Bulletin Board Magazine 2018 Volume 3

Legal/Legislative

of law under the PEA were extended for an additional 3 years until December 31, 2018 based on the State Planning Commission action. That action ensured continued validity and effect of "CAFRA centers" under DEP's Coastal Rules, as CAFRA centers are based upon State Planning Commission designated centers. In the absence of further State Planning Commission regulatory action, Plan Endorsement will expire January 1, 2019 for municipalities whose Plans remain valid by the prior regulatory extension of the Commission unless municipalities take action to extend or update their endorsed Plan by December 31, 2018. The expiration of such Plans will result in a corresponding loss of CAFRA center status where applicable. Those with parcels in existing CAFRA centers are urged to confirm the State Plan Endorsement status for the subject municipality. NJDEP UST/SITE REMEDIATION RULES DEP took action on August 6, 2018 to implement new and amended rules applicable to remediation. DEP adopted new, and long awaited, rules governing remediation of Heating Oil Tanks Systems (HOTS) applicable in the context of residential heating oil tanks and unregulated non-residential heating oil tanks (2,000 gallons or less). These new HOTS rules will provide clarify and facilitate remediation of residential and unregulated tanks. Among other things, the rules establish the concept of a HOTS Deed Notice that may be utilized as a remedial option to allow residual soil contamination above applicable remediation standards to remain in place at residential properties. DEP also simultaneously adopted amendments to its AARCS and Technical Requirements for Site Remediation Rules. These amendments were the subject of significant comment by interested parties including NJBA. Unfortunately, DEP ignored concerns expressed by many industry groups regarding

rules that restrict the use of alternative fill at redevelopment sites. Use of alternative fill at such sites should be encouraged for myriad reasons, including the cost effectiveness of remediation and redevelopment without any loss of protection. The "benefit" of the requirement to utilize clean fill at a site already being remediated with an engineering control seems questionable at best. The amended rules (N.J.A.C. 7:26E-5.2) impose restrictions on use of alternative fill from on-site and off- site sources. For off-site alternative fill, prior written approval from DEP is required for use of alternative fill when the amount of fill will exceed pre-remediation topography and elevation of a site. For sites that require elevation for flood hazard or other reasons, this requirement will likely prove burdensome and add time, uncertainty and cost to the development process. In the AARCS rules, DEP also amended the definition of a "person" for purposes of enforcement to include "responsible corporate officials". While the legal basis for DEP's action is debatable and likely to be subject of much discussion, DEP also removed and did not adopt an originally proposed amendment that would have made such "persons" certify as part of submissions made to DEP that they had the authority to prevent and correct violations of law and the applicable regulations (essentially, that they were personally liable for violations). By removing this language from rule amendment and the proposed certification requirements, DEP will be left to its factual proofs if it seeks to impose personal liability on individual corporate officers. COURT UPHOLDS DEP ROAD BLOCK TO REMEDIATION FUNDING

Discharge Site Remediation Fund ("HDSRF"). The County's application was filed for the purpose of reimbursing a portion of the property owner's remediation cost under a contractual agreement whereby the property owner, who was previously designated as a redeveloper of the property, agreed to de- designate the property as a redevelopment site and convey it as open space to the County apparently for recreational purposes. Instead of working with the parties, including the governmental entity, to facilitate access to funding for this beneficial purpose, DEP, as is often the case with respect to HDSRF funds, put up obstacles to prevent access to the funding. The court acquiesced in DEP's decision. The court found that funding was not available because the property owner, and not the County, performed the remediation and there was no evidence of a contractual agreement to confirm the owner was performing the remediation as a designated agent or on behalf of the County rather than on the owner's own behalf. Additionally, conservation and recreation grant funding was not available under DEP's rules because the property was not identified in a comprehensive County preservation plan. This case exemplifies the reality of HDSRF funding. DEP is reluctant to approve access to funding and often puts up road blocks to funding access particularly where DEP identifies the existence of available private party funding. DEP EXPANDS OPTIONS FOR GROUNDWATER REMEDIATION Groundwater remediation typically introduces the greatest level of remediation risk, from a cost and time perspective, in the development and redevelopment context. Recent guidance released by DEP should help to minimize some of that risk. One of the most troublesome types of contaminants for purposes of remediation in Continued ›

Legal/ Legislative by Michael J. Gross, Esq. and Steven M. Dalton, Esq. Mr. Gross is a Partner & Chair, Mr. Dalton is a Partner,

SEWER/WATER CONNECTION FEES

area boundaries, as required under the Coastal Rules, was published August 6, 2018 and became operative September 5, 2018. These Center and Planning Area boundaries are now in effect for purposes of determining impervious cover and vegetative cover limits for Toms River sites that require CAFRA approval. Under DEP's Coastal Rules and the Permit Extension Act, the Toms River mainland coastal center expired late-2016. The expiration of mainland coastal centers significantly reduced the amount of allowable impervious cover available for development of sites in mainland coastal centers such as Toms River that are subject to CAFRA permitting from 80% to 3-30% depending upon the planning area designation of a parcel. With the recent regulatory action taken by DEP, sites in the Regional Center and six Core areas that require CAFRA approval qualify for 80% impervious cover. This positive development regarding Toms River is a reminder that other currently existing CAFRA centers may soon expire. The State Planning Commission adopted amended regulations effective August 21, 2015 to extend the period of approval of Plan Endorsements and center designations for three years beyond their otherwise applicable expiration date. That action was taken to prevent the loss of older endorsed plans that remained valid by operation of the Permit Extension Act ("PEA"), and would have expired with the sun setting of the PEA. As a result, designated centers that remained effective only by operation

Michael J. Gross

Legislation providing sewer and water connection fee credits (P.L. 2018, c.74; S1247/ A2779) was signed into law August 10, 2018. The law represents a successful multi-year effort pursued by NJBA along with the Association of Environmental Authorities. Under the law, existing sewer connections qualify for credits and the 50% connection fee credit on affordable units has been expanded to all developers, not just non-profits. The law addresses the inequity redevelopers often confront relating to parcels where fees were paid for prior connections and the redevelopment places no additional demand on water supply or sewer treatment systems. Given that existing law often requires payment of water and/or sewer connection fees, the new legislation helps level the playing field through credits where existing connections are in place. By treating all developers equally, the law also appropriately places emphasis on the provision of affordable housing, and not the type of corporate entity providing such housing. CAFRA CENTERS: TOMS RIVER AND OTHERS The long awaited Toms River coastal/CAFRA center designation process is complete. DEP took action to accept the State Planning Commission's changed planning area boundaries for Toms River, including its Regional Center and Core Community Development Boundaries in the coastal area. Notice of DEP's acceptance of the planning

Steve Dalton

I/M/O Hazardous Discharge Site Remediation Fund

In an unpublished decision (A-4439-15T2), the Appellate Division affirmed DEP's denial of an application filed by the County of Middlesex for funding from the Hazardous

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