As noted in CSG Law’s recent environmental blog post on January 10, 2023, the USEPA issued a final rule incorporating ASTM International’s E1527-21 Standard for the Phase I site assessment process. The final rule now sets forth an amended and updated set of standards by which Phase I assessments must be conducted and prepared in order to satisfy the All Appropriate Inquiry (“AAI”) requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

Among many other changes, the E1527-21 Standard, as now incorporated into EPA’s final rule, includes new, significant considerations for emerging contaminants, such as PFAS compounds. Although PFAS and other emerging contaminants not yet identified as Hazardous Substances under federal law are technically outside of the scope of inquiry for purposes of AAI, the E1527-21 Standard provides that where such substances are defined as hazardous under applicable state laws, the Phase I may address those contaminants as “Non-Scope Considerations.” Notably, New York and Jersey have both designated PFAS compounds as Hazardous Substances, as that phrase is defined in the States’ respective environmental laws. While evaluation of Non-Scope Considerations will not impact whether a prospective purchaser qualifies for CERCLA liability protections under the AAI rule, these considerations are potentially very meaningful, as they can reveal potential future legal and financial liabilities that may otherwise have gone under the radar. That is particularly so in states like New York and New Jersey, which have led the way nationally in the regulation of PFAS compounds.

That said, it is expected that certain PFAS compounds will soon fall within the scope of the amended AAI rule and the E1527-21 Standard. In September 2022, EPA issued a proposed rulemaking which, if ultimately promulgated, will designate PFOA and PFOS as Hazardous Substances under CERCLA. The comment period on that proposed rulemaking has closed, and it is expected that a final rule will be issued in 2023. In that event, prospective purchasers will be required to consider the potential for PFOA and PFOS on or under target properties in order to qualify for the AAI rule’s CERCLA liability protections. 

On December 15, 2022, the United States Environmental Protection Agency (EPA) published a Final Rule for conducting Phase I Environmental Site Assessments. The Final Rule amends its All Appropriate Inquires (AAI) Rule referencing ASTM E1527-21 (and withdrawing reference to ASTM E1527-13) as satisfying the requirements for conducting AAI under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The EPA’s Final Rule is effective in 60 days, on February 13, 2023, and contains a one-year phase-out period of E1521-13(the prior ASTM standard) as satisfying the AAI Rule.

CERCLA requires prospective purchasers of property to conduct AAI into the environmental conditions of a property prior ownership and use of a prospective property in order to qualify for one of CERCLA’s landowner liability protections (i.e. bona fide prospective purchasers, contiguous property owners and innocent landowners).

Typically, environmental consultant documents the environmental conditions of a property by preparing a Phase I Environmental Site Assessment Report. Developers, lenders, and purchasers involved in commercial and industrial real estate should confirm that its Phase I ESA complies with EPA’s approved AAI standards to ensure it qualifies for environmental protections under CERCLA. Based on EPA’s Final Rule, starting February 13,2023, parties having a Phase I ESA prepared may have the ESA prepared in accordance with ASTM’s International Standard E1521-21 or E1521-13. After February 13,2024, only ASTM International Standard E 1521-21 may be used.

Additionally, a purchaser of commercial or industrial property must consult environmental state law where the property is located, to ensure that the “All Appropriate Inquires” that are being conducted on their behalf, satisfies the state requirements for environmental liability protection or the so called “innocent purchasers defense”. See N.J. S. A. 58:10-23.11g(d)(2), (5). For example, in New Jersey, mere compliance with ASTM E1521 -21 or E1521-13, does not satisfy New Jersey’ s Innocent Purchasers defense to liability under New Jersey’s Spill Compensation and Control Act (Spill Act). Under the Spill Act, for real property acquisitions after September 1993, “all appropriate inquiry” means “a Preliminary Assessment (PA), and a Site Investigation (SI), if the PA indicates that a SI is necessary. The PA and SI are in accordance with NJDEP requirements and NJDEP’s specific forms must be used in order to satisfy the Innocent Purchaser’s Defense.

Following up on the United States Environmental Protection Agency (EPA) September 6th publication of a proposed rule to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS)(collectively known as, PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), on December 6th EPA issued guidance on how states can utilize National Pollutant Discharge Elimination System (NPDES) permit programs to monitor for PFAS discharges and, if detected, act to reduce them before they are discharged to wastewater treatment facilities.  PFAS has been linked to various adverse health effects, including cancer, and can accumulate and persist in the environment and human body for long periods of time (hence their nickname as “forever” chemicals).  They have historically been found in various consumer products, such as fabrics and nonstick products; food packaging and cookware; and used in firefighting at airfields or as part of industrial processes    

By issuing this most recent guidance, EPA seeks to empower states by allowing them to leverage their pretreatment and permitting authorities to identify PFAS in wastewater and take actions such as imposing technology-based limits where PFAS discharges originate.  In turn, this comprehensive monitoring data will aid EPA’s goal of source-control, as well as develop a database of PFAS concentrations in various industry-based wastewater streams.  As EPA works to promulgate effluent guidelines, finalize analytical methods for detection and publish water quality criteria, EPA considers such guidance a crucial step in their effort to exposure pathway reduction by lowering the amount of PFAS entering the environment. 

A bill making its way through the New Jersey Legislature seeks to correct an unintended consequence of the single-use bag ban.

Since the ban on single-use plastic bags began in May 2022, those who have their groceries delivered receive them in reusable bags for each delivery instead of single-use plastic bags. However, for this subset of consumers, those bags from prior deliveries effectively serve as single-use bags.

This bill (S3114/A4741) would require grocery stores and third-party grocery delivery services that provide reusable bags for home delivery to provide a reusable bag takeback service, and establish a program for (1) return, sanitation and reuse of reusable bags, (2) recycling of reusable bags, or (3) donation of reusable bags to food pantries. In addition, for the next three years, grocery stores will also be permitted to deliver groceries in recycled paper bags or cardboard boxes.

While shoppers still grumble when they forget to bring a bag to the store, the bag ban – one of most comprehensive bans in the country – was lauded by environmental groups when it became law and has reportedly already avoided the use and disposal of more than a billion bags. Grocery stores like it too. The New Jersey Food Council, an alliance of food retailers and their suppliers, recently enthusiastically described the bag ban as “one of the most successful environmental programs ever implemented in New Jersey.”

The Senate version of the amendments was calendared for a second reading on November 21. Barring unforeseen issues, the bill could become law in the next few months.

While the Access Statute is a powerful tool in an environmental attorney’s toolbox, a recent court ruling by the New Jersey Appellate Division has restricted when that tool can be wielded.

The New Jersey Appellate Division, in Solvay Specialty Polymers USA LLC v. Paulsboro Refining Company LLC “(Solvay v. PRC”), has confirmed that a party must establish that access is “reasonable and necessary “before a court should grant access to another’s property. The access statute, N.J.S.A. 58:10B-16 (the “Access Statute”), authorizes a remediating party to seek an order from the Superior Court in a summary action for access to another’s property to undertake the necessary remediation of suspected or actual contamination if, after making a good faith effort, it is unable to reach an agreement with the owner. The Court will issue an order for access if it determines that either (1) a reasonable possibility exists that contamination has migrated to the offsite property, or (2) access to the property is reasonable and necessary to remediate the contamination.

In Solvay v. PRC, Solvay Specialty Polymers USA LLC (“SSP”) is under a NJDEP Directive to remediate PFAS compounds that have migrated off-site and contaminated groundwater and drinking water over a wide area. However, the Directive does not require SSP to sample PRC’s property, nor is  there data indicating that PRC is a contributing source of the contamination. As such, the Court held that SSP did not satisfy the second prong of the test, in that they had not demonstrated that access was “reasonable and necessary to remediate the contamination.” Consistent with NJDEP guidance that a party remediating a site does not have to identify the specific source of a co-mingled plume, the Appellate Division found that Solvay had satisfied its obligations by documenting the possibility of PFAS contamination from a source other than the Solvay facility. The Court noted that SSP had filed a contribution action under the Spill Act against PRC, which demonstrated that SSP could obtain information necessary to prove that it is not the only source of contamination without resorting to the remedies provided by the Access Statute.

The takeaway from Solvay is that a remediating party must demonstrate the necessity to access another’s property to complete its remediation and cannot use the Access Statute as a fishing expedition or discovery tool. However, the Access Statute remains a powerful tool to facilitate sampling of properties owned by others in order to complete the remediation.

 

On September 6, 2022, the United States Environmental Protection Agency (USEPA) published a proposed rule to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund.

These two per- and polyfluoroalkyl substances (PFAS) have been linked to various adverse health effects, including cancer, and can accumulate and persist in the environment and human body for long periods of time (hence their nickname as “forever” chemicals). PFOA and PFOS have historically been found in various consumer products, such as fabrics and nonstick products; food packaging and cookware; and used in firefighting at airfields or as part of industrial processes.

CERCLA, or the Superfund, seeks to remediate contamination from the release of hazardous substances and provide for cleanup cost recovery. Depending on the circumstances, the USEPA can move forward in responding to a hazardous waste spill, or require private parties to undertake and pay for cleanups. The USEPA and private parties incurring response costs can pursue cost recovery from other potentially responsible parties.

The USEPA’s proposed rule would include PFOA and PFOS in the list of regulated hazardous substances set forth in CERCLA section 102(a), which in turn would facilitate the response and cost recovery for cleanups of these substances. The proposed rule would require that vessels and facilities immediately report unpermitted releases of PFOA and PFOS to government agencies when such releases are at or above a reportable quantity (currently set as 1 pound or more in a 24- hour period). The proposed rule states that this reportable quantity may be modified once the USEPA has collected more data on releases and the resulting risks of human health and the environment. Furthermore, the USEPA states that the proposed rule would also require the United States Department of Transportation to list and regulate PFOA and PFOS as hazardous materials under the Hazardous Materials Transportation Act.

The deadline for the public and stakeholders to submit comments to the proposed rule is currently set to expire on November 7, 2022. The USEPA anticipates promulgating a final rule in August 2023.

For more than 200 years, the Lower Hackensack River (“River”) has been a hub for industrial operations in and around Bergen and Hudson Counties. More recently, concentrations of various contaminants in excess of EPA cleanup standards have been found in the sediment lying on the riverbed. According to EPA, concentrations of polyaromatic hydrocarbons (“PAHs”), polychlorinated biphenyl compounds (“PCBs”), and various metals – including arsenic, chromium, lead, and mercury – are present in surface and subsurface sediments stretching from the Oradell Reservoir all the way to Newark Bay. For reference, that is effectively the entire length of the Lower Hackensack River. In March 2022, the EPA announced that it would propose adding the River to the National Priorities List (“NPL”) and, as of September 7, 2022, the River has been added to the NPL. The identification of the Lower Hackensack River on the NPL is an important moment for environmental law in New Jersey: this the first time that a New Jersey river has been identified in its own right as an NPL site. Further, as discussed below, the River’s NPL listing triggers a complex investigatory process that will eventually lead to a CERCLA cleanup at the River and the identification of – and, almost certainly, litigation between – potentially responsible parties.

What is the NPL?

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) requires the EPA to create a prioritized list of sites having a known or threatened discharge of hazardous substances into the environment. CERCLA and its implementing regulations set forth an array of factors that EPA must consider when determining whether a site should be added to the NPL (Hazard Ranking System), and any additions to the NPL must go through similar public-notice-and-comment processes to regulations issued by the EPA. The NPL’s identification of sites serves primarily to create a centralized listing at the agency level of contaminated sites that require or may require remedial action to be performed in conformity with the CERCLA rules. Identification of a site on the NPL acts as an important informational tool for EPA, which relies on the NPL to prioritize use of Superfund monies and determine sites needing further evaluation and investigation.  Additionally, a site’s listing on the NPL provides public notice to former owners and operators in and around the site that a CERCLA investigation and cleanup is likely to be initiated. Identification on the NPL does not, by itself, guarantee that a site will receive Superfund monies, nor does identification of a site on the NPL assign liability for a discharge or set forth the requirements for a particular site’s investigation or cleanup.

What does this mean for the River?

Now that EPA has identified the River on the NPL, a years-long – and more likely decades-long process – will begin. Over the next several years, EPA’s Region II office will investigate the site and design a proposed remedy to address the sediment contamination present in the River. Going forward, EPA will begin the process of performing a remedial investigation/feasibility study (“RI/FS”), which will pull together objective data about site conditions. The results of the RI/FS, which will be distilled into a publicly available document, will inform remedy selection. Once EPA has made a final determination as to a proposed remedy, it will be set forth in a detailed document called a Record of Decision (“ROD”), which will undergo a notice-and-comment period. Notably, participation by stakeholders and the public is encouraged throughout the process. Once EPA has formally issued the ROD, the site enters the remedial action phase, during which the selected remedy is implemented.

During this process, EPA will seek to bring potentially responsible parties (“PRPs”) to the table to participate in (and pay for) site investigation and remedial implementation. Relatedly, it should be noted that the River’s identification on the NPL comes at the request of the New Jersey Department of Environmental Protection (“NJDEP”), which has long sought to address the contamination present in the roughly 23-mile-long stretch of River. Thus, now that the River has been identified on the NPL, current and former landowners and operators along the River should anticipate that EPA and NJDEP will begin an aggressive search for PRPs. As that process unfolds, it is highly likely that litigation under CERCLA will be initiated to assign liability to PRPs and to allocate that liability among and between them.

The investigation at the Lower Hackensack River has only just begun, and we are likely years away from the issuance of a ROD. But the River’s listing on the NPL represents an important early step in the process that signals to stakeholders that EPA and NJDEP are serious about initiating the remedial process.

The Third Circuit has affirmed the dismissal of a Clean Water Act (CWA) citizen suit because the plaintiff failed to provide the defendants with adequate notice of the basis of the claim. Adequate notice is a procedural hurdle to citizen suit actions intended to provide defendants with an opportunity to correct CWA violations prior to litigation. EPA regulations explain that proper notice includes, among other things, the standard or limitation that was violated and the location of the violation. Without prior notice, defendants cannot discern what response will avoid litigation.

The case, Shark River Cleanup Coalition v. Wall Township, concerned a sewer line that discharged to the Shark River Brook. Plaintiff discovered that a large void had formed around an otherwise buried sewer pipe and surmised that the missing soil had entered the damaged pipe and discharged to the nearby creek. The Shark River Cleanup Coalition’s counsel sent a CWA pre-suit notice letter to the property owner and the municipality that operated the sewer system. The notice alleged that the exposed sewer line violated New Jersey regulations and the CWA.

The Third Circuit addressed the specificity of both the location of the violation and the alleged violations. The District Court had dismissed the case because the notice letter did not identify the location of the alleged violation. For some reason, the plaintiff chose not to identify the precise location of the damaged pipe. On appeal, the Third Circuit reversed the District Court decision, finding that while the plaintiff could have been more helpful the defendants were eventually able to locate the exposed sewer line based on the information provided in the notice letter.

However, the Third Circuit also decided that the notice did not identify the alleged violations with sufficient specificity. The CWA regulations require that the notice “include sufficient information to permit [Defendants] to identify the specific standard, limitation, or order alleged to have been violated[.]” In this case, the notice referred to the entirety of the Clean Water Act and all of the related federal regulations. The Third Circuit found that a citation to the entirety of the CWA was not sufficient to apprise the defendants of an eventual claim based on an unpermitted discharge of pollutants (in this case, soil) pursuant to 33 USC 1311(a).

Going forward, plaintiffs will be sure to include the specific CWA provision alleged to be violated within their notice letters. To the extent that defendants previously received notice letters that were followed by litigation, those letters should be reviewed to ensure they specify alleged violations in sufficient detail to satisfy the EPA regulations.

On June 6, 2022, the New Jersey Department of Environmental Protection (“NJDEP”) proposed its long-awaited environmental justice rule (the “Proposed Rule”). The Proposed Rule will impact permitting considerations on certain new and expanded facilities, and renewals of existing major source air permits located in New Jersey’s overburdened communities. The Proposed Rule would implement the requirements of the groundbreaking environmental justice legislation (the “EJ Law”) enacted September 18, 2020 (N.J.S.A. 13:1D-157 et seq.). The Proposed Rule has significant implications for certain facilities located wholly, or partly, in overburdened communities.  If adopted, the Proposed Rule will require extensive analysis of stressors in the overburdened community, the potential of additional control measures to avoid adverse stressors, and significant public participation requirements. For those intending on locating a new covered facility in an overburdened community, the EJ Law and Proposed Rules may result in a denial of a permit.  The comment period for the Proposed Rule is currently scheduled to expire on September 4, 2022.

The EJ Law and Proposed Rule cover 8 categories of facilities:  (1) major sources of air pollution (i.e. those facilities that have or may require a Title V Operating Permit for air emissions); (2) resource recovery facilities or incinerators; (3) sludge processing facilities, combustors, or incinerators; (4) sewage treatment plants with a capacity of more than 50 million gallons per day; (5) transfer stations or other solid waste facilities, or recycling facilities intending to receive at least 100 tons of recyclable material per day; (6) scrap metal facilities; (7) landfills, including but not limited to ash, construction and demolition facilities, or solid waste facilities; and (8) medical waste incinerators (with exceptions for certain self-generating hospital and university facilities).

The EJ Law broadly defines an “overburdened community” as “any census block group,” in accordance with the most recent United States Census, in which (1) at least 35 percent of households qualify as low-income households; (2) at least 40 percent of residents identify as minority or as members of a State recognized tribal community; or (3) at least 40 percent of households have limited English proficiency. Census blocks are not individual municipalities, but rather smaller population blocks. It is important to understand that census blocks meeting the definition of overburdened communities are not limited to New Jersey’s major cities with significant commercial and industrial operations. Rather, these overburdened communities are situated throughout New Jersey, even in what may otherwise be considered affluent communities.  The location of overburdened communities can be found on NJDEP’s interactive map to determine if their facilities are sited in overburdened communities.

The permit process for a facility in an overburdened communities must include, at a minimum, a submission of an “Environmental Justice Impact Statement” (“EJIS”) addressing the potential environmental and public health stressors.  The Proposed Rule lists individual subcategories of environmental and public health stressors to be considered by the NJDEP divided into eight subcategories of stressors, including concentrated areas of air pollution, mobile sources of air pollution, contaminated sites, transfer stations or other solid waste facilities, recycling facilities and scrap metal facilities, point-sources of water pollution, stressors that may cause public health impacts, density/proximity stressors, and stressors that are social determinants of health (unemployment and education).

As set forth in the EJ Law, the NJDEP is compelled to deny permits for new facilities which, if approved, would cause or contribute to adverse cumulative environmental or public health stressors in the overburned community higher than those borne by other communities in the State, county, or other geographic unit selected by the NJDEP. An exception, however, involves new facilities which successfully demonstrate that they will serve a compelling public interest for the host overburdened community. A compelling public interest must primarily serve essential environmental, health, or safety needs of the overburdened community; must be necessary to serve the essential environmental, health, or safety needs of the overburdened community; and demonstrate that no feasible alternatives can be located outside the overburdened community. Economic benefits of the proposed new facility are not considered in this analysis.  For expansions of existing facilities, and renewals of major source air permits, the NJDEP may require additional conditions if there will be disproportionate impact in an overburdened community.

The Proposed Rule sets forth the regulatory process for permit applicants to follow. Initially, the NJDEP suggests that facilities request an “initial screening” from the NJDEP to determine the relevant individual stressors in an overburdened community. In conducting this initial screening, the NJDEP proposes to compare the individual adverse environmental and public health stressor with each stressor in a “geographic point of comparison” to determine the “combined stressor total.” The geographical point of comparison will select the lower stressor value of either the State’s or County’s 50th percentile, excluding the value of all other overburdened communities. It appears that the NJDEP will then compare the “combined stressor total” of the overburdened community to the “geographic point of comparison,” and determine whether the overburdened community is subject to “adverse cumulative stressors.” This comparison also seeks to identify “disproportionate impacts” of the facility to the overburdened community by either creating or contributing to adverse cumulative impacts.

Regardless of whether an overburdened community is subject to adverse cumulative impacts, or subject to disproportionate impacts by a facility, all facilities located within an overburdened community must submit an EJIS, the requirements of which are listed in the Proposed Rule.   The EJIS contains basic information and analysis of stressors and screening, among other things.  Notably, the list of items that must be completed as part of an EJIS includes satisfaction of any local environmental justice or cumulative impact analysis requirement.  If the overburdened community is subject to adverse cumulative stressors or cannot avoid disproportionate impact, the Proposed Rule requires “Supplemental Information” that is in addition to the EJIS.  This “Supplemental Information” requirement is burdensome, and includes much more detailed environmental information, energy alternatives available such as renewables, and an analysis of proposed control measures to mitigate stressors.

The Proposed Rule also sets forth additional requirements for new major source air facilities seeking permits for new facilities or expansion of existing facilities. The Proposed Rule creates a new standard, known as “Localized Impact Control Technology” (“LICT”) which applies to permit applications for facilities with potential to emit hazardous air pollutants at a rate equal or greater than state-of-the-art (“SOTA”) thresholds; or with potential to emit various other contaminants (i.e., carbon monoxide, nitrogen oxide, particles, etc.) at 5 or more tons/year. While the SOTA threshold is the basis, the focus for LICT is on technical feasibility rather than economic considerations. The analysis for LICT is proposed as a top-down review of technically feasible control technologies, including: measures applied to existing sources; innovative control technologies; modification of processes or equipment; other pollutant prevention measure; or a combination of the above. Generally, the most effective air pollution control technology is selected unless the applicant demonstrates it is technically infeasible;, has unreasonable environmental impacts when compared to air contaminant reduction benefits; or relies on fuels not readily available; or will have adverse energy impacts compared to the air contaminant emission reduction benefits.

With respect to renewals of existing air permits, the NJDEP will require applicants to propose control measures to avoid contributions to adverse environmental and public health stressors. If adverse impacts cannot be avoided, the NJDEP may impose conditions. Applicants will be required to: conduct a facility-wide risk assessment, based on protocols approved by the NJDEP in advance; conduct a technical feasibility analysis, if equipment at the facility is dated; and demonstrate effective control measures.

Finally, the Proposed Rule sets forth and elaborates on the requirements to engage the community for public participation. Facilities will be required to provide proper notice 60-days prior to the hearing date for the application. Proper notice includes: two newspaper advertisements in the overburned community (including non-English newspapers in the appropriate circumstances); copies to the overburdened community’s municipal clerk and governing body; notice to the NJDEP; certified mail notices to property owners, residents, and easement holders, within 200 feet of the facility; conspicuous signage at the applicable facility; and any other methods identified by the applicant, such as direct invitations to active community groups, automated phone, voice, or electronic notices, and flyers.  Following appropriate notice to the overburdened community, the permit applicant is generally required to hold public meetings within the overburdened community. Such meetings should occur after 6:00 pm EST on weekdays and must include a recorded virtual component. During such public meetings, the permit applicant must present its application and accept oral and written comments. Written comments must be accepted for a period of at least 60 days following the required notice. After close of the public comment period, the applicant must prepare a written transcript of the public hearing and respond to comments.

As can be gleamed from the information above, the Proposed Rule will have momentous impacts on permitting assessments for most New Jersey facilities. A thorough understanding of the Proposed Rule will be required for any entity seeking to expand operations in New Jersey, as well as any major source seeking to continue operations within an overburdened community. Accordingly, we encourage that stakeholders participate in the comment process to seek further clarification of the Proposed Rule, including how the NJDEP will carry out its comparison and determination of “adverse cumulative impacts” in an overburdened community.

Comments and questions should be addressed to the NJDEP by September 4, 2022, using this link, or via paper filings at:

Melissa P. Abatemarco, Esq.

Attn.: DEP Docket No. 04-22-04
Office of Legal Affairs
Department of Environmental Protection
401 East State Street, 7th Floor
Mail Code 401-04L
PO Box 402
Trenton, New Jersey 08625-0402
Interested stakeholders are also encouraged to attend the NJDEP’s public hearings, currently scheduled at the times and locations provided below:
  • Monday 7/11/22 – 3:00-5:00 p.m.; 7:00-9:00 p.m. – NJDEP Public Hearing Room – 401 East State Street, Trenton, NJ
  • Wednesday 7/13/22 – 6:30 p.m. – Ray and John Kroc Corps Community Multi-Purpose Rooms, 1865 Harrison Avenue, Camden, NJ 08105
  • Wednesday 7/27/22 – 6 pm. – NJIT, Campus Atrium Center –First Floor, 150 Bleecker Street, Newark, NJ 07102
  • Thursday 7/28/22 – 6 p.m. – Virtual hearing – NJDEP Teams Meeting
For more information, please contact your CSG Law attorney or the author of this article.

Bill S2515, signed into law last month, establishes recycled content requirements starting in 2024 for certain plastic, glass and paper packaging and bans polystyrene packing peanuts.

Starting in 2024, rigid plastic containers will be required to contain at least 10% postconsumer recycled content, while plastic beverage containers will need to contain at least 15%.  But that’s just the beginning.  Thereafter, the rates of postconsumer recycled content will incrementally increase, until a cap of 50% is reached by 2036 and 2045, respectively.  The new law also establishes:

  • a 35% standard for recycled content in glass bottles;
  • a 20% standard for plastic carryout bags;
  • a standard of between 20% and 40% for paper carryout bags, depending on size; and,
  • a range of standards for plastic trash bags based on thickness.
  • Polystyrene packing peanuts will also be banned in 2024

Proponents of the new law hope that it will serve as a model for more states to follow.  However, industry advocates and manufacturers are concerned that the new law is overly burdensome and sets goals that are unrealistically high when compared to market supply.  In an effort to try and address those concerns, the new law directs the NJDEP to establish incentives for manufacturers, recyclers, and retailers to collect and reuse polyethylene film.  In addition, the NJDEP must work with the Association of New Jersey Recyclers and the Clean Communities Program, a statewide litter abatement program, to develop and implement a statewide education program meant to encourage recycling.