – namely a $54 billion increase in defense and military spending paired with corresponding cuts to virtually every other federal department. But one area President Trump did not cut was the implementation of the 21st Century Cures Act (the “Cures Act”), which also happens to be one of the last bills signed into law by then-President Obama. The FY 2018 budget blueprint proposes to appropriate $1.1 billion towards the Cures Act’s implementation in the upcoming fiscal year. The Cures Act strives to expedite the discovery, development, and delivery of new treatments and cures. Those in the medical, biotechnology, and pharmaceutical industry should look to the Cures Act as the potential game-changer that the bipartisan sponsors of the law hoped it would be. Not only does the Cures Act provide the National Institute of Health with significant new funds to speed up research into diseases like cancer and Alzheimer’s, but it also attempts to speed up the process by which new treatments are reviewed and approved by the FDA. The Cures Act also focuses on changes to the treatment of mental health and substance abuse. The reforms included in the Cures Act create a new Assistant Secretary for...

What Parcel? SCOTUS Hears Arguments in Case Poised to Clarify the Court’s Regulatory Takings Jurisprudence

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Posted in Development/Redevelopment / Transactional Real Estate and Leasing

On March 22, 2017

The Supreme Court of the United States entertained arguments on Monday, March 20, 2017 in a case likely to fortify its Fifth Amendment regulatory takings jurisprudence. The case, Murr v. Wisconsin, is on appeal from Wisconsin’s high court and, when decided, should answer a question left open by the Court’s 1978 ruling in Penn Central Transportation Company v. City of New York. In Penn Central, the Court instructed that in determining whether a regulation has gone far enough to constitute a taking of private property, courts should not limit their analysis to the regulation’s effect on some discrete segment or portion of the subject property, but should instead consider the regulation’s interference with property rights “in the parcel as a whole.” The question of how reviewing courts should define that parcel, however, has gone unanswered for decades. Enter the Murr children, whose parents purchased two adjacent tracts of land along the St. Croix River in the early 1960s. The Murr parents built a cabin on the first lot and maintained title to it in the name of their business. The second lot, purchased afterwards, was kept in their name and remained largely undeveloped. In 1976, a county ordinance was passed establishing new minimum lot size requirements for properties in the area. While this ordinance contained an exception for...

EPA Agrees to Push Back Comment Deadline for Proposed Financial Assurance Regs

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Posted in Environmental and Green Issues

On March 7, 2017

The United States Environmental Protection Agency (“EPA”) recently extended the public comment period for a proposed rule which would impose financial assurances requirements for cleanups conducted by companies in the hardrock mining industry, as required by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). In publishing the proposed rule on January 11, 2017, the EPA established a 60-day comment period for impacted parties to present their views on the rule to EPA. An overview of the financial assurance requirements imposed by CERCLA and the details of the proposed rule can be found in our prior posts on June 13, 2016 and January 4, 2017. On February 17, 2017, Congressmen Greg Walden (R-OR), Rob Bishop (R-UT), and Bill Shuster (R- PA) asked then-acting EPA Administrator Catherine McCabe to extend the comment period into the summer of 2017, citing the intricacies of the rule and complicated statistics on which EPA relied in drafting the rule. A week later, on February 24, 2017, recently confirmed EPA Administrator Scott Pruitt granted the request and extended the comment period by four months, claiming that the extension was in response to dozens of requests from stakeholders, in addition to the letter from the congressmen. Comments on the proposed rule are now due by July 11, 2017. The environmental attorneys at...

What You Need to Know About Federal Regulatory Reform

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Posted in Regulatory Counseling and Departmental Action

On February 17, 2017

President Trump and the newly-elected Congress have made regulatory reform a main focus of their policy agenda. With Republicans controlling both the White House and Capitol Hill for the first time in over a decade, significant actions were taken within the first several weeks of coming into power that regulated industries should be aware of. Implementation of a Regulatory Freeze – The Trump Administration froze all federal rulemaking by issuing a policy memorandum to the Executive Branch departments and agencies. The memorandum declared that no regulations should be submitted “until a department or agency head appointed or designated by the President … reviews and approves the regulation.” The memorandum also required the Executive Branch agencies to either withdraw or postpone all agency regulations submitted to the Office of the Federal Register. The only exceptions to the regulatory freeze are for “emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters” or “regulations subject to statutory or judicial deadlines.” Reducing Regulations for Domestic Manufacturing – President Trump directed the Executive Branch departments and agencies to support the expansion of manufacturing in the United States through “expedited reviews of and approvals for proposals to construct or expand manufacturing facilities and through reductions in regulatory burdens affecting domestic manufacturing.” A key component of...

EPA Proposes First Financial Assurances Rule

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Posted in Environmental and Green Issues

On January 4, 2017

On December 1, 2016, following decades of inaction and a court order establishing a deadline by which the proposed rule was to be released, the United States Environmental Protection Agency (“EPA”) announced that it would publish a proposed rule regulating financial assurances required for parties conducting remediation projects in the hardrock mining industry. Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) directed EPA to develop rules requiring “that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous wastes.” 42 U.S.C. 9608(b)(1). Although these rules were required to be promulgated by 1985, EPA never published any rules, which led to a deadline of December 1, 2016 being set by court order in response to a lawsuit complaining that EPA failed to comply with the statute. See In re Idaho Conservation League, 811 F.3d 502 (D.C. Cir. 2016). In the absence of such rules, EPA required financial assurance through negotiated settlements, orders, and guidance.

N.J.’s Proposed Changes to Low Income Housing Tax Credit Qualified Allocation Plan Limit Projects per Developer and Encourage Development in Smart Growth Areas

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Posted in Development/Redevelopment / Economic Development

On November 14, 2016

The N.J. Housing and Mortgage Finance Agency (“HMFA”) recently proposed changes to the Low Income Housing Tax Credit (“LIHTC”) Qualified Allocation Plan (“QAP”). State housing credit agencies, like HMFA, are required to create plans which outline the selection criteria for awarding tax credits for the development of low- and moderate-income housing. The proposed amendments update the QAP to reflect procedural changes to the way in which affordable housing is constructed, but also include some substantive changes to both the allocation of tax credits among developers and the scoring system for awarding tax credits.

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