Land Development & Sustainable Building

On February 12, 2018, the Trump Administration released its much-anticipated Infrastructure Plan. While the bulk of the more than 50-page document proposes a wide array of funding and reforms for various infrastructure programs, as well as ways to streamline and fast-track permitting for infrastructure projects, it also proposes changes to Brownfield redevelopment programs, including the federal Superfund law (CERLCA).  The plan seeks to incentivize the redevelopment of contaminated properties and address related legal and financial risks.

The proposed changes include allowing National Priorities List sites to be eligible for Brownfield revolving loan fund and grant programs, clarifying and expanding the liability protections for state and local governments that acquire contaminated properties through tax foreclosures and the like, expanding EPA’s authority to enter into administrative agreements with brownfield developers, and eliminating restrictions on funding for infrastructure projects that could be integrated with a remediation.  This would mean even more change at EPA, which has been busy implementing the Superfund Task Force Recommendations released last year.

 

 

New Jersey’s new governor signed an executive order yesterday directing his acting Department of Environmental Protection commissioner, Catherine McCabe, and Board of Public Utilities President Joseph Fiordaliso to begin negotiations with current state members of the Regional Greenhouse Gas Initiative (RGGI) to re-enter the program.  This order reverses former Governor Chris Christie’s 2011 action to withdraw New Jersey from the program.

RGGI, established almost 10 years ago in 2009, is the first mandatory market-based program in the United States to reduce greenhouse gas emissions.  At Governor Murphy’s direction, New Jersey will rejoin the cooperative effort among fellow northeastern states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont to cap and reduce carbon dioxide (CO2) emissions from the power sector.

What does that mean?  From the 30,000 foot view, it means fossil-fuel-fired electric power generators with a capacity of 25 megawatts or greater would be required to hold allowances equal to their CO2 emissions over a three-year control period.  The power plants can use allowances issued by any of the participating states, and can buy them at regional auctions or in secondary markets.  The regional cap on total CO2 emissions ratchets down 2.5% each year until 2020, theoretically relying on the regional market to drive prices and efficiencies.  Proceeds from the auctions are used to fund renewable energy and energy efficiency projects.

In the weeds, it means the Department of Environmental Protection drafting new regulations (presumably using RGGI’s Model Rules), participation in a complex and well-developed compliance and tracking system as well as the auctions and secondary markets, passing along costs and savings to consumers, periodic reviews and adjustments, entering cooperative memorandums, and more.  It may also mean more opportunities to promote solar, wind, and other renewable projects.

Overall, RGGI has been seen as a success, reportedly reducing power sector carbon emissions as much as 40% since 2005, while member state economies continued to grow.  There are, however, many ways to interpret the different data and forecast future impacts.  Nonetheless, New Jersey is on the path back to RGGI and we will be on the lookout for the implications, costs, and opportunities.  We are also keeping an eye on state legislation directing New Jersey to join the U.S. Climate Alliance, which Governor Murphy is expected to approve if it hits his desk.  The governor may also bypass the legislature and use the executive order route.  The U.S. Climate Alliance doesn’t come along with the same compliance commitments as RGGI, but it is another example of ramped up state- and regional-level actions to address climate change in reaction to the reduction in federal action.  The U.S. Climate Alliance was formed in direct response to President Trump’s withdrawal of the United States from the Paris Climate Accord.

 

The New Jersey Department of Environmental Protection (NJDEP) recently renamed and revised its clean fill guidance, which now makes it clear that fill material obtained from a licensed quarry or mine may be used for site remediation without any sampling requirement.

NJDEP’s Technical Requirements for Site Remediation define “clean fill” as material—soil or non-soil—to be used in a remedial action that meets all soil remediation standards and has no debris, solid waste, or free liquids.  Under NJDEP’s December 2011 Alternative and Clean Fill Guidance, offsite material that was proposed for use as clean fill at a Site Remediation Program (SRP) site was required to undergo an evaluation of the historical and current uses of the material, a review of the conditions at the site from which it originated, and sampling to certify that the fill was clean.  While the 2011 guidance made certain exceptions for fill material obtained from a quarry or mine, a minimum of at least one sample was required to be analyzed.

The new “Fill Material Guidance for SRP Sites” addresses concerns raised by redevelopers and LSRPs regarding the burdensome sampling requirements and unnecessary paperwork associated with the use of fill material on SRP sites from a licensed quarry or mine.  Under the new guidance, fill material obtained from a licensed quarry or mine (defined as a facility permitted or authorized to operate under the New Jersey Mine Safety Act or other similar state statutes) may be used at a SRP site without any sampling as long as the quarry or mine operator certifies that the material is from a licensed quarry or mine facility and that the material has not been subject to a discharged hazardous substance at any time.  In the absence of such certification, proposed fill would need to meet the sampling and analysis requirements for clean fill.  This change is significant as it relieves suppliers and users of quarry or mine material of burdensome sampling and certification requirements and eases the process of closing out cleanups and site redevelopment.

There was another sigh of relief for developers in New Jersey as legislation to further extend the Permit Extension Act of 2008 passed both houses last week, keeping project approvals alive as developers wait for further improvement in the economy. The bill has now been sent to Governor Christie who is expected to sign it this week.

On September 6, 2008, Governor Corzine signed the Permit Extension Act of 2008 into law. The act aimed to alleviate some of the economic distress on the real estate market by extending certain development permits through July 1, 2010. The process of renewing permits is often costly and time consuming, and in some cases impossible due to changes in law. An automatic extension allows developers to save money and conserve resources they would otherwise need to expend on permit renewals.

The act was amended in 2010 to further extend those permits through December 31, 2012.   Bill A1338/S743, passed by the Assembly last Monday and by the Senate on Thursday, will extend the permit expiration date to December 31, 2014. Additionally, the bill will also amend the definition of "extension area" to include designated areas within the Highlands and Pinelands, excluding areas designated as Planning Area 4B (Rural/Environmentally Sensitive) and Planning Area 5 (Environmentally Sensitive), unless designated as a growth center in an endorsed plan.

 

On March 8, 2012, the New Jersey Department of Environmental Protection announced the adoption of its “Waiver Rule.”  As set forth in the NJDEP’s press release “strict compliance with rules can sometimes produce unreasonable, unfair or unintended results that may actually undermine, rather than advance, the” goal of the underlying environmental law. The Waiver Rule was first proposed in March 2011, and was subject to significant public comment.  The adoption document released by the NJDEP is 355 pages, and over 500 comments were received for the proposed rule.

In its formal rule adoption, the NJDEP further stated that “The Department of Environmental Protection is adopting new rules at N.J.A.C. 7:1B to establish the conditions and procedures for the Department to approve waivers from strict compliance with its rules where appropriate to address situations where rules conflict, or a rule is unduly burdensome in specific application, or a net environmental benefit would be realized, or a public emergency exists.”

The NJDEP will thus consider granting waivers where an applicant can demonstrate that one of these four conditions apply:

1. A public emergency has been formally declared;
2. There is a conflict between regulations that is adversely impacting a project or preventing an activity from proceeding;
3. A net environmental benefit would be achieved by granting a waiver; or
4. strict compliance would be unduly burdensome.

The NJDEP states that “there is no automatic right to a waiver. Waivers will be granted only on a case-by-case basis after careful review by technical staff and approval of the Commissioner. DEP will not compromise its core mission of protecting public health, safety and the environment, and will continue to make decisions based on science, facts, data and common sense.”

Please note that the NJDEP will not accept any requests for waivers under the Waiver Rule until August 1, 2012.

It seems likely to expect that one of the most sought-after waivers will be based upon a regulatory requirement being “unduly burdensome.”  The proposed rules defines “unduly burdensome” as a situation where strict regulatory compliance “would result in either:

1. Actual, exceptional hardship for a particular project or activity, or property; or
2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.”

How the Waiver Rule will be interpreted and applied in any specific case will remain uncertain until after August 1, 2012, when the NJDEP begins accepting applications for waivers.  Additionally, the Waiver Rule provides a list of regulatory requirements for which waivers will not be allowed.

At this time, anyone with a current or expected dispute with the NJDEP over the strict application of a regulatory requirement should begin to consider whether the Waiver Rule might apply to their specific situation.  If the Waiver Rule might provide some needed relief, you should review the Waiver Rule and its comments carefully and start laying the foundation for a waiver application.