407 West State Street, Trenton, NJ 08618  (609)695-3481  NJLM logo 
William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Municipal Environmental Responsibilities

– Lewis Goldshore, Esq., and Marsha Wolf, Esq.*

While environmental concerns do not always fit into neat categories, they tend to arise in three general settings: the management of municipal facilities; the adoption and enforcement of land use regulations; and the obligation to assure compliance with environmental requirements.
                                                              Municipal Facilities

            Local governments own and operate a variety of facilities that have the potential for environmental impacts. The most common of these are municipal buildings, public works garages and storm sewers. Some towns also provide utility services, principally for water supply and wastewater conveyance and/or treatment. The conduct of those operations, whether directly by a municipal department, or through a semi-autonomous governmentally owned authority, subjects the responsible governmental entity to environmental liabilities and requires compliance with applicable environmental requirements.

Municipal buildings are frequently heated by above or underground fuel oil tanks. While tank systems may be out of sight, they present significant risks if they are treated as being out of mind. These facilities, particularly as they age, have the propensity to leak. It is thus essential that they are regularly inspected to assure that they are tight — that is, they are not leaking and that are functioning properly. The costs associated with this type of preventive maintenance are a small fraction of those that would be incurred to investigate and remediate a spill released into the environment. The cost for remediating soil and particularly groundwater contamination remediation can be exceedingly expensive.

Indoor air quality is another environmental concern that has recently received increased media and public attention. To assure that employees and visitors are adequately protected it is advisable to periodically test the indoor environment for the presence of unacceptable levels of mold, radon and other contaminants. It is often possible to correct many of these conditions through relatively inexpensive adjustments or improvements to the building's HVAC system. In this manner, claims by workers and others can be avoided or, at least, be minimized.

In the event that abatement measures are required, it is essential to deal with qualified and experienced environmental professionals and abatement contractors. It is also noteworthy that some governments have encountered problems when procuring environmental professional or abatement services — they have learned the painful lesson that the lowest proposal or bid may not always be the lowest responsible proposal or bid.

Public works buildings or garages present their own special set of environmental risks and responsibilities. The most significant and obvious of these concerns the manner in which fuels and other hazardous substances are stored, used and disposed of. To minimize the potential for unpleasant surprises, the municipal staff needs to be adequately trained to make certain that they comply with all applicable laws, regulations and safety procedures. It is also advisable to retain technical consultants to assist with training and compliance. These advisors should be authorized to conduct periodic audits to assure that the desired objectives are being achieved on a continual basis.

The need to address stormwater pollution had been the subject of discussion for years but took on real significance in 2004. Last year, the Department of Environmental Protection adopted two significant and long-awaited sets of administrative rules concerning stormwater — water resulting from rain and snow melt that run off the land. In addition to having the potential to contribute to flooding, stormwater that runs across agricultural or developed property has the potential to pick up pollutants and ultimately degrade receiving waters. For additional discussion concerning the stormwater rules, see L. Goldshore and M. Wolf, "Amendments to Stormwater Management Rules Address Water Quality and Smart Growth," Feb. 2, 2004 [175 N.J.L.J. 402].
The rules included amendments to the New Jersey Pollutant Discharge Elimination System that established a municipal stormwater regulation program. In 2004, the first phase of the DEP's adoption of comprehensive stormwater pollution prevention regulations was implemented. This resulted in stormwater general permits being issued to all of the state's municipalities. While obtaining the general permits was a simple enough task, the rules also established a timetable for compliance. Significant milestone events began to be reached this year. These require local governments to adopt planning documents, undertake direct actions to control stormwater and, in most instances, adopt a number of ordinances.

The program results in substantial costs being imposed on municipalities during an especially difficult financial period. DEP has indicated a willingness to work with local government to implement the new program. But there is always the very real threat of enforcement actions for those that fail to comply. Additional information regarding these detailed regulations is available on the DEP's Web site, www.state.nj.us/dep/.
Governmentally owned utility systems are required to comply with a broad range of environmental requirements. As municipal officials responsible for the operation of sewerage systems can attest, the failure to adhere to these standards subjects the owner to serious penalties and other potential liabilities. See, e.g., the Clean Water Enforcement Act, N.J.S.A. 58:10A-10.1 et seq., which has resulted in the assessment of huge mandatory minimum penalties for paperwork and relatively minor violations.

                                                      Land Use Regulatory Process

The land use process and the achievement of environmental objectives are inextricably intertwined. This interdependent relationship is recognized in the Municipal Land Use Law's statement of purposes. See N.J.S.A. 40:55D-1 et seq.

Local governments are encouraged to utilize the planning and zoning process in a manner that protects environmental resources and enhances the quality of life. Land use decisions must be made in a comprehensive manner in accordance with the master plan and development regulations. But municipalities have been cautioned against making these rulings in an ad hoc fashion or in the absence of articulated standards. See, e.g., Pizzo Mantin Group v. Township of Randolph, 137 N.J. 216, 229 (1994).
More than 200 municipalities have established environmental commissions to assist the local land use bodies and other local agencies. See N.J.S.A. 40:56A-1 et seq. The purpose of the commission is the protection, development and use of natural resources in the municipality. To facilitate its role in the land use process, one of the commission members also serves as a member of the planning board.

A challenge that has emerged in the land use context is the need to sort out substantial environmental concerns from the desire of some to create virtual islands of exclusivity. While it is sometimes difficult to make this distinction, the potential for the misuse of environmental data in this manner needs to be recognized and resisted.

Another technique that has been used successfully to protect environmental resources is the outright purchase of land, or interests in land, for public open space conservation and recreation purposes. To facilitate these efforts, many municipalities have been active participants in the state Green Acres Program that directly provides funding assistance for open space acquisition and development. Green Acres funds have been supplemented by local open space tax levies approved by voters throughout the state. See N.J.S.A. 40:12-15.7.

When acquiring property, whether for open space, new or expanded operations or in connection with the redevelopment process, to avoid unexpected consequences, it is essential to undertake thorough pre-acquisition due diligence measures. Saving money on due diligence may result in substantially higher costs being incurred in the future.

                                                 Assuring Environmental Compliance

            Local governments may be required to screen environmental complaints since they often receive the first call when there is a suspected problem. Some of these complaints can be handled and resolved directly by local and county health officials. These generally are of a localized and comparatively minor impact. But most will be sufficiently complex to require DEP's involvement.

            The state environmental agency can be advised of environmental complaints through its Hotline, 877-WARN DEP. Due to the state agency's workload and priorities, it will often be necessary for local government to follow up on these complaints to assure that they receive prompt attention.
____________________________________
            * Lewis Goldshore, Esq., is a partner at Goldshore, Cash & Kalac of Lawrenceville.  His practice is devoted to environmental, land use and municipal law.  Mr. Goldshore serves as Environmental Counsel to the State League of Municipalities.  Goldshore and Wolf are co-authors of New Jersey Environmental Law (ICLE 2003), and Goldshore is a co-author of New Jersey Brownfields Law, published by New Jersey Law Journal Law Books.  This artic NJLM -Municipal Environmental Responsibilities
407 West State Street, Trenton, NJ 08618  (609)695-3481  NJLM logo 
William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Municipal Environmental Responsibilities

– Lewis Goldshore, Esq., and Marsha Wolf, Esq.*

While environmental concerns do not always fit into neat categories, they tend to arise in three general settings: the management of municipal facilities; the adoption and enforcement of land use regulations; and the obligation to assure compliance with environmental requirements.
                                                              Municipal Facilities

            Local governments own and operate a variety of facilities that have the potential for environmental impacts. The most common of these are municipal buildings, public works garages and storm sewers. Some towns also provide utility services, principally for water supply and wastewater conveyance and/or treatment. The conduct of those operations, whether directly by a municipal department, or through a semi-autonomous governmentally owned authority, subjects the responsible governmental entity to environmental liabilities and requires compliance with applicable environmental requirements.

Municipal buildings are frequently heated by above or underground fuel oil tanks. While tank systems may be out of sight, they present significant risks if they are treated as being out of mind. These facilities, particularly as they age, have the propensity to leak. It is thus essential that they are regularly inspected to assure that they are tight — that is, they are not leaking and that are functioning properly. The costs associated with this type of preventive maintenance are a small fraction of those that would be incurred to investigate and remediate a spill released into the environment. The cost for remediating soil and particularly groundwater contamination remediation can be exceedingly expensive.

Indoor air quality is another environmental concern that has recently received increased media and public attention. To assure that employees and visitors are adequately protected it is advisable to periodically test the indoor environment for the presence of unacceptable levels of mold, radon and other contaminants. It is often possible to correct many of these conditions through relatively inexpensive adjustments or improvements to the building's HVAC system. In this manner, claims by workers and others can be avoided or, at least, be minimized.

In the event that abatement measures are required, it is essential to deal with qualified and experienced environmental professionals and abatement contractors. It is also noteworthy that some governments have encountered problems when procuring environmental professional or abatement services — they have learned the painful lesson that the lowest proposal or bid may not always be the lowest responsible proposal or bid.

Public works buildings or garages present their own special set of environmental risks and responsibilities. The most significant and obvious of these concerns the manner in which fuels and other hazardous substances are stored, used and disposed of. To minimize the potential for unpleasant surprises, the municipal staff needs to be adequately trained to make certain that they comply with all applicable laws, regulations and safety procedures. It is also advisable to retain technical consultants to assist with training and compliance. These advisors should be authorized to conduct periodic audits to assure that the desired objectives are being achieved on a continual basis.

The need to address stormwater pollution had been the subject of discussion for years but took on real significance in 2004. Last year, the Department of Environmental Protection adopted two significant and long-awaited sets of administrative rules concerning stormwater — water resulting from rain and snow melt that run off the land. In addition to having the potential to contribute to flooding, stormwater that runs across agricultural or developed property has the potential to pick up pollutants and ultimately degrade receiving waters. For additional discussion concerning the stormwater rules, see L. Goldshore and M. Wolf, "Amendments to Stormwater Management Rules Address Water Quality and Smart Growth," Feb. 2, 2004 [175 N.J.L.J. 402].
The rules included amendments to the New Jersey Pollutant Discharge Elimination System that established a municipal stormwater regulation program. In 2004, the first phase of the DEP's adoption of comprehensive stormwater pollution prevention regulations was implemented. This resulted in stormwater general permits being issued to all of the state's municipalities. While obtaining the general permits was a simple enough task, the rules also established a timetable for compliance. Significant milestone events began to be reached this year. These require local governments to adopt planning documents, undertake direct actions to control stormwater and, in most instances, adopt a number of ordinances.

The program results in substantial costs being imposed on municipalities during an especially difficult financial period. DEP has indicated a willingness to work with local government to implement the new program. But there is always the very real threat of enforcement actions for those that fail to comply. Additional information regarding these detailed regulations is available on the DEP's Web site, www.state.nj.us/dep/.
Governmentally owned utility systems are required to comply with a broad range of environmental requirements. As municipal officials responsible for the operation of sewerage systems can attest, the failure to adhere to these standards subjects the owner to serious penalties and other potential liabilities. See, e.g., the Clean Water Enforcement Act, N.J.S.A. 58:10A-10.1 et seq., which has resulted in the assessment of huge mandatory minimum penalties for paperwork and relatively minor violations.

                                                      Land Use Regulatory Process

The land use process and the achievement of environmental objectives are inextricably intertwined. This interdependent relationship is recognized in the Municipal Land Use Law's statement of purposes. See N.J.S.A. 40:55D-1 et seq.

Local governments are encouraged to utilize the planning and zoning process in a manner that protects environmental resources and enhances the quality of life. Land use decisions must be made in a comprehensive manner in accordance with the master plan and development regulations. But municipalities have been cautioned against making these rulings in an ad hoc fashion or in the absence of articulated standards. See, e.g., Pizzo Mantin Group v. Township of Randolph, 137 N.J. 216, 229 (1994).
More than 200 municipalities have established environmental commissions to assist the local land use bodies and other local agencies. See N.J.S.A. 40:56A-1 et seq. The purpose of the commission is the protection, development and use of natural resources in the municipality. To facilitate its role in the land use process, one of the commission members also serves as a member of the planning board.

A challenge that has emerged in the land use context is the need to sort out substantial environmental concerns from the desire of some to create virtual islands of exclusivity. While it is sometimes difficult to make this distinction, the potential for the misuse of environmental data in this manner needs to be recognized and resisted.

Another technique that has been used successfully to protect environmental resources is the outright purchase of land, or interests in land, for public open space conservation and recreation purposes. To facilitate these efforts, many municipalities have been active participants in the state Green Acres Program that directly provides funding assistance for open space acquisition and development. Green Acres funds have been supplemented by local open space tax levies approved by voters throughout the state. See N.J.S.A. 40:12-15.7.

When acquiring property, whether for open space, new or expanded operations or in connection with the redevelopment process, to avoid unexpected consequences, it is essential to undertake thorough pre-acquisition due diligence measures. Saving money on due diligence may result in substantially higher costs being incurred in the future.

                                                 Assuring Environmental Compliance

            Local governments may be required to screen environmental complaints since they often receive the first call when there is a suspected problem. Some of these complaints can be handled and resolved directly by local and county health officials. These generally are of a localized and comparatively minor impact. But most will be sufficiently complex to require DEP's involvement.

            The state environmental agency can be advised of environmental complaints through its Hotline, 877-WARN DEP. Due to the state agency's workload and priorities, it will often be necessary for local government to follow up on these complaints to assure that they receive prompt attention.
____________________________________
            * Lewis Goldshore, Esq., is a partner at Goldshore, Cash & Kalac of Lawrenceville.  His practice is devoted to environmental, land use and municipal law.  Mr. Goldshore serves as Environmental Counsel to the State League of Municipalities.  Goldshore and Wolf are co-authors of New Jersey Environmental Law (ICLE 2003), and Goldshore is a co-author of New Jersey Brownfields Law, published by New Jersey Law Journal Law Books.  This article was originally published in the November 21, 2005 issue of the New Jersey Law Journal.

 

 

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