Governor Murphy Announces Support for Key Environmental Justice Legislation.

New Jersey Governor Phil Murphy recently announced his support for key environmental justice legislation for overburdened communities. The legislation (S232) requires the New Jersey Department of Environmental Protection (NJDEP) to evaluate environmental and public health impacts of certain facilities on “overburdened communities” when reviewing certain permit applications.

The proposed legislation that passed the Senate the end of June now goes to the Assembly for further consideration and voting and, if it passes the Assembly as well, could be signed into law by Governor Phil Murphy later this summer.  Similar legislation has been pending in New Jersey for more than a decade.

The key components of the proposed legislation are:

• Preparation of an Environmental Justice Impact Statement.  Applicants for certain permits would be required to prepare an “environmental justice impact statement.”  This statement would need to “assess” the potential environmental and public health stressors associated with the proposed new or expanded facility, . . . including any adverse environmental or public health stressors that cannot be avoided if the permit is granted, and the environmental or public health stressors already borne by the overburdened community as a result of existing conditions located in or affecting the overburdened community.”
• Public Notice and Hearing.  Applicants would then be required to provide the environmental justice impact statement to the NJDEP and other governmental entities, which in turn would disseminate the statement to the public.  Applicants also would need to organize and hold a public hearing in the overburdened community.  A transcript of the hearing and a record of any comments received from the public would then be provided to the NJDEP.
• Consideration of Environmental Justice Impacts by NJDEP; Requirement to Deny Permit Based on Environmental Impact.  After reviewing the environmental justice impact statement and the input from the public, the NJDEP would be required to deny a permit, or apply new conditions to the renewal of an existing permit, “upon a finding that approval of the permit . . . would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit of analysis as determined by the department pursuant to rule, regulation, or guidance.”

1. 1. The exact meaning and implementation of this requirement is not clear. It seems to place a high threshold on the expansion or construction of any facility that would negatively impact the environment in an overburdened community.  It is particularly important to note that the legislation requires the NJDEP to consider the “cumulative”impact of the facility on the community.  It further remains to be seen if facilities can offset negative environmental impacts through modifications to the design and operation of subject facilities.

Those facilities, permits and communities subject to the legislation include:

The application of the proposed legislation is governed by the definitions of “facility,” “permit,” and “overburdened community.”

• Facility.  The legislation defines “facility” as “any:  (1) major source of air pollution; (2) resource recovery facility or incinerator; (3) sludge processing facility, combustor, or incinerator; (4) sewage treatment plant with a capacity of more than 50 million gallons per day; (5) transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day; (6) scrap metal facility; (7) landfill, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; or (8) medical waste incinerator.”
• Permit.  It defines “permit” as “any individual permit, registration, or license” issued under numerous state laws, including  . . . the Solid Waste Management Act, the New Jersey Statewide Mandatory Source Separation and Recycling Act, the Freshwater Wetlands Protection Act, P.L.1987, the Coastal Area Facility Review Act, the Highlands Water Protection and Planning Act, the Air Pollution Control Act, the Water Pollution Control Act, the Flood Hazard Area Control Act, and others.  Notably, the definition includes only individual permits, which as the name suggests contain requirements specifically tailored to the individual facility.  As a result, the definition does not include general permits or other standardized permits, which contain standard requirements and are available to facilities that meet certain pre-determined criteria.  Additionally, the current definition does not reference permits issued under the Industrial Site Recovery Act, the Site Remediation Reform Act, or any other New Jersey statutes directly applicable to site remediation.  This is a change from a prior version of the legislation, which included a specific reference to the Industrial Site Recovery Act, and limits the scope of “permit” significantly in a way that should be welcomed by the regulated community.
• Overburdened Community.  Lastly, the legislation defines “overburdened community” as “any census block group . . . in which:  (1) at least 35 percent of the households qualify as low-income households; (2) at least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of the households have limited English proficiency.”  According to NJ Spotlight, “the bill’s definition of ‘overburdened communities,’ could apply to more than 300 municipalities and over 4 million residents.”

Current status of the proposed legislation is?

As noted above, the New Jersey Senate passed the proposed legislation on June 29, 2020.  The legislation now has been referred to the Assembly, and is scheduled for a hearing on July 20^th before the Assembly Environment and Solid Waste Committee.  Interested parties should be able to observe and testify at the hearing through virtual means.  It is possible that the Assembly could pass the proposed legislation later this summer, especially given the high profile support referenced above.

DMGS will be tracking this legislation closely. Should it become law, the operative provisions would go into effect after a period of six months- passage would undoubtedly significantly and dramatically change the permitting process for the regulated community in New Jersey.

 

NJ Beneficial Use Exemption to the Solid Waste Rules – “A Flexible Exemption”

The use of a little understood exemption to the Solid Waste Rules, known as the “beneficial use exemption”, has been on the rise in recent years as awareness of its existence and utility has increased. The beneficial use exemption provides an opportunity for waste generators to reduce economic burdens associated with waste disposal, while complying with the Solid Waste Rules and avoiding harm to the environment.

The New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) promulgated the Solid Waste Rules pursuant to New Jersey’s Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq. (“SWMA”), to regulate the registration, operation, maintenance and closure of sanitary landfills and other solid and hazardous waste facilities, as well as the registration, operation and maintenance of solid waste transporting operations and facilities in New Jersey. The Solid Waste Rules are set forth at N.J.A.C. 7:26-1.1 et seq. While these rules impose extensive, strict requirements for all aspects of solid waste handling and disposal activities, they also provide a number of exemptions to regulation. One of the best-known exemptions is for recycled materials and recycling activities. See N.J.A.C. 7:26-1.1(a)8 and -1.6(a)2. Generally, waste materials that are separated at their point of generation into components which can be processed and reintroduced into the economic mainstream, either as products or raw materials, are considered recyclable materials. Recyclable materials are exempt from the definition of “solid waste” and are regulated instead under the Recycling Rules, N.J.A.C. 7:26A-1 et seq.

One of the lesser-known exemptions provided by the Solid Waste Rules is the beneficial use exemption, promulgated at N.J.A.C. 7:26-1.1(a)1ii and -1.6(a)3. Under the beneficial use exemption, waste materials of almost any sort, even if contaminated to a certain extent, may be approved for “beneficial use” instead of the normally-required disposal at a permitted Solid Waste Facility. “Beneficial use” is defined by the Solid Waste Rules as “the use or reuse of a material, which would otherwise become solid waste under this chapter, as landfill cover, aggregate substitute, fuel substitute or fill material or the use or reuse in a manufacturing process.” N.J.A.C. 7:26-1.4. By definition, the beneficial use of waste materials does not constitute recycling or disposal of that material – it is a special category of activities exempted from the Solid Waste Rules. See N.J.A.C. 7:26-1.4.

NJDEP currently receives approximately five to six applications for beneficial use determinations each month. These numbers represent a slow, but steady, increase in the number of such applications in the past five to ten years, as awareness of the program has increased within the regulated community. According to NJDEP, beneficial use determinations are made on a case-by-case basis, and a pre-application conference between an NJDEP representative and the beneficial use applicant is encouraged so that the applicability of the exemption to the particular project proposed can be thoroughly explored. As a result of the pre-application process, the vast majority of beneficial use exemption applications are approved.

To obtain NJDEP approval, a waste generator must show that (1) the proposed beneficial use project at which its waste materials will be used is designed and managed in a manner consistent with the environmental statutes, permits and approvals applicable to the project and (2) the proposed beneficial use project will not pose a threat to public health or the environment. See N.J.A.C. 7:26-1.7(c) and (g)1. If the beneficial use exemption is granted, the generator receives a “certificate of authority” to operate the beneficial use project. Since the materials and projects are reviewed on a case-by-case basis, the certificate of authority that is granted may be limited in time or by type of materials that are acceptable for the project, or both.

Although no category or type of waste materials is explicitly prohibited from consideration under the beneficial use exemption, NJDEP will not, as a matter of policy, consider for beneficial use materials that constitute hazardous waste under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (“RCRA”). In fact, the beneficial use exemption provides a list of materials and specified uses that are categorically approved for beneficial use, such as tire chips used as aggregate for road base materials, coal combustion bottom ash used or reused as a component to manufacture roofing shingles or bituminous asphalt products, and non-hazardous solid waste approved in advance by the Department for use as cover material, landfill liner or cap material. See N.J.A.C. 7:26-1.7(g)4. Also, while there are no numeric or narrative criteria beyond those listed above, the Department applies the Soil Cleanup Criteria and evaluates the particular project proposed to determine whether there is a potential risk of harm to public health or the environment.

Last, it is interesting to note that there are no prohibitions on the types of uses or projects that can be considered under the beneficial use exemption. NJDEP will consider any type of project as a beneficial use project, including landfill closures, roadway construction, real estate development and manufacturing processes. Specific examples of materials and projects that have been granted a beneficial use exemption include the use of steel flag waste material as road sub-base in a roadway construction project, and the use of construction and demolition materials as structural fill for a redevelopment project. Thus, the beneficial use exemption is extremely flexible.

NJDEP reviews beneficial use exemption applications on a case-by-case basis and, according to an NJ, the Department seeks to work with applicants to try and find a way to make the beneficial use exemption work, while at the same time protecting the public health and the environment. Thus, each material and project proposed for beneficial use receives thorough and careful consideration by NJDEP with an eye toward making the project fit the exemption. The beneficial use exemption is extremely flexible, both as written under the Solid Waste Rules and as applied by NJDEP, and provides a worthwhile opportunity for waste generators to avoid the necessity of compliance with the Solid Waste Rules, while eliminating waste materials from New Jersey’s already over-burdened and onerous solid waste disposal system.

 

 

COVID-19 -Governor Murphy Issues Extensions of NJDEP Timeframes and Deadlines.

On Saturday May 2, 2020, New Jersey Governor Phil Murphy issued Executive Order (EO) 136 providing for extensions of many statutory deadlines required under environmental laws and regulations administered by the New Jersey Department of Environmental Protection (NJDEP or Department) and suspending timeframes for certain NJDEP permit decisions and reporting.  The extensions and suspensions are retroactive to March 9, 2020. EO-136 does the following:

• NJDEP’s “90-day” review period for Waterfront Development, CAFRA and Flood Hazard Area (stream encroachment) permit applications is tolled and extended.
• Registration deadlines under the new “Dirty Dirt” law are extended.
• “All timeframes governing the Department’s provision of public notice, review and decisions on permits and other approvals,” including those which would deem applications approved without conditions are paused.
• The timeframe for NJDEP approval of certain asset sales of sanitary landfills is extended.
• Reporting deadlines for municipalities regarding recycling tonnage are extended by 60 days; and
• Extended the August 1 deadline for semi-annual reporting for entities that collect electronic “e-waste.”

Under the terms of EO 136, the NJDEP Commissioner is required to issue an Administrative Order by May 7, 2020 to implement the extensions.  NJDEP is also authorized to “establish earlier timeframes for review and decisions on specific permit applications, with appropriate public notice, if DEP determines that an earlier decision is in the public interest or … to maintain appropriate sequencing of federal timeframes.”

90-day Permit Review Stayed.  Under N.J.S.A. 13:1D-32, NJDEP is required to make a determinations on applications for permits under the Waterfront Development Act, N.J.S.A. 13:9A-1 et seq, the Wetlands Act of 1970 (the Coastal Wetlands Act), N.J.S.A. 13:9A-1 et seq., the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 et seq., and the Flood Hazard Area Control Act,  N.J.S.A. 58:16A-50 et seq.  EO-136 extends the timeframe for completeness reviews and permit decisions until 60 days after the end of COVID-19 Public Health Emergency declared under EO-103.  Hence, all pending application will essentially be held in abeyance absent a finding that the permit decision is needed “in the public interest.”  DEP is also required to continue reviews of permit applications “to the maximum extent practicable.”

NJDEP’s review of county or municipal projects to clear debris from streams under N.J.S.A. 58:16A-67 has also been extended.

Review of Treatment Works Approvals (TWA) for sewer connection permits and other “90-day permits” were not addressed, nor was any relaxation of those addressed down the regulatory food chain for local and county entities involved in approval processes.

“Dirty Dirt” registration deadline extended.  Among other actions, EO #136 extends the deadlines for the “dirty dirt law” registration and licensing requirements by the number of days of the Public Health Emergency declared in Executive Order No. 103 plus an additional 60 days.

Recycling Reporting deadlines extended.  Deadlines for annual reporting by municipalities of recycling tonnage under N.J.S.A. 13:1E-99.16.e. and the next semi-annual reporting for facilities accepting e-wastes required under N.J.S.A. 13:1E-99.105c, have been extended for sixty (60) days to July 1, 2020 and August 1, 2020 respectively.Approval of Sanitary Landfill Asset Transfers.  The timeframe for DEP to act on certain proposed asset transfers for Sanitary Landfills under N.J.S.A. 48:3-7 has been extended for a period of sixty days after the end of the COVID-19 emergency declaration.

Click here to read EO 136:  https://nj.gov/infobank/eo/056murphy/pdf/EO-136.pdf

Click here to read the Governor’s press statement on EO 136:  https://nj.gov/governor/news/news/562020/approved/20200502d.shtml

As we all try to cope with the unprecedented situation arising from the COVID-19 virus, we want to take this opportunity to notify our clients and friends that Duane Morris Government Strategies (DMGS) is here to help if you need assistance of any kind, and to assure you that the Firm is operating and fully functional.  Our, attorney’s, government affairs professionals and staff are working remotely and securely, and we remain available to assist our clients without disruption.

 

 

COVID-19: NJDEP Extends Certain Site Remediation Deadlines Due to Pandemic

In response to numerous requests from the regulated community the New Jersey Department of Environmental Protection (NJDEP) took steps to suspend the application of certain New Jersey Site Remediation Program (SRP) compliance deadlines on April 24, 2020.  This relief is due to restrictions on workforce availability and business operations during the state’s current COVID-19-related state of emergency and the shelter-in-place orders issued by Governor Phil Murphy under his March 9, 2020, Executive Order No. 103 (EO-103).

NJDEP Commissioner Catherine McCabe approved a Notice Rule/Waiver/Modification/Suspension, calling for a temporary extension of certain SRP regulatory and mandatory timeframes for an initial period of 90 days while reserving the right to further extend the waiver period based on the duration of the state of emergency.

• The Temporary Rule Modification specifically concerns the Administrative Rules for the Remediation of Contaminated Sites (ARRCS) and the Technical Requirements for Site Remediation (TRSR).

The NJDEP expressly noted that it has the flexibility and ability to extend the timeframes beyond the extensions set forth in its notice so that it can respond to site- and situation-specific circumstances if necessary.

The modification is retroactive to March 9, 2020, the effective date of EO-103, and will remain in effect until the expiration or revocation of EO-103, or until otherwise revoked by the NJDEP. The 90-day extension applies only to those timeframes that have occurred or will occur while EO-103 is in effect, including:

• Mandatory Remediation Timeframes relating to Preliminary Assessments/Site Investigations (PA/SIs) set pursuant to the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.; Initial Receptor Evaluations; Immediate Environmental Condition source control; completion of Remedial Investigations (RIs) for light non-aqueous phase liquids (LNAPLs); and completion of RIs and the submission of RI Reports for contaminated sites.
• Expedited Site-Specific Timeframes
• Regulatory Timeframes relating to LNAPL Interim Remedial Measures, Initial Receptor Evaluations, PA/SIs, the completion of RIs and the submission of RI Reports for contaminated sites and underground storage tanks, and the implementation of Remedial Actions (RAs) and the submission of RA Reports (RARs).
• Regulatory Remedial Action Timeframes relating to the submission of RARs and the completion of RAs.

The NJDEP will consider requests by the person responsible for conducting the remediation for further extensions of the timeframes listed above and other timeframes on a case-by-case basis.

NJDEP also reserved the right to waive, suspend, or relax any other provisions of the ARRCS and/or TRSR (including provisions set forth in any permit or other approval document) on a case-by-case or site-specific basis provided the they find such action to be:

• Necessary to ensure the continued management of remediation activities and supporting services;
• Narrowly tailored to include only necessary modifications to address circumstances created by or directly related to the COVID-19 pandemic;
• Applied consistently to similarly situated entities and individuals; and
• Limited to the period in which EO-103 is in effect.

As we all try to cope with the unprecedented situation arising from the COVID-19 virus, we want to take this opportunity to notify our clients and friends that Duane Morris Government Strategies (DMGS) is here to help if you need assistance of any kind, and to assure you that the Firm is operating and fully functional.  Our, attorney’s, government affairs professionals and staff are working remotely and securely, and we remain available to assist our clients without disruption.

Is NJDEP ramping up enforcement of recycling regulations?

A couple of weeks ago the New Jersey Department of Environmental Protection issued requests of those engaged in “exempt” recycling activities in New Jersey to “self-report”. That is to state in a form provided by NJDEP if they are engaged in recycling activates and if they have one of the 24 different exemptions, from the need for a recycling center approval. The NJDEP thus may be ramping up enforcement of recycling regulations soon. New Jersey recycling approvals and permits are often difficult to obtain, costly and may take upwards of two years to obtain. For some, there are exemptions to the rules requiring a full blown approval.

What you need to know:

Recycling businesses in New Jersey are considered to be a type of solid waste facility, and are subject to solid waste regulations. With the notorious history of illegal dumping in New Jersey the solid waste regulations are among the most complicated regulations administered by the NJDEP.

Fortunately, the NJDEP has 24 different exemptions, spanning a wide variety of recycling activities. However, the exemptions are restrictive and narrowly defined. There are too few and they are often unclear.  For example, New Jersey Recycling Exemption #20, also known as the “Contractor’s Exemption”, is one of the more commonly used exemptions. This exemption allows a construction company or contractor, through their construction or demolition activities that generate source separated concrete, asphalt, brick, and block, to store and process these materials at their own yards.

This is valid provided that you are the sole generator of the material, and that you are the sole user of the finished product. In other words, if you produce the material, you can process it at your yard, but you must then be the user of the recycled material on a future project of yours. They keys here are:

 

• The same company must produce and use the material.
• No material can come from outside parties.
• You can’t sell the material at all.

 

Hence, if a road contractor produced broken concrete curbing and pavement, it could be brought back to their yard and processed (crushed) into material that then could be used on their future projects.

A warning:

Just because you have gotten an exemption from the NJDEP does not mean that you are compliant with your municipality. Always check for compliance with local and county laws. Local and county government may require some form of approval of your operation, regardless of what the NJDEP does or does not require. Recycling businesses, even facilities completely indoors, are still subject to approvals like air permits and stormwater permits. If you are lacking the right permits, you can, and probably will, get in trouble from the NJDEP. Just last year we saw two different existing operations shut down because they didn’t meet local laws.

Be warned that once you obtain one of the 24 exemptions and/or self-report an exemption you are now on record with the NJDEP as being a recycling business. Expect regulators and inspectors from the state and county to show up at your facilities. Know what you need to do and adhere scrupulously to the conditions of your exemption.

 

 

Soil and Fill recyclers must file an administratively complete A -901 license application with the Office of the Attorney General on or before October 19, 2020.

A new law requires soil and fill recycling businesses (all businesses engaged in the collection, transportation, processing, brokering, storage, purchase, sale or disposition of soil and fill recyclable materials) to go through what is commonly called “the A-901” solid waste licensing program.
Pursuant to legislation at S1683, any business concern that: (1) does not already hold a valid New Jersey A901 license and; (2) is currently engaged in or otherwise provides soil and fill recycling services in New Jersey must complete a:
• registration form and file it with the New Jersey Department of Environmental Protection (Department) by April 20, 2020 to obtain a Soil and Fill Recycling Registration, and;
• an administratively complete soil and fill recycling license application with the Office of the Attorney General on or before October 19, 2020. (Commonly called the A-901 License application).
Failure to timely file this Soil and Fill Recycling Registration Form by April 20, 2020 will render your company unauthorized by law to provide soil and fill recycling services. Failure to file an administratively complete soil and fill recycling license application by October 19, 2020 will automatically render the Soil and Fill Recycling Registration expired and invalid.
The A-901 application is a detailed, time-consuming, disclosure form with many questions that cover a wide variety of topics. It is important to answer all application questions thoroughly and completely, as the State will follow up on any incomplete questions, which could delay issuance of the license. While the process to apply for an A-901 license is long (on average 12 months or longer), our experience has provided several practical considerations that can make the process smoother:
The applicant is not the only entity responsible for completing the corporate history disclosure forms; each parent company and potentially even remote investors must completely fill out these forms.
While seemingly intrusive, every key employee, owner, officer, director, member and partner in the business must submit a personal history disclosure form, which includes information about family members, employment history and these individuals must also submit to fingerprint checks. It is imperative that these persons be complete in their responses.
During the background check by the New Jersey State Police, be prepared to respond to questions and/or inquiries about situations that may have occurred years ago. For example, an applicant recently was asked about a bench warrant for a long unpaid parking ticket; an affidavit from the applicant explaining that he lived in Europe at the time and that he did not own the car in question kept the background check on track.
Make sure the business is in good standing, including with the Division of Taxation.
Finally, if the application passes muster, NJDEP will issue the A-901 license, but may as a condition require the recipient to attend an NJDEP seminar and/or obtain a letter from an attorney stating that the company has been advised of the applicable laws and regulations and is aware of its compliance obligations. Having an Advisor that has been involved in the A-901 application process and that will be available to complete this step will also help to efficiently navigate the process. Without eventual A-901 approval soil and fill recycling operators, transporters, brokers and consultants will be prohibited from conducting their soil and recycling operations in New Jersey.

Expanded A-901 Requirements Coming Soon? Salespeople, Consultants and Soil Recyclers Should Prepare.

On June 20, 2019, the New Jersey Legislature began moving a bill (S1683/A4267), that would expand the scope of A-901 requirements to a broader range of persons involved in the solid waste industry, including salespeople and consultants. The bill also would subject persons or companies engaged in soil and fill recycling services to the same regulation as those engaged in the business of solid waste.
This proposed legislation passed the Senate unanimously on June 20, 2019 and is now pending before the Assembly.
There are extensive regulations in New Jersey governing businesses involved in the solid waste and recycling industries. Many people do not realize that it is a long and complicated process to become a fully licensed solid waste transporter, facility or broker. And some do not realize that they cannot conduct a solid waste business in the State of New Jersey until the process is completed.
One of the most time-consuming aspects of solid waste licensing is obtaining A-901 approval. The “A901” currently does not apply to those involved in recycling. The A-901 program was adopted many years ago in response to the infiltration of organized crime into the solid waste business to ensure those conducting the business of solid waste in New Jersey have the requisite integrity, reliability, expertise and competence. There are some limited exceptions to A-901 licensing requirements for self-generators of solid waste and Licensed Site Remediation Professionals who manage solid and hazardous waste in connection with remediation projects.
While the process to apply for an A-901 license is long (on average 18 months or longer), our experience has provided several practical considerations that can make the process smoother:

• The applicant is not the only entity responsible for completing the corporate history disclosure forms; each parent company and potentially even equity, private and remote investors must completely fill out these forms. Moreover, every key employee, owner, officer, director, member and partner in the business must submit a personal history disclosure form, that includes information about family members, employment history and these individuals must also submit to fingerprint checks. It is imperative that these persons be complete in their responses.
• The New Jersey State Police are obligated to do a background check on applicants. So be prepared to respond to questions and/or inquiries about situations that may have occurred years ago. For example, an applicant recently was asked about long unpaid motor vehicle citations; an affidavit from the applicant explaining that were out of the country at the time and did not own the car in question kept channeled and constrained the background check keeping things on track. In another instance a longstanding litigation unrelated to current business operations came up. By settling the matter the background check stayed on course.
• Make sure the business is in good standing, including with the Division of Taxation.

Finally, if the applicant is qualified”, NJDEP will issue the A-901 license, but may as a condition require the recipient to attend an NJDEP seminar and/or obtain a letter from an attorney stating that the company has been advised of the applicable laws and regulations and is aware of its compliance obligations. Having an attorney that has been involved in the A-901 application and that will be available to complete this step will also help to efficiently navigate the process.
For more information, please contact the author or any Government Affairs Advisor at DMGS.

New Jersey Environmental Infrastructure Trust

On Monday a New Jersey Assembly panel advanced a bill that would require local governments and authorities wanting to use New Jersey Environmental Infrastructure Trust funds for projects costing $1 million or more to first obtain a financing cost estimate from the trust.

The Assembly Environment and Waste Committee unanimously approved an amended version of A1649, which was introduced Jan. 27 and marks the latest effort to expand the trust’s oversight of local spending.

“The estimate will enable the local government unit to evaluate, and other interested parties to consider, the potential savings of financing and interest costs offered by trust financing compared to other available methods of financing the project,” the bill statement reads.

The amended version exempts local governments from the requirement if an infrastructure project was approved by ordinance or resolution prior to the bill getting signed into law and also reduces the time frame in which the trust must provide the estimate from 15 days to five.

Sponsored by Assemblywoman L. Grace Spencer, who is the committee’s chair, Assemblywoman Eliana Pintor Marin, D-Essex, and Assemblyman Gary S. Schaer, D-Bergen and Passaic, the legislation drew support from the Utility and Transportation Contractors Association of New Jersey and the Laborers International Union of North America.

Ciro Scalera, the government affairs director for the union, thanked the committee for modifying the bill after hearing from its detractors, such as the New Jersey League of Municipalities.

Under the bill, the NJEIT must provide an online form for the financing cost estimate. Local governments may be asked to provide additional information concerning the project and borrower, including a detailed description of the project, design, engineering and environmental information; a cost estimate prepared by the project engineer or other qualified person; information regarding the borrower; and the amount to be financed.

The legislation has been in the works for two years,.

An initial version introduced by the Assembly in July 2014 received 69-7 approval from that chamber in March after review by its Environment and Solid Waste Committee. The Senate introduced a version in September 2014, left that house’s Environment and Energy Committee along with some amendments.

Both bills were referred to, but never advanced from, the Senate Budget and Appropriations Committee.

New Jersey Legislation & Regulation Watch For 2016

New Jersey’s weakened gaming industry, workforce pressures and vulnerable environment have driven legislative developments in recent months, giving interested folks plenty of pending bills to watch in 2016.

Atlantic City, the state’s only constitutionally-allowed gaming revenue resource, has suffered  from casino bankruptcies, closures and competition, driving lawmakers to consider tax incentives that would boost the resort town, along with a proposal to geographically expand the market share of casinos.

Casino employees, some of whom have gone on strike in the past year, represent just one industry characterized by a labor pool that wants a better work-life balance. Lawmakers have heeded their calls with legislation that has drawn objections from a recession weary business sector still struggling to cope with ongoing economic uncertainty.

On the natural resources front, the New Jersey Department of Environmental Protection’s proposed changes to rules governing the state’s flood hazard areas have riled conservationists who fear the updates lessen protections and pander to developers.

Here’s a summary of critical legislation and regulation that could affect significant  New Jersey State changes in 2016:

Atlantic City Fiscal Recovery Package

Pinning their hopes on reviving Atlantic City, lawmakers are continuing to push a financial incentive package spearheaded by Senate President Stephen M. Sweeney and Sen. Jim Whalen, D-Atlantic.

Three of the bills have passed both houses of the Legislature as of the Assembly’s Dec. 17 voting session and are awaiting Gov. Chris Christie’s signature. The anchor of the proposal, A3981, calls for a payment-in-lieu-of-taxes plan to stabilize the town’s fiscal health.  A3984 would reallocate a casino tax that’s being used for redevelopment projects to help the city pay debt service on municipal bonds, and A3985 would drop a five-year obligation to use casino revenue for marketing purposes so those funds can be redirected to the city.

In November, Christie signed into law another part of the package, A3983, that would provide additional state money to the city’s struggling public schools, but implemented an  absolute veto to A3982, that would have required casinos to provide proof they are providing “suitable” health care and retirement benefits to employees.

Constitutional Amendment to Expand Gambling

Looking beyond Atlantic City, lawmakers are considering  advisiability of  casinos in the Meadowlands and the Monmouth Park racetrack.  Legislation would reverse the state’s constitutional restriction, and the topic could be left up to voters.

The Senate Budget and Appropriations Committee on Dec. 17 approved Sweeney’s SCR185, that would pose the question of non-Atlantic City gaming in a public referendum next November, while the Assembly passed a twin version of the bill on to that house’s Tourism, Gaming and the Arts Committee.

The legislation would make for a “potentially huge” expansion of the New Jersey’s gaming industry, although the passage of a constitutional amendment is difficult to predict given the expected high turnout due to the presidential election.

Supporting New Jersey Families Act

Casino employees and the state’s labor force in general also stand to get a boost from pending legislation aiming to improve work-life balance and increase paid time off. Along with legislation that would help displaced casino workers prepare to re-enter the workplace, lawmakers are also considering a family-geared legislation package that was unveiled in May by Senate Majority Leader Loretta Weinberg, D-Bergen. The Supporting New Jersey Families Act, which has yet to undergo committee review, would require employers in all industries to provide shift workers with predictable schedules and time off to attend school activities, expand state employee family leave privileges and establish a commission to do a gender pay disparity study. The bills have twin legislation in the Assembly.

The first prong of Weinberg’s package, the Schedules that Work Act, S2933, provides a private right of action for employees seeking to change their work schedules.

Paid Sick Leave

Among the most controversial legislatative actions are those advocating for employees is the proposed Paid Sick Leave Law, S785 and A2354, under which workers would get the better of five to nine sick days or more generous packages provided under local laws.

The Senate bill, also sponsored by Weinberg, got full approval in Dec. 17, while the Assembly version is poised for a second reading by the chamber. That bill counts Assembly members Pamela R. Lampitt, D-Camden, Shavonda E. Sumter, D-Passaic, Raj Mukherji, D-Hudson, Jerry Green, D-Passaic, and Benjie E. Wimberly, D-Bergen-Passaic as primary sponsors.

During a Senate committee hearing in June, the legislation was hailed by unions, think tanks and groups such as the New Jersey Working Families Alliance. Business-centered organizations, such as the New Jersey Farm Bureau and the New Jersey State Chamber of Commerce, criticized  the administrative and expense ramifications.

Given New Jersey Governor Chris Christie’s previous opposition to mandated sick leave, the future of the legislation remains uncertain, since in the aggregate, the  legislative proposals would create new administrative burdens on employers, including smaller businesses and start-ups, and increase the risk of litigation as traditional employer prerogatives are legislatively  prescribed.

Flood Hazard Area Rules

The New Jersey Department of Environmental Protection’s planned changes to flood hazard area rules, announced in June drew not only a backlash from environmentalists but twin bills proposed explicitly to overturn the changes. They are presently pending public comment.

Among the biggest changes in store is the increase in the amount of vegetation in riparian zones — where regulated water meets land — that can be disturbed for construction, and the extension of that allowed disturbance to building projects that would normally require a hardship exemption.

Sen. Raymond J. Lesniak, D-Union, served as a primary sponsor of SCR180 that received full Senate approval in October and is pending before the Assembly. Identical legislation, ACR249, was introduced in November by Assemblyman John F. McKeon, D-Morris, and Assemblywoman L. Grace Spencer, D-Essex. Both bills have been advanced by the Assembly Environment and Solid Waste Committee.

These rules affect virtually all development in all sectors across the state, and also serve as one of the state’s few points of leverage over federally authorized projects, like pipelines and utility facilitiesThese rules also dictate rebuilding and resiliency policy in and near flood prone areas. The impact would reach beyond the shore to industrial sites, many in low-lying areas along New Jersey Rivers.

Where the state goes on these issue affects not only environmental quality but also the value of properties, and the costs and likelihood of future business expansion.

NJ DEP Looks To Ease Permitting In Flood Hazard Areas

New Jersey Gov. Chris Christie’s administration on Monday announced regulatory changes for development in flood hazard areas that would streamline permitting and reduce restrictions on construction near surface waters, among other revisions that some environmentalists argue would harm waterways and flood prevention efforts.

Officials with the New Jersey Department of Environmental Protection said the “common sense” changes to its rules under the Flood Hazard Area Control Act are part of the administration’s broader efforts to cut red tape and denied that they represent a rollback in ecological or flood mitigation protections. The DEP will field public comments on the proposed revisions, which were part of the state Register on Monday and separately announced by the department, through July 31.

“Our streams and rivers provide the state with many benefits, but many aspects of the way the rules are currently structured have not achieved their stated goals,” DEP Commissioner Bob Martin said in a statement. “These rule changes will correct those problems while maintaining our high standards for protection of our waterways and mitigation of flooding.”

The amendments addressed in a 936-page notice from the DEP include converting six existing general permits to a new category of permits — general permits-by-certification — and another four existing general permits to permits-by-rule.

The new category of permits would allow someone to use an online portal and secure permission for 15 specific activities by making a series of certifications, according to Vincent Mazzei, a supervising environmental engineer with the DEP. The regulator would follow up with an inspection later, Mazzei said. Meanwhile, permits-by-rule cover smaller activities that are automatically entitled to a permit, according to Mazzei.

Requirements for so-called riparian zones — where regulated waters meet land — would also see changes.

The DEP said it wants to increase the total amount of vegetation that can be disturbed for roadways, utility lines, buildings and other projects to better reflect the department’s permitting experiences. The department also wants to increase the area of riparian zone vegetation that can be disturbed as part of activities that don’t harm their overall functionality, including work within roadway or utility easements.

Additionally, the proposal would free more applicants from having to request hardship exceptions when strict compliance with riparian zone limits would create an undue hardship. Site remediation projects, landfill closures and other construction activities not addressed in the existing rules would see allowances for riparian zone disturbances, while applicants would no longer need a hardship exception if they can show that a project “cannot feasibly meet the limits on riparian zone disturbance.”

In those cases, an applicant would have to prove that there’s no practicable alternative and take steps to mitigate disturbances, according to Mazzei.

Also on the table is the repeal of 300-foot “special water resource protection areas” under the state’s stormwater management rules. Reconciling the requirements for those areas with separate 300-foot riparian zones that the flood hazard rules establish for ecologically significant waters and certain tributaries has created confusion for regulators and the regulated community alike, the department said. Moving forward, the DEP wants to create a hybrid buffer with uniform standards that apply to the same set of surface waters.

The department itself highlighted a proposal to hand off the enforcement of soil erosion and sediment control standards to local Soil Conservation Districts when it comes to areas with highly acidic soils. Those areas largely run parallel to the New Jersey Turnpike corridor in the central and southern parts of the state, according to the DEP.

The changes aren’t sitting well with some in the environmental community. The new permitting standards would slash important oversight, while certain protections for high quality streams would be eliminated, according to Jeff Tittel, director of the New Jersey Sierra Club.

“In a state so devastated by flooding, the DEP is heading in the wrong direction,” Tittel said in a statement. “We should be adding protections to protect people and property, instead we are weakening them putting more people and protect in harm’s way. These rules are an attack on clean water and make NJ will be vulnerable to the next flood and future damages.”

The revised rules received a warmer reception from the New Jersey Builders Association, which welcomed changes such as the proposed consolidation of stormwater management and flood hazard rules.

“The proposal is another initiative by the department to organize, align, and standardize the underlying permitting rules for a significant and complex land use program,” the association said in a statement.