Environmental Law

In this issue

Taking Stock of Natural Resource Damages in New Jersey

New Jersey's natural resource damages ("NRD") program has been underway for about six months. From the vantage point of parties responsible for site remediation, reviews of the program implemented by the New Jersey Department of Environmental Protection ("DEP") are mixed. Brownfield redevelopers are having success in limiting their liability. Some responsible parties have "volunteered" to resolve NRD claims and found the Office of Natural Resource Restoration to be a reasonable partner. Others are taking a wait-and-see approach or litigating NRD claims, including a direct challenge by industry to DEP's use of outside counsel and the Department's failure to subject its formula for determining the monetary value of injury to ground water to the rulemaking process.

NRD are compensation to the State for injury to natural resources, above and beyond those monies or work required to remediate hazardous substances. DEP typically relies on the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the "Spill Act"), the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., and the common law Public Trust Doctrine to seek recovery of NRD from parties responsible for contamination. Damages may be recovered for the assessment of NRD, restoration or replacement of the damaged resources, the value of the natural resource services lost as a result of the release (use value), or the value of the lost resources, whether or not they serve any public use (non-use or bequest value).

DEP's NRD Policy
In September 2003, DEP issued its Policy Directive 2003-07, Natural Resource Damages, which sets forth a dramatic plan to collect NRD for ground water and other natural resources impacted by approximately 4,000 of the state's 13,000 contaminated sites. This year, DEP has announced a $17 million NRD settlement with three companies responsible for chromium sites in Jersey City and approximately $3 million in other NRD settlements. DEP sources have estimated the overall value of NRD for the 4,000 sites at $500 million to $750 million, while industry estimates set the number significantly higher.

Under the policy, DEP will evaluate both open and closed site remediation cases for NRD claims and defer issuing a No Further Action letter for active cases where an NRD claim has been identified but not resolved. DEP is relying on a Surrogate Ground Water Injury Calculation to assess NRD for ground water. The formula takes into account the area of the contamination, the water recharge and public water rates, and the duration that the ground water will be impacted. DEP has announced that it will use a "more robust" ground water formula against responsible parties that do not voluntarily address NRD, resulting in larger claims; however, the "more robust" formula, rumored to be based on vertical extent of contamination, the actual duration of the damage and other factors, has not yet been made public. DEP has expressed a strong preference that NRD claims be resolved through actual restoration projects, rather than the payment of money. Experience with the Office of Natural Resource Restoration bears this out.

Private Attorneys General – Where Are They Now?
In a new approach, DEP has retained special outside counsel, Allan Kanner & Associates of Louisiana, among others, to evaluate, settle or litigate NRD claims on a lucrative, contingency basis. For example, Kanner will receive at least 20% of the first $10 million recovered, 17.5% of the next $15 million recovered and 15% of any amount recovered over $25 million for each NRD case that is settled after the state has initiated a lawsuit. Notwithstanding the private economic incentive, to date Kanner & Associates has not had a significant public profile in resolving NRD claims. Environmental citizen groups in New Jersey also have vowed to intervene in or commence suits for NRD that NJDEP fails to pursue vigorously.

Industry Challenges to DEP's Program
Six trade associations have filed suit against the DEP Commissioner over the NRD program. The trade groups argue that DEP violated the state's Administrative Procedure Act by failing to adopt the ground water formula as an administrative rule and that the contingency fee contract given to Kanner & Associates violates the Public Trust Doctrine, state statutory law, and the American Bar Association's Code of Professional Responsibility. The lawsuit is to be heard through an expedited summary disposition hearing. Another NRD case is being litigated, NJDEP v. ExxonMobil, Sun Refining, Arco Petroleum, et al, Docket No. L-002933-02, in which DEP seeks approximately $500,000 in cleanup costs and NRD for ground water. The matter is being vigorously prosecuted and defended, the parties having interests far greater than the $500,000 at risk.

The Lower Passaic River
As part of its NRD effort, DEP is seeking $950 million in NRD from sixty-six companies responsible for contamination located along the lower Passaic River and has required an NRD assessment and interim compensatory restoration of natural resource injuries. See NJDEP Directive No. 1, In the Matter of the Lower Passaic River, Sept. 19, 2003. The federal Environmental Protection Agency ("EPA") has also issued a "Notice of Potential Liability for Response Actions" to many of the same companies, inviting each to become "a cooperating party" to share the cost to investigate and remediate the lower Passaic River. Those companies that did not receive the EPA Notice did receive a CERCLA section 104(e) Request for Information from EPA. EPA also recently entered into an Administrative Order on Consent ("AOC") with Occidental Chemical Corporation ("OCC"), regarding its responsibility for dioxin contamination in the Newark Bay. Some have said that this AOC was entered by EPA to derail a citizens suit to be brought against OCC by local environmental groups.

Other Impacts on Brownfields, Transactions and Insurance
The new NRD program is having an impact on brownfields redevelopment, transactions and insurance. The specter of NRD increases the need to establish the "innocent purchaser" defense to liability, requiring thoughtful pre-acquisition planning. Transactions are complicated by the dearth of publicly-available information about NRD, as well as by the need to address NRD in representations, warranties and indemnities. Some environmental insurance policies cover NRD; many remediation cost-cap and pollution legal liability policies do not. Insurance coverage may exist for NRD under pre- "absolute pollution exclusion" policies. Many companies, however, have already settled with their insurers through buy-backs or releases.

Accordingly, corporate counsel and managers, parties required to clean up contaminated sites, developers and real estate trusts, lenders, insurers and other portfolio managers all should evaluate the impact of NRD to their business. With its aggressive NRD initiatives, NJDEP has again broken new ground in environmental enforcement.

In The Courts

Four Courts Rule on Issues Relevant to the Pursuit of Insurance Coverage
In Benjamin Moore & Co. v. Aetna Casualty & Surety Company et al., (A-77-02) (Mar. 24, 2004), the New Jersey Supreme Court addressed the novel issue of how deductibles are treated when determining what policies are required to respond and in what amount to long-tail environmental damage. Benjamin Moore, the policyholder, sought coverage from its primary carrier, Lumbermens Mutual Casualty Company ("Lumbermens") for personal injury and property damage resulting from exposure to lead paint. The policies had either a $250,000 or $500,000 deductible for each occurrence. Lumbermens maintained that Benjamin Moore was required to pay the full amount of the deductible in each year prior to being entitled to coverage. Benjamin Moore argued that the deductible should be pro-rated or, in the alternative, that it be allowed to pick the Lumbermens' policy that would apply and that it be required to pay only one deductible.

In its decision, the Supreme Court unequivocally reaffirmed the principles of insurance allocation that were initially adopted in Owens-Illinois. To determine what policies respond, Owens-Illinois established the continuous trigger of coverage, under which each year of a progressive environmental injury is a separate occurrence thus triggering all policies in effect during the period. In Owens-Illinois, the Supreme Court also adopted a pro-rata methodology for quantifying the loss attributable to each policy period (i.e., allocation).

To determine how the deductibles were to be treated, the Court first looked to the language of the policy, which was unambiguous and thus to be applied unless inconsistent with Owens-Illinois. Finding the Lumbermens' policy language consistent with Owens-Illinois, the Court rejected Benjamin Moore's arguments. First the Court again stated that it has rejected the joint and several approach to allocation where the policyholder chooses one year of coverage to respond to a loss. Second, under the Owens-Illinois rationale, each carrier is responding to a separate occurrence and is thus being held responsible for the loss that occurred during its policy period.

Once that amount is determined, the policy provisions, including limits and exclusions, are applied as they would apply to any loss during that period. Thus, Owens-Illinois does not affect the terms of coverage, which means it does not alter the applicable deductibles. Moreover, the Court noted that deductibles are a bargained-for term of the insurance contract, where the policyholder accepts more risk in exchange for a lower premium. Thus, Benjamin Moore was required to satisfy the deductible for the triggered policies prior to being entitled to coverage.

In Gilligan v. Harleysville Mutual Ins. Co., No. SOM-L-820-00 (Law. Div. Sept. 29, 2003), coverage was denied to a policyholder that had failed to establish an "occurrence" within the policy period. The policyholder owned property that had been operated as a gas station from 1982-1988. While there had been a leaking tank discovered and removed in 1983, the extent of ground water contamination with MTBE, a gasoline additive, was not discovered until 1991. The policyholder placed its insurance carrier on notice of a claim under policies issued between 1982 and 1991. However, beginning in 1986, each policy contained an absolute pollution exclusion, which precluded coverage for pollution events. The Court found that the policyholder failed to establish that the contamination occurred prior to 1986. The Court found it compelling that MTBE was not generally present in gasoline until 1984 and the policyholder could not establish that it received gasoline containing MTBE prior to that time.

In Rohm and Haas Co., v. Allianz Underwriters, Inc., No. MER-L-4664-95 (Law Div. Jan. 6, 2004), the Court declined to accept the findings of a Special Master who had denied coverage to a policyholder based upon the carrier's expected and intended pollution exclusion and late notice defenses. The policyholder, a specialty chemicals company, sent chemical waste from its Pennsylvania manufacturing facility to a site in New Jersey for disposal by incineration and evaporation. The carrier argued that under New Jersey law, insurance coverage is precluded for environmental cleanup costs that result from an event that is "expected or intended" by the insured. In rejecting this defense, the Court found that the carrier failed to carry its burden to show that the policyholder knew or was substantially certain that the particular harm would occur from its actions, but nevertheless engaged in the conduct anyway. The possibility or even probability of resulting harm is not enough to establish that the damage was "expected or intended." As to the pollution exclusion, the Court found that the carrier failed to establish that there was an intentional discharge of a known pollutant. Using the "expected and intended" analysis, the Court found that the "known pollutant" component of the analysis was missing. Here, the policyholder followed the then state-of-the-art standard for disposal of the particular waste and the Court found there was no intentional discharge. With respect to late notice, the Court affirmed that late notice will only preclude coverage if the carrier is prejudiced.

In Nav-Its, Inc. v. Selective Ins. Co. of America, No. A-1566-02T2 (App. Div. Dec. 23, 2003), the policyholder, a construction contractor that specialized in renovating office space, sought coverage from its commercial general liability insurance carrier for personal injury claims asserted against it arising from renovation work at a shopping center in Pennsylvania. During the renovations, floor coating and sealing were performed. The occupant of an adjacent office filed suit against the policyholder, seeking damages for personal injuries allegedly caused by exposure to toxic fumes that were released during the floor coating and sealing process.

Citing the absolute pollution exclusion, the carrier denied coverage. While typically asserted in the context of traditional environmental harms (e.g., damage that requires the remediation of pollutants in soil or water), carriers are asserting the absolute pollution exclusion as a defense to non-traditional environmental harms (e.g., exposure to toxic fumes from construction issues, chipping lead paint or carbon monoxide poisoning from a faulty furnace).

The Appellate Division reversed the grant of summary judgment to the policyholder and remanded the case, stating that the language of the exclusion must be reviewed to determine whether it is ambiguous under the particular facts to which it is sought to be applied. If not, it is enforceable.

Appellate Division Invalidates NJDEP Regulation
In New Jersey Association of Realtors v. NJDEP, No. A-0502-03T3 (App. Div. Feb. 25, 2004), the Appellate Division invalidated a recently amended provision of NJDEP's Technical Requirements for Site Remediation ("Tech Regs"), which requires that persons establishing a Deed Notice send copies of the recorded deed notice to certain entities. N.J.A.C. 7:26E-8.2(g)(5). NJDEP amended the regulation to require that notice be provided to the "New Jersey Realtors Association." NJDEP, conceding that the regulation was intended to apply to the New Jersey Association of Realtors ("NJAR"), expanded the persons to whom deed notices are to be sent so that a broader range of people would have knowledge that contamination exists at these properties. NJAR challenged the regulation stating that it contravenes the New Residential Construction Off-Site Disclosure Act (the "Act"), which requires a seller (including a broker) to provide a purchaser with notice of the availability of lists maintained by municipal clerks of off-site conditions that may affect the property value. The Appellate Division agreed that the regulation conflicted with the Act. The regulation impermissibly imposed a duty on realtors to compile a register of properties with deed notices to supplement the lists maintained by the municipal clerk. Under the Act, however, a real estate broker is only obligated to inform a purchaser of the existence of the municipal lists, not to create, maintain or supplement those lists.

NJDEP's Assessment of Monetary Penalties Found Invalid Under the Grace Period Law
Construing the provisions of N.J.S.A. 13:1D-125 to 133, otherwise known as the "Grace Period Law," the Appellate Division in NJDEP v. Marisol, Inc., Docket No. A-2472-02T5 (App. Div. Feb. 23, 2004), vacated the monetary assessments against a defendant that was cited for violating certain labeling requirements under the Solid Waste Management Act. Pursuant to the Grace Period Law, any person notified of a minor violation and who corrects that violation within the period of time specified in the notice cannot be assessed a penalty for the violation. Although the Grace Period Law has been on the books for approximately eight years, NJDEP has yet to promulgate regulations for its implementation and generally has been ignoring its mandate. Notwithstanding, the Court held that the Grace Period Law was applicable in this instance, finding that the defendant timely corrected the violations and that NJDEP failed to prove that the violations did not qualify as minor violations.

CERCLA

No CERCLA Contribution Claim Absent Primary Action
In E.I. du Pont de Nemours & Co. v. United States, 297 F. Supp.2d 740 (D.N.J. 2003), plaintiffs brought a CERCLA section 113 action for contribution against defendants to recoup environmental cleanup, removal, and response costs related to a facility once operated by plaintiffs and once owned by one of defendants' predecessors. The Court noted that CERCLA section 113 requires all the "indicia of a common-law contribution action," and, therefore, held that as a precondition to instituting such a claim, a plaintiff must first discharge, or be in the process of discharging, its liability in an action brought against it under CERCLA section 106 or section 107. Whether this decision will deter potentially responsible parties ("PRP") from volunteering to clean up contaminated sites and then seeking contribution from fellow PRPs remains to be seen.

Third Circuit Clarifies Factors for Determining Arranger Liability Under CERCLA
In Morton International, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669 (3d Cir. 2003), the Third Circuit held that the most important factors for determining arranger liability under CERCLA section 107(a)(3) are ownership or possession of a material, knowledge that the processing of the material can or will result in the release of hazardous waste, and control over the production process. The court stressed that while ownership or possession of the hazardous substances must be demonstrated, this factor alone is insufficient to establish liability. A plaintiff also must prove that a defendant had either control over the production process or knowledge that a release would occur during the process. According to the court, any less showing would broaden the reach of CERCLA section 107(a)(3) beyond Congress's intent and would provide inadequate reasons for holding a defendant responsible under the Act.

NJDEP

NJDEP Adopts New Stormwater Management Rules
On January 5, 2004, the NJDEP adopted two sets of changes to the administrative rules governing the management of stormwater in the State of New Jersey. Published in the February 2, 2004 New Jersey Register, the rules are intended to establish a comprehensive framework for addressing water quality impacts associated with existing and future stormwater discharges.

The first set of rules, known as the Municipal Stormwater Regulation Program Rules, requires the issuance of permits to public entities that own or operate small "municipal separate storm sewer systems," known as "MS4s." Under this program, permits must be obtained by municipalities, certain public complexes (such as universities and hospitals), and public authorities that operate or maintain highways. The permit program establishes basic requirements that must be implemented to reduce non-point source pollutant loads from MS4s. These basic requirements include such measures as the adoption of municipal ordinances to control litter and pet waste, the implementation of maintenance activities such as street sweeping and catch basin cleaning, and the development of public education programs. The deadline for MS4s to file a stormwater permit application was March 3, 2004. It is expected that these new rules will impact in some form all 566 municipalities and numerous public entities within the State of New Jersey.

The second set of regulations promulgated on February 2, 2004 addresses stormwater impacts from new development. These rules set forth the requisite components of regional and municipal stormwater management plans and establish stormwater management design and performance standards for proposed development. These new standards require the consideration of non-structural stormwater management techniques in new development, including minimizing impervious surfaces, minimizing the use of stormwater pipes and, where possible, preserving natural drainage features.

Among the most controversial of the rules impacting new development is the establishment of Special Water Resource Protection Areas around New Jersey's Category 1 ("C-1") surface waters, which receive special protection under the State Water Quality Standards because of their clarity, color, scenic setting or other aesthetic, ecological, recreational or water supply significance. The new rules establish a buffer area of 300 feet around C-1 waters and their immediate tributaries where new "major development" (i.e., those resulting in the disturbance of one or more acres of land or increasing the total impervious surfaces on the property by one-quarter acre or more) is restricted.

Relief from the new requirements may be available under the "grandfathering" provisions at N.J.A.C. 7:8-1.6, which provides that one of several municipal or State approvals must have been issued prior to February 2, 2004.

NJDEP Adopts Rules Requiring Specific Findings to Obtain CAFRA Permit
In response to the Appellate Division's holding in In the Matter of the Protest of Coastal Permit Program Rules, 354 N.J. Super. 293 (App. Div. 2002), on January 20, 2004, NJDEP finalized rules requiring the agency to make specific statutorily-required findings before issuing a permit under the Coastal Area Facilities Review Act ("CAFRA"). The Appellate Division had ruled that NJDEP's use of the Coastal Zone Management ("CZM") rules, N.J.A.C. 7:7E et seq., to review a CAFRA permit application did not satisfy the express requirements of CAFRA and, therefore, mandated that the agency also make specific findings under N.J.S.A. 13:19-10.

The net result is that in addition to satisfying the CZM rules, applicants cannot obtain a CAFRA permit unless NJDEP specifically finds, pursuant to N.J.A.C. 7:7-6.2, that the proposed development:

• Conforms with all applicable air, water and radiation emission and effluent standards and all applicable water quality criteria and air quality standards
• Prevents air emissions and water effluents in excess of the existing dilution, assimilative and recovery capacities of the air and water environments at the site and within the surrounding region
• Provides for the collection and disposal of litter, recyclable and solid waste in such a manner as to minimize adverse environmental effects and the threat to the public health, safety and welfare
• Would result in minimal feasible impairment of the regenerative capacity of water aquifers or other ground or surface water supplies
• Would cause minimal feasible interference with the natural functioning of plant, animal, fish and human life processes at the site and within the surrounding region
• Is located or constructed so as to neither endanger human life or property nor otherwise impair the public health, safety and welfare and
• Would result in minimal practicable degradation of unique or irreplaceable land types, historical or archaeological areas and existing public scenic attributes at the site and within the surrounding region

Notwithstanding that these factors may be addressed in part by the CZM rules, applicants now also must specifically address these factors in their Environmental Impact Statements or Compliance Statements to obtain a CAFRA permit.

NJDEP Begins Conversion to NAICS
Historically in New Jersey, the applicability of various environmental laws, most notably the Industrial Site Recovery Act and the Pollution Prevention Act, is determined upon the categorization of the operations under the Standard Industrial Classification ("SIC") numbers. As a result of the North American Free Trade Agreement ("NAFTA"), the federal Office of Management and Budget replaced the SIC system with the North American Industry Classification System ("NAICS"). New Jersey adopted legislation in August of 2003 that requires NJDEP to adopt regulations identifying with NAICS codes the facilities that to date have been covered by SIC codes. In January 2004, NJDEP proposed such regulations under the Pollution Prevention Act.

NJDEP Adopts New Method for Classification of Wetlands that Support Threatened or Endangered Species
On December 23, 2003, the Appellate Division ruled in In the Matter of Adopted Amendments to N.J.A.C. 7:7A-2.4, No. A-0228-02T5 (App. Div.), that NJDEP had authority under the Freshwater Wetlands Protection Act ("FWPA") to adopt the Landscape Project method to classify wetlands that support the habitats of threatened or endangered species. Under the Landscape Project method, wetlands that contain habitat characteristics that endangered or threatened species use or can be expected to use for breeding, resting and feeding are to be classified as wetlands of exceptional resource value.

The Landscape Project method replaces NJDEP's prior method of sighting-specific "areas of documentation" in which the agency made its wetlands habitat determination entirely on specific sightings of individual endangered or threatened species. The Landscape Project method utilizes satellite imagery to define habitat type and does not rely on specific sightings to determine whether a wetlands area is exceptional resource value based upon its use by threatened or endangered species.

The effect of the rule broadens NJDEP's ability to characterize exceptional resource value wetlands. The implication is far-reaching because the FWPA restricts activities within 150 feet of exceptional resource value wetlands.

NJDEP Cleanup Stars Announced
On February 23, 2004, Commissioner Campbell announced that 243 environmental professionals have been named Cleanup Stars. These Cleanup Stars are authorized to work with developers and responsible parties to expedite site cleanup and redevelopment at low risk sites. This will allow more time for NJDEP case managers to concentrate on high priority cases, such as those with greater environmental and public health concerns. A list of the pre-qualified Cleanup Stars will be posted on the NJDEP's website. NJDEP plans to announce in the spring the next application period for the Cleanup Stars program.

ONRR – Restoration Report
The NJDEP Office of Natural Resource Restoration (ONRR) recently has posted to its website all of the hazardous and petroleum discharge cases settled from inception of the program in 1993 through the fourth quarter of 2003. Since 1993, the ONRR has settled cases totaling over $42 million in damages. The settlement funds are being used to restore the public's resources injured by oil spills and hazardous waste sites. The ONRR currently has 100 active cases. For a list of the settlements, log onto http://www.state.nj.us/dep/nrr/reports/nrd_update200312.htm.

Legislative Action

Assembly Votes to Reinstate the Environmental Prosecutor
On January 26, 2004, the New Jersey State Assembly adopted Assembly Bill No. 1289 calling for the creation of a "Special Environmental Prosecutor" whose sole function will be to prosecute civil and criminal violations of New Jersey's environmental laws. Approved unanimously by the Assembly Environment and Solid Waste Committee, Assembly Bill No. 1289 proposes to revive a position that was first created during Governor Florio's Administration but was eliminated by Governor Christine Todd Whitman shortly after she took office. As conceived by the Assembly, the Special Environmental Prosecutor will be appointed by the Governor with the advice and consent of the Senate, but will report directly to the Attorney General. Under Assembly Bill No. 1289, the Special Environmental Prosecutor will be entitled to enlist the services of the Attorney General and call upon "any county prosecutor, any law enforcement officer ... and any State, county, or local government official or employee" for the purposes of carrying out the functions of the position. The adoption of Assembly Bill No. 1289 has already raised an outcry from New Jersey's business community that the revival of this position heralds a return to the "command and control" era of onerous environmental enforcement and a departure from the compliance-oriented approach preferred by the regulated community. While Governor James E. McGreevey campaigned on the issue of reviving the "Special Environmental Prosecutor," he so far remains silent on this issue.

Tax Credit for Site Remediation
A new credit in the State's Corporation Business Tax that would reimburse businesses for up to 100% of Brownfield cleanup costs was established with Governor McGreevey's signing of A-2628 in January (P.L. 2003, c. 296). The provisions of the act went into effect upon enactment and remain in effect through December 31, 2006. Only persons who are not "responsible parties" under the Spill Act are eligible for the credit.

Increased Penalties for Unlawful Disposal of Solid Waste
Persons who knowingly and/or recklessly transport or dispose of solid waste at an unauthorized disposal site face increased State and local penalties with the January enactment of A-2801 (P.L. 2003, c. 196). Further, persons who knowingly or recklessly engage in the unlawful collection of solid waste, whether or not for profit, are guilty of an offense. In both cases, the degree of offense and amount of the fines are proportional to the amount of the waste. The provisions do not apply to the transportation of solid waste to a county solid waste facility that is located outside of the county of origin of the solid waste being transported.

Brownfield Act Amended
Governor McGreevey amended the Brownfield Act by signing Assembly bill A-2585 into law in January (P.L. 2003, c. 224). As reported in the May 2003 issue of UPDATE, the new law revises the redevelopment agreement program by authorizing sales tax generated from the purchase of materials used for remediation or redevelopment at a brownfields site to be included in the tax revenues used as a basis for reimbursement of cleanup costs. The act also allows that if redevelopment is being performed in phases, reimbursement may commence at the completion of each phase in the same percentage as the occupancy rate of that particular phase.

Another provision of the act reduces from 90 to 45 days the time in which NJDEP must respond to a request to decrease a remediation funding source.

The bill, as introduced, would have increased the reimbursement rate of remedial costs from 75% to 100%, but the final amended version deleted this provision. Also deleted was a measure that would have authorized reimbursement of NJDEP oversight costs.

The new law also requires NJDEP to complete its investigation and mapping of the State's areas of historic fill within nine months of the law's effective date. In addition, the law mandates that data concerning the contamination of an aquifer be submitted in digital form by the person performing a remediation and that the agency make it publicly available in the GIS( Geographical Information System) within 90 days of receipt of the information.

EPA

EPA Performance Track – 39 New Facilities Become Members
On February 11, 2004, the EPA added 39 new facilities as members of the National Performance Track Program. The Performance Track Program rewards companies/facilities who "exceed regulatory requirements, implement environmental management systems, work closely with their communities, and set three-year goals to improve their environmental performance." Members receive low priority status for inspections, reduced regulatory, administrative and reporting burdens, and public recognition. There are currently 300 members and, once membership is granted, it lasts for three years. Applications are accepted twice a year: between February 1 and April 30 and between August 1 and October 31. For a list of the newest Performance Track members, more information regarding Performance Track, or an application, go to http://www.epa.gov/performancetrack.

EPA 2005 Budget
On February 2, 2004, President Bush submitted his 2005 environmental budget, providing $7.76 billion for the EPA – a $133 million increase over the 2004 request. Increased funds are seen in programs such as: the Clean School Bus USA program, which received $65 million ($60 million increase); the Great Lakes Legacy Program, which received $45 million ($35 million increase); the Targeted Watersheds Program, which received $25 million ($10 million increase); Brownfields cleanup, which received $210 million ($40 million increase); Superfund, which received $1.4 billion ($124 million increase); a new water quality monitoring initiative, which received $20 million; and $26 million to strengthen EPA's partnership with the states to monitor USTs, which is a 217% increase over the 2004 Consolidated Appropriations legislations level. According to EPA, this is the highest level of funding ever requested by a President for high-priority environment and natural resource programs.

Environmental Justice

Governor McGreevey Signs New Environmental Justice Order
On February 18, 2004, Governor James E. McGreevey signed an executive order calling upon State agencies to consider the impact of their decision-making on minority and low-income communities. Whether a significant victory for environmental interests or merely a first step, the executive order directs a coordinated strategy and interagency cooperation in addressing the unique problems faced by under-privileged communities. Specifically, the order directs the establishment of Spanish language websites by the New Jersey Department of Environmental Protection and the New Jersey Department of Health and Senior Services, and the creation of an Environmental Justice Task Force ("EJTF"). The EJTF is tasked with advising State agency heads about actions that should be taken to address environmental justice issues, as well as considering petitions filed by residents of the adversely affected community.