New Jersey has extended the deadline for businesses engaged in “soil and fill recycling services” to comply with key provisions of N.J.S.A. 13:1E-127, et seq., which was enacted on January 21, 2020 and is known as the ‘Dirty Dirt Law.’  The law requires businesses engaged in “soil and fill recycling services” to register as such and apply for the very strict and difficult-to-obtain A-901 license which was previously applicable only to waste haulers. Following confusion and controversy over the applicability of the Dirty Dirt Law, Governor Murphy signed Assembly Bill A4255 on July 5, 2022, extending the deadline for businesses to apply for the A-901 license.

The new deadline to apply for an A-901 license is no later than 30 days after the NJDEP adopts rules and regulations for the Dirty Dirt Law, which the NJDEP must implement by July 5, 2023. In a July 8, 2022 Compliance Advisory Update, NJDEP has taken the position that this extension of time applies only to businesses that registered in compliance with the law by filing a Soil and Fill Recycling Registration Form by July 14, 2022.  Businesses that failed to register by July 14, are ineligible for the extension and are required to cease regulated activities until they have filed a Soil and Fill Recycling Registration Form and an A-901 License Application.

New Jersey initially required A-901 licenses for waste haulers in an effort to counter the influence of organized crime in the industry, and the A-901 application process requires detailed information and background checks.  The Dirty Dirt Law extended this licensing requirement to businesses engaged in “soil and fill recycling services,” including “the collection, transportation, processing, brokering, storage, purchase, sale or disposition, or any combination thereof, of soil and fill recyclable materials.”

The law also expanded the definition of regulated fill brokers, to include persons engaged in the “provision of soil and fill recycling services” for direct or indirect compensation. The NJDEP has taken the position that Licensed Site Remediation Professionals and Certified Subsurface Evaluators who are remediating a contaminated site are exempt from the law’s definition of broker. However, during stakeholder meetings, the NJDEP has left open the possibility that environmental consultants, general contractors, and even developers may be considered fill brokers and be required to obtain A-901 licenses. The newly regulated community hopes that the regulations required to be promulgated by the NJDEP pursuant to Bill A4255 will clarify the issues raised during the stakeholder meetings.

Although the main objective of the Dirty Dirt Law is to prevent unscrupulous operators from covert dumping and sham recycling of contaminated soil and fill materials, the implementation of the law (so far) is incredibly broad in scope and has the potential to subject a wide range of businesses to stringent licensing requirements that not all businesses can meet. Registration requirements are already in effect. Potentially affected businesses must therefore remain attentive to developments and understand how the law applies to their operations.

Cole Schotz P.C.’s Environmental Attorneys are available to discuss any questions you may have about the Dirty Dirt Law or the A-901 License Application process.

On December 13th, the New Jersey Departments of Environmental Protection and Agriculture introduced a joint “Natural and Working Lands Strategy Scoping Document” as part of the State’s climate change strategy.

New Jersey has implemented a progressive and comprehensive climate change strategy over the past several years, including adopting a goal of reducing greenhouse gas emissions by 80% below 2006 levels by the year 2050 (the “80×50 Goal”). The newly issued Scoping Document focuses on “carbon sequestration” as a necessary component to achieving that goal. The document states that clean energy along is not enough to meet the 80×50 Goal “without the additional reduction of 6 to 10.8 million metric tons of CO2 emissions due to carbon sequestration.”

The Scoping Document focuses on implementing carbon capture and sequestration practices in New Jersey’s:

  • Forests
  • Grasslands
  • Wetlands
  • Agricultural Lands and Aquiculture
  • Developed Lands
  • Aquatic Resources and Habitat

Recommendations in the Scoping Document range from adopting new best management practices and identifying additional financial resources for stakeholders to implementing restoration and preservation programs and facilitating green infrastructure.

New Jersey’s Natural and Working Lands Strategy has the potential for wide-reaching impacts on many categories of stakeholder groups, including land developers, the farming and fishing industries, and urban organizations.

Comments on the Scoping Document are being accepted until February 11, 2022, at: https://nj.gov/dep/climatechange/mitigation-nwls.html?utm_medium=email&utm_source=govdelivery

The New York State Department of Environmental Conservation (NYSDEC) is updating its Petroleum Bulk Storage (PBS) and Chemical Bulk Storage (CBS) rules.   The PBS and CBS programs regulate facilities storing small to large quantities of petroleum and other chemicals, and related spills and releases of petroleum and hazardous substances.  The purpose of the updates is to harmonize the state programs with the federal regulations, as well as to provide more consistency between the state programs.

The deadline to submit public comments has been extended to December 6, 2021.  The express terms of the proposed PBS rule can be found here: Part 613 and the proposed CBS rule here:  Part 597 and Part 598.

Some key highlights of the proposed changes to the PBS and CBS rules include:

  • Reporting Requirements:
    • The PBS rules now list the parties required to report spills.  In addition to parties such as the facility owner, tank system owner, operators, and anyone who causes a spill at the facility, among others, the list includes “any other party and its contractors who have been retained as part of a business transaction relating to the facility.”  If this last class of parties is interpreted to include prospective buyers and their environmental consultants performing due diligence, this will likely impact diligence strategy for both buyers and sellers of regulated facilities.
    • The parties required to report spills at facilities under the CBS rules mirror the PBS updates described above. Note, the parties required to report spills of hazardous substances under Part 597 (e.g. any person in actual or constructive control or possession of the hazardous substance when it is spilled, or any employee, agent or representative of such person who has knowledge of the spill) has not changed.
    • Under both PBS and CBS rules, suspected spills at applicable facilities must be reported within two hours of discovery, which is consistent with the timeframe for reporting actual spills and releases.
    • NYSDEC’s position that certain failed testing/monitoring results constitute a suspected, reportable spill is formalized in both PBS and CBS rules.
  • Financial Responsibility:  The PBS rules create new financial responsibility requirements for tank owners/operators to address corrective action measures and third-party claims for bodily injury and property damage due to releases from the operation of underground storage tanks.  Acceptable financial responsibility mechanisms include an insurance policy, letter of credit, trust fund, surety bond, self-insurance, or guarantee.
  • Use of Alternative Leak Detection Methods:  The PBS rules allow for alternative methods for leak detection, so long as the alternatives are approved by NYSDEC and are at least as stringent as the practices outlined in the regulations.
  • Response and Corrective Action:  The PBS rules include updated provisions to the release response and corrective action requirements, including listing the facility owner, tank system owner, and operator as responsible for complying with the requirements.
  • Periodic Testing and Inspection RequirementsBoth PBS and CBS rules update testing, monitoring, inspection, and repair requirements to align with the federal requirements.
  • Revised Operator Training:  Both PBS and CBS rules contain revised tank operator training provisions.

We will continue to monitor developments and provide updates on the rule changes.  If you have any questions, please do not hesitate to reach out.

Upon passing the $1.2 trillion Infrastructure Investment and Jobs Act (H.R. 3684) last week, the Senate provided significant funding towards development of the nation’s environmental and energy infrastructure. The Infrastructure Act also streamlines environmental review, permitting, and approval of federal infrastructure projects.

The Infrastructure Act includes funding for:

  • Reinstatement of the Superfund Tax: The Superfund Tax is an excise tax on specifically listed chemical to fund cleanup at Superfund Sites. The Act reinstates the tax, which is projected to generate $14.4 billion over the next 10 years.
  • Superfund Remedial Account: The Act provides $3.5 billion in additional funding over the next 5 years for U.S. EPA to conduct remedial actions at Superfund site. The Act waives state cost sharing requirements and requires U.S. EPA to consider tribal community needs at federally funded Superfund sites.
  • Brownfields Grants and Loans: The Act provides $1.2 billion for grants and loans under U.S. EPA’s Brownfields Program over the next 5 years. Brownfield sites are contaminated properties that are remediated and redeveloped for reuse. U.S. EPA’s Brownfields Program, which is authorized under the Superfund statute, provides grants and loans for site characterization and remediation of Brownfields sites.
  • Water Infrastructure Appropriations: The Act includes the Drinking Water and Wastewater Infrastructure Act (S. 914) authorization bill, which provides $55 billion in reauthorizations and new funding under the Safe Drinking Water Act and the Clean Water Act, such as:
    • $10 billion in grants for mitigating perfluoroalkyl and polyfluoroalkyl substances (PFAS) in drinking water and wastewater systems.
    • $11.73 billion for lead service line replacement projects and $200 million to address lead in school drinking water systems.
    • $14.65 billion in funding under Drinking Water State Revolving Fund, which provides grants to states to provide loans for waste system infrastructure projects.
  • Resiliency Projects: The Act provides $17 billion in funding for resiliency projects and studies by agencies such as U.S. EPA, U.S. Army Corps in areas such as flood mitigation and control, coastal erosion and risk management, disaster mitigation, waste management, drought resiliency, ecosystem restoration, wildfire management, and pollution prevention.
  • Energy Infrastructure Appropriations: The Act includes the Energy Infrastructure Act (S. 2377) authorization bill, which includes:
    • $2.5 billion over 5 years to establish grants through the U.S. Dept. of Transportation to create publicly accessible alternative fuel vehicle charging infrastructure.
    • $1 billion each year for 5 years for funding to states creating electric vehicle charging infrastructure.
    • $1 billion each year for 5 years to replace outdated school buses, with 50% of the funds going toward zero-emission and low-emission alternative fuel buses.
    • $65 billion for energy and electric grid infrastructure and resiliency programs, including programs to enhance the current electric grid against extreme weather events, to establish grid flexibility by implementing smart grid technologies, and to conserve energy and reduce carbon emissions in the transportation sector.
    • $3 billion for battery manufacturing and recycling and $200 million for electric drive vehicle battery recycling and second-life applications.
  • Carbon Capture and Hydrogen, Nuclear, and Hydropower Energy Research: The Act provides $6.42 billion for grants and loans for carbon storage and reduction programs in areas such as public transportation, traffic control, and intelligent transportation systems. The Act provides over $8 billion for the manufacturing of clean hydrogen and establishment of clean hydrogen hubs, $6 billion in Dept. of Energy supplemental appropriates related to nuclear energy, and $200 million for hydroelectric production and efficiency improvements.

The Infrastructure Act streamlines the environmental review, permitting, and approval of federal infrastructure projects. The Act reinstates a portion of the recently rescinded Executive Order 13801, known as the “One Federal Decision,” which expedites environmental review under the National Environmental Policy Act, or NEPA. This includes a two-year deadline for completing environmental review of major federal projects, limiting the scope of environmental impact statements, and development of categorical exclusions to accelerate federal projects. In addition, the Act amends the Fixing America’s Surface Transportation Act, or FAST Act, by repealing the sunset provision for the streamlining of cross-agency permitting and approval of federal infrastructure project.

The Infrastructure Act is now with the House, which is simultaneously considering a $3.5 trillion budget plan that includes environmental and energy related funding, tax incentives, grants and consumer rebates toward electric vehicles, green energy manufacturing and transportation, and clean energy and weatherization in homes. The budget plan also imposes polluter fees on methane and carbon.

The Infrastructure Act’s ultimate fate is uncertain. While it is likely to pass in some form, it is unclear whether the Act’s existing environmental and infrastructure funding and project streamlining provisions will survive intact. The House is expected to take up both the Infrastructure Act and the budget plan after it returns from break at the end of August.

On Monday, the U.S. Supreme Court unanimously held that a settlement of Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”)-specific liability is required to give rise to a contribution action under §113(f)(3)(B). This decision is the Court’s latest attempt to provide clarity to CERCLA by evaluating the United States’ often inscrutable interpretations of the statute that further its dual role as the enforcer of the statute and the largest potentially responsible party (“PRP”).

In this case, the U.S. argued, and the D.C. Circuit agreed, that a 2004 Clean Water Act (“CWA”) Consent Decree entered into by the U.S. and Guam triggered a CERCLA §113(f)(3)(B) contribution claim that was time-barred. Guam argued that the CWA Consent Decree did not trigger a §113(f)(3)(B) contribution claim and that, since the U.S. has sovereign immunity under the CWA, the U.S. was seeking to avoid any responsibility for the decades that the U.S. Navy dumped hazardous military waste into the Ordot Dump.

The Supreme Court disagreed with the U.S. and the D.C. Circuit, holding that a resolution of CERCLA-specific liability is required to trigger a contribution action under §113(f)(3)(B). The Supreme Court’s analysis focused “on the totality” of §113(f). The Supreme Court reasoned that §113(f) “does not exist in a vacuum,” but rather that contribution actions are predicated on “common liability” and the obvious place to look for that “common liability” is CERCLA itself.

Although a party may undertake remedial measures pursuant to other environmental statutes that resemble a CERCLA response action, the Supreme Court stated that relying on a functional overlap would stretch CERCLA beyond Congress’ language. Adopting the U.S.’s interpretation would result in uncertainty as to when a party has “resolved” its CERCLA liability in prior non-CERCLA settlement agreements. The Supreme Court instead adopted the “far simpler approach” of asking whether a settlement agreement expressly discharges CERCLA liability.

The Supreme Court did not address the second issue presented—whether a settlement that expressly disclaims any liability determination, and leaves the settling party exposed to future liability, triggers a contribution claim under CERCLA §113(f)(3)(B). Although this may be a remaining concern for parties that entered into older form CERCLA consent orders and consent decrees, the U.S. Department of Justice has since updated the model language to include a statement that CERCLA liability is resolved upon entering into the agreement.

Guam did not raise, and the Supreme Court did not address, whether a PRP that has resolved its CERCLA liability must bring a §113(f)(3)(B) contribution action or whether such a PRP may also bring a §107(a)(4)(B) cost recovery action. Until the day comes when the Supreme Court wades into this murky area of CERCLA, the best practice is to be mindful of the shorter statute of limitations for §113(f)(3)(B) contribution actions, and, if the situation warrants doing so, pursue both §107(a)(4)(B) and §113(f)(3)(B) claims.