Bulletin Board Magazine 2020 Volume 1

Legal/Legislative

LAND USE CONSIDERATIONS DUE TO COVID-19 Authored by Michael A. Bruno, et. al. The ongoing state of emergency related to the COVID-19 pandemic has severely impacted the ability of municipal governing bodies, planning boards, and zoning boards of adjustment to hold public hearings. Specifically, EO-103 (declaring a state of emergency) and EO-107 (heavily restricting public gatherings) have disrupted the conventional process for land use hearings contemplated by the Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq. (“MLUL”) and the Open Public Meetings Act, N.J.S.A. 10:4-6, et seq. (“OPMA”). While the MLUL and OPMA remain controlling, it is both impractical and impossible for boards to hold in-person public meetings as they are accustomed to doing. To address this, the New Jersey Department of Community Affairs (“DCA”), Division of Local Government Services (“DLGS”) recently issued COVID-19-related Operational Guidance for municipal planning boards and zoning boards of adjustment for holding public meetings during the state of emergency. By complying with the recently-issued DLGS guidance, boards may hold “virtual” public meetings in lieu of “live” public meetings to ensure that critical business can still be conducted during the state of emergency. DLGS’s Operational Guidance emphasizes the potential to use technology, where possible, to mitigate the impacts of COVID-19 and related governmental restrictions on the public hearing process. For example, whereas an interested member of the public seeking to review a land use application might ordinarily inspect it at the planning board secretary’s office, DLGS notes the potential to email application materials (or for the applicant to mail the materials individually) to any interested parties.

DOJ to exercise enforcement discretion with regard to stipulated penalties for the routine compliance obligations.” • Facility Operations. “EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.” However, the Policy sets forth specific procedures for entities to follow when COVID-19 related disruptions to a facility results in: “an acute risk or an imminent threat to human health or the environment”; a “failure of air emission control or wastewater or waste treatment systems”; the inability of a facility that is a generator of hazardous waste to transfer waste off- site; or the inability of a facility that is an animal feeding operation to transfer animals off-site. Where entities follow the Policy procedures, “EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.” • Public Water Systems. EPA has “heightened expectations for public water systems” and “expects operators of such systems to continue normal operations and maintenance.” However, the Policy sets forth “tiers of compliance monitoring” to ensure safety of drinking water and to “prioritize prevention of acute risks.” EPA “will consider the circumstances, including the COVID-19 pandemic, when determining whether any enforcement response is appropriate.” • Critical Infrastructure. Where a facility is an essential critical infrastructure and EPA determines it is in the public interest, it “may consider a more tailored short-term No Action Assurance, with conditions to protect the public.”

Conservation and Recovery Act Corrective Action; or requirements “to prevent, respond to, or report accidental” releases and spills. • Entities still must comply with its environmental compliance obligations to the extent possible. However, in the event “compliance is not reasonably practicable,” entities should “[a]ct responsibly under the circumstances,” document how COVID-19 resulted in noncompliance, and “[r]eturn to compliance as soon as possible.” • Unless provided otherwise in the Policy, EPA will exercise enforcement discretion on a case-by-case basis for certain noncompliance (as further discussed below) that resulted from the COVID-19 pandemic.

Legal/Legislative by Michael J. Gross, Esq. , Steven M. Dalton, Esq. Mr. Gross is a Partner & Chair, Mr. Dalton is a Partner of Giordano, Halleran & Ciesla, P.C.

EPA RELAXES ENVIRONMENTAL ENFORCEMENT DURING COVID- 19 PANDEMIC Authored by Marc D. 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.

NJDEP DEADLINES AND OTHER REQUIREMENTS REMAIN IN EFFECT DESPITE COVID-19 PANDEMIC

Importantly, the Alert also sets forth guidelines for what regulated entities should do in the event that they cannot satisfy a regulatory or permit obligation as a result of circumstance arising out of the pandemic. According to the Alert, regulated entities must notify NJDEP within two (2) business days of the discovery of noncompliance. If compliance can be reestablished within seven (7) days, the regulated entity should write to NJDEP and provide specific information regarding the specific noncompliance and achievement of compliance once again. If compliance cannot be reestablished within seven days, the Alert indicates that the regulated entity should contact its regional NJDEP enforcement office to obtain approval of a detailed compliance plan to address the noncompliance. The regulated community may also request guidance on specific compliance issues by writing to covid19help@dep.nj.gov. In sum, it is clear that NJDEP currently is not offering broad-based relief from the requirements of its regulatory programs and related deadlines. Permit holders and other regulated entities, especially those currently constructing a project subject to an NJDEP permit or conducting a remediation under the guidance of a Licensed Site Remediation Professional, should review all applicable deadlines to determine if compliance will be impacted by COVID-19 and, as applicable, proactively implement a plan to notify NJDEP and establish a schedule to address the issue.

Authored by David J. Miller

In a Compliance Alert issued April 21, 2020, the New Jersey Department of Environmental Protection (“NJDEP”) made it clear that, despite the current restrictions imposed in response to the COVID-19 pandemic, all regulatory and permitting requirements currently remain in effect. This includes all permitting timelines, site remediation regulatory and mandatory timeframes, permit condition deadlines, and any other requirements imposed and enforced by NJDEP. While the Compliance Alert notes that NJDEP may exercise regulatory flexibility in circumstances where compliance with NJDEP requirements may be jeopardized as a result of the pandemic, NJDEP will assess any such flexibility on a case-by-case basis. The Alert notes that any regulatory flexibility will be narrowly tailored to “ensure the continued protection of public health, safety and the environment.” NJDEP is apparently also conducting an assessment of each of its programs to determine where such regulatory flexibility might be appropriate under the circumstances occasioned by the COVID-19 pandemic, but overall it is clear that all current

• What Relief is Available Under the Policy?

• Routine Compliance Monitoring and Reporting By Regulated Entities. EPA

generally “does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations” where COVID-19 caused the noncompliance and the regulated entity provides EPA supporting documentation upon request.

How Does the Policy Apply?

• The Policy will apply retroactively to March 13, 2020.

• Settlement Agreement and Consent Decree Reporting Obligations and Milestones. EPA generally will “not seek stipulated or other penalties for noncompliance” related to “routine

• The Policy is temporary and subject to modification by EPA. EPA will post a notification on its website at least seven days before terminating the Policy.

compliance monitoring, integrity testing, sampling, laboratory analysis, training, and associated reporting or certification obligations” under EPA administrative settlement agreements or consent decrees entered into with EPA and the US Department of Justice (“DOJ”). As to consent decrees, courts will maintain jurisdiction and EPA will “coordinate with

• The Policy will apply “to actions or

omissions that occur while [the] [P]olicy is in effect even after the [P]olicy terminates.”

regulatory requirements and obligations imposed on regulated entities remain unchanged.

• The Policy does not apply to: “[c]riminal violations or conditions of probation in criminal sentences”; imports; activities pursuant to enforcement instruments under Superfund and Resource

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