New Jersey Environmental Law Practice
Welcome to the Environmental Law Practice of Jonathan Roth. We are proud of our record of providng quality NJDEP environmental legal services for over 15 years. Insurance recovery matters, in which we concentrate our practice, are done on a contingency basis, meaning that you will only have to pay a fee if you recover money from your carrier. Most firms charge fees for this service, we don't. We also assist our clients with all NJDEP issues including oil tanks, litigation to recover cleanup costs, insurance recovery, permits, Spill Act Matters, Oil tank law, ISRA, penalties, etc.
Our environmental practice is built on a dedication to providing cost-effective solutions to meeting our clients' needs by providing personal service with a focus on achieving results. For a discussion of one of our most valuable services, recovery of insurance to cover the costs of cleaning up your property see our services.
NJDEP Historical Perspective
Historical Perspective
Prior to the 1970s, environmental protection was primarily left in the hands of the NJ Department of Health with very few laws to enforce beyond those relating to more or less “nuisances” relating to human health. With the advent of the social reforms of the 70’s came Earth Day where the issues of pollution of our air and water were first emphasized in a more cohesive manner. I remember being a part of my town’s first Earth Day celebration and being my high school’s representative to the Earth Day events at Stevens Institute in Hoboken, NJ. It really was the dawn of a new era.
The 1970s saw the creation of the EPA on the national level and the NJDEP on the local level. Air, water and solid waste were initially the concerns of these agencies. The idea of controlling air and water emissions to assure healthy air to breathe and plentiful high quality water to drink, swim and fish in were the aim of the regulators. The NJ Spill Act, N.J.S.A. 58:10-23.11 et.seq., was an early entrant to the concern for hazardous waste discharges.
In the 1980s, after Love Canal, the focus was on cleaning up toxic waste dumps and pollution to the ground and ground water. The Superfund Law, CERCLA , 42 U.S.C. 9601 et.seq., patterned on the Spill Act, was the national law adopted, and the NJDEP helped create the ECRA law, adopted in 1983, which is now known as ISRA (N.J.S.A. 13:1K) and the accompanying regulations which can be found at N.J.A.C. 7-26B, to supplement the Spill Act. Underground storage tanks, a primary source of contamination to the soil and groundwater, became a target of another set of laws and regulations. Both the EPA and the NJDEP were fully staffed and oversight, enforcement, and review under all environmental statutes and regulatory programs was strict and in many cases onerous.
I recall in the 1980s that the DEP used a standard of 100 parts per million for soil contamination for purposes of determining whether the “contaminated” soils could stay in the ground. Of course, this was a ridiculously low number and probably millions of tons of relatively “clean” soil ended up as landfill cover in places like Pennsylvania and Ohio at costs in excess of $100/ton for absolutely little or no reason. The DEP has since become more reasonable and realistic and is more concerned with contaminants which impact groundwater or may become health hazards if people are going to be exposed to them.
THE REGULATORY ENVIRONMENT TODAY
As in the case of many regulatory programs on both the State and National levels, enforcement today both the EPA and NJDEP has taken a backseat to economic concerns. The staffs of these once powerful agencies have been cut to the bone, for the most part, and while the laws must still be complied with, there is greater leeway given to more “economically acceptable” resolutions of problems and enforcement issues. If you review the NJDEP site, www.nj.gov.dep/srp, you will find a great deal of useful information regarding the new and improved cleanup requirements in New Jersey.
In the case of ISRA, once the most feared environmental laws in any jurisdiction, the DEP has had to revamp the law to allow real estate transactions of industrial properties to move forward, even if there are environmental problems requiring remediation after the transaction closing takes place. The ISRA requirements are laid out more fully at www.nj.gov.dep/srp/isra.
Additionally, the entire remediation process is becoming more and more privatized. The State is now in the process of licensing environmental consultants and will rely for the most part on their certification of compliance with the regulatory requirements being put in place. Finally, soil cleanup standards are being more a function of regulation, while there is “wiggle room” given based upon demonstrations of low risk if contamination is left in place.
In terms of air and water regulation, permits are still being required and enforced, however, economic marketplaces are being created to “trade” emission offsets so that if a company is able to more efficiently control its pollution, it may be allowed to sell the fruits of its efficiency (“pollution offset credits”) on the open market.
One thing which has remained constant since the late 1980s until today is that comprehensive general liability policies can still be used in the Garden State as a funding source for property cleanups. The evolution of the judicial decisions allowing for this important asset to certain policyholders is lengthy and one which is complicated enough to warrant someone with substantial experience and knowledge in this area. This law office has had many success stories in this area. Please click here for some of these stories.
