David Restaino writes:

New Jersey MapOn April 20, Governor Murphy signed Executive Order No. 23 (EO 23) committing state government to making intelligent environmental decisions in communities that are disproportionately affected by environmental degradation. EO 23 requires that the NJDEP take the lead in developing guidance that would require state departments and agencies to consider “Environmental Justice” in implementing their responsibilities.

The first draft of the guidance will be due in six months, after which time there shall be another 90 days for the guidance to be finalized and published. Pursuant to that final guidance document, Environmental Justice issues shall be considered by State government in performing all evaluations and assessments. The existing, temporary Environmental Justice Advisory Council within the NJDEP shall continue with its duties and also be available to assist state government in complying with the guidance.

David Restaino is a partner in the firm’s Litigation and Environmental practices, based in its Morristown, NJ office.

Governor Tom Wolf signed into law, on July 20, 2017, Act 26, which amended the Pennsylvania Sewage Facilities Act concerning the use of alternate sewage systems for purposes of obtaining planning module approval from DEP for a new project. Act 26 is scheduled to take effect on or about September 18, 2017.

Many developers ask the question as to their right to use A/B sewage systems and other alternate sewage systems for purposes of obtaining planning module approval for a new project. Up until recently, DEP has taken the position that they do not have the authority to approve a planning module that uses alternate or experimental sewage systems. This position was recently confirmed in a memo issued by DEP, dated March 23, 2017[1]. In other words, DEP would not allow A/B sewage systems, and other alternative systems, to be used for purposes of planning module approval for a new project. This routinely resulted in developers obtaining less density than they could otherwise obtain by having to use conventional sewage systems for planning module approval.

Act 22 now requires DEP to accept, for the purpose of satisfying general site suitability requirements, any conventional or alternate on-lot sewage systems permitted by a sewage enforcement officer. Therefore, A/B sewage systems, and other alternate systems, should now be allowed to be used for planning purposes. Act 22 goes on to require DEP, in consultation with the sewage advisory committee and within 180 days of the effective date of the Act, to develop scientific, technical and field testing standards upon which an evaluation of each on-lot sewage system that has been classified as an alternate system shall be based. The Act also requires DEP, in consultation with the sewage advisory committee, to review the scientific, technical and field testing data for each individual on-lot sewage system and each community on-lot sewage system that is classified as an alternate on-lot sewage system and, based on this information, either reclassify the alternate sewage systems as a conventional system or remove the system’s classification as an alternate system.

I suspect that there will be more to follow on this topic. Nevertheless, to the extent that a developer has a project that can yield greater density using one or more alternate systems, then the developer should consult with its legal counsel and sewer consultant as to its viability to do so based on Act 26.

For more information on the use of alternate systems, or the approval of planning modules in general, please feel free to contact Rob Gundlach at (215) 918-3636 or rgundlach@foxrothschild.com.

[1] See prior Blog on this subject from this author.

In an Opinion and Order dated March 1, 2017, Pennsylvania Environmental Hearing Board Judge Richard Mather questioned whether PADEP can allow a site developer to bring regulated fill material to a site for construction purposes for a project lasting over one year.

The case involved a township appealing PADEP’s decision to allow Coplay Aggregates to use regulated fill as construction material for a construction project in Whitehall Township.  In ruling against a motion for partial summary judgment, Judge Mather pointed to language in the PADEP’s relevant guidance document and the General Information Form for GP-096 which states that PADEP will not approve an application where fill placement extends beyond one year or construction is not proposed to start within the one-year time period.  Apparently, in response, PADEP said that the language in its own form was “in error” and that the one year limitation on fill placement is not really applicable.

Those of us who work on construction projects and use GP-096 would agree with PADEP that you can and should be able to use that GP to bring regulated fill to a site for the entire duration of the construction project, even if it lasts over one year.  Given Judge Mather’s questioning of that in the Whitehall case, it probably makes sense for PADEP to revise its form and provide clarification for site developers.  Otherwise, new projects using GP-096 may run into this same issue if those approvals are appealed.  If you have any questions, please contact Joel Bolstein at 215-918-3555.