In Unusual Move, Developer Is Awarded Attorneys’ Fees and Costs Over Town’s Settlement Breach
June 17, 2021 | No Comments
Posted by Marc Policastro
Co-authored by Linda Lee
In a win for developers, a New Jersey judge has taken the unusual step of awarding attorneys’ fees and costs for breach of a court-approved settlement over a proposed inclusive residential development.
Somerset County Superior Court Judge Kevin M. Shanahan, P.J.Cv., held that Hillsborough Township violated the settlement when its planning board failed to approve a site plan for 96 units, including 23 affordable-housing units.
Municipalities should not “be permitted to repeatedly violate a Court Order and flout its affordable housing obligations under the Constitution without sanction,” the judge wrote in his June 7 decision. Read more
NJDEP Extends Critical Remediation Deadlines
April 27, 2020 | No Comments
Posted by Marc Policastro
NJDEP has announced extension of remediation time frames in certain instances. The Department has agreed to, in essence, a 90-day extension of deadlines during the state of emergency. NJDEP may also entertain a relaxation of other remediation requirements in the short term. Stay tuned. #remediation #njdep
EPA Relaxes Environmental Enforcement During COVID-19 Pandemic
April 2, 2020 | No Comments
Posted by Marc Policastro
Co-Authored by Linda Lee
On March 26, 2020, the United States Environmental Protection Agency (“EPA”) announced “a temporary policy regarding [its] enforcement of environmental legal obligations during the COVID-19 pandemic” (“Policy”). Under the Policy, EPA is able to exercise significant discretion in its enforcement of environmental rules for certain noncompliance resulting from the pandemic. EPA cites potential worker shortages, travel and social distancing restrictions, and resultant constraints on facilities on laboratories as reasons for the implementation of the Policy. Read more
Business Interruptions Due to Coronavirus and Its Impact on Environmental Remediation Deadlines
March 19, 2020 | No Comments
Posted by Marc Policastro
Co-Authored by Linda Lee
Under the Site Remediation Reform Act of 2009 (“SRRA”), N.J.S.A. §§ 58:10C-1 to 58:10C-29, a party responsible for conducting the remediation of a contaminated site must comply with certain mandatory remediation timeframes, as established by the New Jersey Department of Environmental Protection (“NJDEP”).
Although “mandatory,” NJDEP may grant an extension of such timeframes “on a case-by-case basis as a result of”: (1) “a delay in obtaining access to property, provided the person responsible for conducting the remediation demonstrates that good faith efforts have been undertaken to gain access, access has not been granted by the property owner, and, after good faith efforts have been exhausted, a complaint was filed with the Superior Court to gain access, in accordance with applicable rules and regulations”; (2) “other circumstances beyond the control of the person responsible for conducting the remediation, such as fire, flood, riot, or strike”; or (3) “other site-specific circumstances that may warrant an extension as determined by the department,” N.J.S.A. § 58:10C-28(d), which includes, but is not limited to, “[t]he fact that the person is an owner of a small business who can demonstrate to the [NJDEP]’s satisfaction that he or she does not have sufficient monetary resources to meet the mandatory remediation or expedited site specific timeframe,” N.J.A.C. § 7:26C-3.5.
Relief may also be possible even if a delay in meeting mandatory or expedited site-specific timeframes or other conditions has already occurred, and as a result, NJDEP has undertaken direct oversight of the site remediation. N.J.S.A. § 58:10C-27. If the delay was due to “a public emergency, as declared by the Governor or the President of the United States, or an official authorized to act on their behalf,” NJDEP “may modify the direct oversight requirements” under N.J.S.A. § 58:10C-27(c). N.J.S.A. § 58:10C-27(g).
If the progress of your site remediation has been delayed as a result of Coronavirus and the related public health concerns, you may be eligible for an extension by NJDEP. GH&C’s environmental attorneys are available to review and assess regulatory compliance with SRRA and to assist with extension requests to NJDEP.
NJDEP Establishes New Ground Water Standards
April 6, 2019 | No Comments
Posted by Marc Policastro
The NJDEP recently recommended establishing specific ground water quality standards for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). New Jersey is the first state to set drinking water standards for these chemicals. PFOA and PFOS are frequently used in commercial applications but have also been widely reported to cause health problems. Maximum contaminant levels of 14 parts per trillion (ppt) for PFOA and 13 ppt for PFOS will be the basis for ground water quality standards for site remediation activities. Additionally, the new rules will require that all remediation sites be evaluated for the potential presence of PFOA and/or PFOSA, and a positive result will require the site to undergo a ground water investigation pursuant to N.J.A.C. 7:26E-3.3. A public hearing regarding this issue will be held on May 15th.
Are You Prepared to Meet the May 7, 2019 Regulatory Deadline for Remedial Actions?
January 9, 2019 | No Comments
Posted by Marc Policastro
Responsible parties have an affirmative obligation to remediate contaminated sites pursuant to New Jersey’s Site Remediation Reform Act (SRRA), enacted in 2009. For sites where the discharge was discovered prior to May 7, 1999, the initial deadline under SRRA to complete remedial investigation was May 7, 2014. Subsequent amendments to SRRA afforded a two (2) year extension of the remedial investigation deadline to responsible parties that applied to the New Jersey Department of Environmental Protection (NJDEP) for such an extension. A responsible party that either (a) did not obtain an extension of this deadline or (b) completed the remedial investigation, including submission of the remedial investigation report on or before May 7, 2014, must complete the remedial action by May 7, 2019, as set forth in New Jersey’s Technical Requirements for Site Remediation at N.J.A.C. 7:26E-5.8(b). Read more
Marc Policastro Authors Article “Natural Resource Damages: Are We Out of the Woods Yet?” in the New Jersey Law Journal
June 11, 2018 | No Comments
Posted by Marc Policastro
Click here to view the full article.
Due Diligence and the Bermuda Triangle: Getting it Done
April 8, 2016 | No Comments
Posted by Marc Policastro
Co-authored by Melissa A. Clarke
As published in the Spring 2016 edition of Dimensions
Due diligence can make or break a deal, and there is a lot on the line for those charged with getting it right. (1) From an environmental perspective in New Jersey, that can be daunting. The Bermuda Triangle of diligence occurs when on-site sources, off-site sources and “unknown” sources converge. Diligence “death traps” become more than manageable when the developer takes a disciplined approach, staying within the ambit of the Site Remediation Reform Act (SRRA) regulations and the various guidance documents provided by the New Jersey Department of Environmental Protection (NJDEP). (2)
Off-Site Source Groundwater Investigation
One of the most commonly encountered scenarios in due diligence occurs when contamination is found proximate to a contiguous parcel, where the contamination is subject to a prior approval which, miraculously, stopped exactly at the property boundary line. Although the developer’s Licensed Site Remediation Professional (LSRP) is empowered to issue a final approval where the contamination is from an “off-site” source, investors will generally demand that the contamination be cleaned up prior to construction. Read more
NJDEP Deadline Looming for Completing Remedial Investigations
January 5, 2016 | Comments Off on NJDEP Deadline Looming for Completing Remedial Investigations
Posted by Marc Policastro
Governor Christie’s signing of Assembly Bill No. 4543 into law in 2014 granted an extension of up to two years for the completion of remedial investigations, postponing the original deadline of May 7, 2014 to May 7, 2016. Those affected by this decision should be aware of the repercussions they will face for failing to meet the May 7, 2016 deadline, including substantial fines and contaminated sites being subjected to the Department’s “direct oversight.” NJDEP has advised that Remedial Investigation Reports and all other required forms must also be completed and submitted by this deadline. The State’s “direct oversight” program may, among other things, obligate the responsible party to advance significant funds as collateral for required remediation work.
GH&C invites and welcomes further discussion on cases and matters involving remediation or other environmental challenges.
GH&C’s Marc D. Policastro Assists Chelsea Senior Living in Opening a New Facility In Marlboro
October 28, 2015 | No Comments
Posted by Marc Policastro
Marc D. Policastro, shareholder in the Real Estate, Redevelopment & Planned Real Estate Development Department and chair of the Site Remediation Department, was lead attorney in helping a major assisted living company open a new location, The Solana, in Marlboro, NJ. This highly contested case has gone through a number of hearings and special meetings since July of 2012. Read More.
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