USA – NEW JERSEY Law and Practice Contributed by: Nicole Dory, Christina Sartorio Ku, Meredith Rubin and Camryn Goldstein, Connell Foley LLP
diligence prior to purchasing the property, including conducting a Phase I Environmental Site Assessment and potentially a PA or SI. The Spill Act also permits NJDEP to recover three times the amount the parties spent on remediation if responsible parties do not participate in cleanup. 12.3 Determining Liability Under the Spill Act, responsible parties are jointly and severally liable, which means NJDEP can recover the full remediation cost from any one responsible party. This is true regardless of the parties’ various degrees of fault. The Spill Act provides a right to seek contribu- tion, however, meaning a party that covers remediation costs may seek reimbursement from other responsible parties. Joint and several liability is intended to ensure the entire cost of a cleanup is paid. Like the Spill Act, liability to the EPA pursuant to CERCLA is also joint and several; however, a liable party under CERCLA may also seek a contribution action against other potentially responsible parties under the federal law. Courts determine who is a responsible party, rather than NJDEP, so any disputes regarding liability and allocating liability for cleanup of a discharge will be decided in litigation. 12.4 Proceedings Against Polluters NJDEP’s Site Remediation Program’s Bureau of Enforcement and Investigations is authorised to compel action from responsible parties by issuing an enforcement action. Additionally, the ERA allows private parties to file pro- ceedings against polluters or property owners to seek remediation when they believe government interven- tion has been inadequate. The ERA requires that the plaintiff demonstrate the defendant violated an envi- ronmental statute, regulation, or ordinance, and that the violation is likely to recur. 12.5 Investigating Environmental Accidents Generally, a party must notify the NJDEP, as well as the municipality, county health department, and/or local health department to respond to environmental acci- dents or before beginning remedial investigation of an environmental incident. NJDEP oversees investiga-
tions of spills and releases of hazardous substances. The agency sets forth procedures and timeframes for reporting accidents, conducting preliminary assess- ments, site investigations, remedial investigations, and remedial action. For example, under the Spill Act, a responsible party must first conduct a preliminary assessment to deter- mine the presence of contaminants. If so, a site inves- tigation must occur next to assess whether remedia- tion is necessary. Next, a remedial investigation will identify the extent of contamination. Lastly, the reme- diating party will conduct remedial action to treat or remove the environmental condition. As described above, pursuant to SRRA, the majority of the site investigation and remediation process is conducted under the oversight of an LSRP. 13. Climate Change and Emissions Trading 13.1 Key Policies, Principles and Laws In 2020, the state launched the New Jersey Protect- ing Against Climate Threats (the “NJ PACT”) initia- tive, a series of regulations and initiatives intended to address climate change. NJ PACT includes a number of reforms generally falling into two categories: land use and flood protection, and air quality and emis- sions. As to land use and flood protection, the state has pro- posed the Resilient Environments and Landscapes Rule Amendments (REAL rules), which would amend and update various regulations addressing land use in environmentally sensitive areas including coastal zones, flood hazard zones, wetlands, and waterfront areas. The changes also impact how stormwater is addressed on newly developed or modified proper- ties. Among the changes proposed by the REAL rules is the revision of the elevation requirement for new or substantially improved buildings and infrastructure to four feet above base flood elevations. The rules also establish a new regulated area known as the “inunda- tion risk zone.” This zone is defined as those areas which will be inundated with tidal waters permanently by 2100, even though now it is currently dry land. The REAL rules were originally expected to take effect
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