MEMBER NOTES
Hot Topics in Environmental , Energy , and Climate Policy for 2023
By Agnes Antonian Chair of Environmental Law Group and Christina Sartorio Ku , Partner at the firm Connell Foley
From highly-anticipated topics such as so-called “ forever chemicals ” and Environmental Justice to Supreme Court decisions regarding Clean Water Act impacts and an ongoing debate concerning the scope of independent judgment of Licensed Site Remediation Professionals , 2023 will bring significant changes to environmental laws and regulations in New Jersey and beyond .
New Jersey Issues Forever Chemicals – Emerging Contaminants
Since 2018 , the New Jersey Department of Environmental Protection ( NJDEP ) has adopted a number of regulations to address per- and polyfluoroalkyl substances ( PFAS ) impacts :
◾ Drinking Water Standards : NJDEP has adopted Maximum Contaminant Level ( MCL ) standards for three PFAS chemicals in drinking water throughout the state : 13 ppt for PFNA and PFOS and 14 ppt for PFOA . These standards may be amended in 2023 , depending on the United States Environmental Protection Agency ’ s ( USEPA ) adoption of the National Primary Drinking Water Regulation ( described below ). These regulations already affect many municipal and state water providers and may have more stringent and far-reaching implications .
◾ New Hazardous Substances : Last year , the NJDEP added PFNA , PFOA , and PFOS to the list of hazardous substances at N . J . A . C . 7:1E .
◾ Groundwater Quality Standards : Last year , the NJDEP also set groundwater quality standards for PFOA , PFOS , and PFNA , mirroring the MCL standards described above .
◾ Soil Standards : Last fall , the NJDEP also announced interim soil remediation standards for PFOA , PFOS , PFNA , and GenX . These standards apply to ( i ) the ingestion-dermal exposure pathway ( for residential and nonresidential , respectively as PFNA 47 ppb and 670 ppb ; PFOA 130 ppb and 1,800 ppb ; PFOS 110 ppb and 1,600 ppb ; and GenX 230 ppb and 3,900 ppb ), ( ii ) the soil leachate remediation standard for migration to groundwater exposure pathway ( PFNA 0.26 ppb ; PFOA 0.28 ppb ; and PFOS 0.26 ppb ) and ( iii ) the migration to ground water exposure pathway ( calculated for each site ). The NJDEP is expected to announce final soil remediation standards , which may be issued this year . The NJDEP is also expected to issue surface water quality standards for these chemicals .
Environmental Justice
The final environmental justice regulations have been signed by the DEP . The proposed rules were issued in June 2022 and are considered very expansive . These rules will require an environmental justice-specific analysis for specific types of facilities , specifically , major sources of air pollution , incinerators , sludge processing facilities , large sewage treatment plants , transfer stations and other recycling facilities , scrap metal facilities , landfills and medical waste incinerators excluding hospitals and universities .
The environmental justice regulation requirements are triggered by an application for or renewal of a major source permit . Once triggered , a six-step environmental justice evaluation will require screening , preparation of an environmental justice statement , and public participation . The applicant must demonstrate that the facility will not disproportionately impact the community . If there is an impact , the NJDEP will deny the permit unless a compelling public interest can be demonstrated . Business groups have opposed the expansive nature of the proposed regulations , fearing that the rules will create significant delays and potentially drive out existing facilities that are subject to the environmental justice rules .
Dirty Dirt – A-901 Permits
The “ Dirty Dirt ” law was enacted on January 21 , 2020 , and intended to regulate more closely and track the disposal of construction dirt and debris . The law was intended to protect against illegal disposal of regulated soil . It is intended to exclude businesses that generate less than 15 cy and have a storage yard with less than 100 cy of fill or soil . Alternatively , a business can certify that the materials that are being handled do not contain debris or contaminants above NJDEP cleanup standards ; however , DEP has not yet specified how one can demonstrate compliance .
While the proposed regulations are expected to be issued by June 2023 ( at the earliest ) this law has created a lot of confusion and concern . Many businesses chose to submit a two-page soil and recycling registration form before the July 14 , 2022 , deadline rather than applying for the A-901 license pending the enactment of the regulations .
This law may impact any business that reuses soil and construction debris . Thus , depending on how the regulations are drafted , they may affect even those with tenuous connections to those actually moving the dirt . If a business is subject to this law , they will be subject to extensive disclosure of personal and business information that will be reviewed by the Office of the Attorney General , State Police , FBI , and other NJ agencies . It is unclear how detailed or extensive this disclosure will be and how many employees will be subject to same .
While it is currently unclear who is impacted , the NJDEP appears to be taking an expansive view that would potentially impact many businesses and parties that the legislators likely did not envision when drafting the law , including general contractors , LSRPs and landscapers .
Climate Change Policies – Flood Control , Electrification Measures
In January 2020 , Governor Murphy signed Executive Order 100 , the Protecting Against Climate Threats (“ NJ PACT ”) Initiative . A goal of NJ PACT was to achieve 100 percent clean energy and an 80 percent reduction in greenhouse gas emissions , from 2006 levels , by 2050 . NJ PACT requires the proposal of regulations incorporating climate considerations , including sea level rise and chronic flooding . In furtherance of NJ PACT , its requirements , and goals , in the fall of last year , the NJDEP proposed rules regulating new and renovated construction in flood-prone inland areas , updating flood zones , and amending rainfall data for projects along rivers and streams .
Additionally , in February of this year , Gov . Murphy outlined the next steps for his climate plan , which would accelerate the transition to 100 percent clean energy by 2035 . This plan includes a ban on the sale of gasoline-fueled vehicles by 2035 and using federal funding to install zero-emission heating and cooling systems in 400,000 residential homes and 20,000 commercial spaces by 2030 . The goal is to phase out gas and nuclear sources of energy .
Industry leaders are skeptical about these goals , given the unavailability of future technologies under this accelerated timeframe as well as practical concerns , such as the known issues
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