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.

New Jersey’s Global Warming Response Act (GWRA) requires an 80% statewide reduction of greenhouse gas emissions by 2050. The building sector accounts for approximately 25% of emissions, primarily from natural gas and fuel oil used for heating. Achieving the 80% emissions reduction goal is impossible without substantially reducing emissions from buildings.

New Jersey’s Energy Master Plan identifies zero carbon construction as a primary goal, and further states that the building sector should be 90% decarbonized/electrified by 2050. Despite those lofty goals – New Jersey has 3.6 million residential units and nearly 600,000 commercial properties – the Energy Master Plan only describes a few preliminary steps that would do little to move New Jersey towards a decarbonized building sector (e.g., expanding existing incentives, conducting studies, etc.).

Like New Jersey, New York’s climate plan requires a massive reduction of carbon emissions by 2050. This month, New York Governor Kathy Hochul announced her support for a statewide natural gas ban for new buildings. The ban is set forth in New York’s climate policy blueprint which calls for legislation requiring new buildings to use zero-emission heat sources. The policy timeline calls for a ban on new natural gas connections to single-family homes and low-rise apartments in 2024 and all new buildings by 2027. Similar legislation already enacted in New York City requires electric heat for new smaller buildings in 2023 and larger buildings by 2027.

New York City’s decarbonization deadlines are fast approaching, as are New York State’s proposed deadlines, and will soon shine a spotlight on New Jersey’s comparative inaction. New Jersey’s recent 80×20 report mandated by the GWRA states that new construction should be carbon free by 2025, and that a roadmap should be developed to address decarbonizing existing buildings in the short term. How New Jersey eventually substantively moves towards building sector decarbonization is sure to become a heavily debated and contentious issue worth following.

Recently, the Cannabis Regulatory Commission (“CRC”) announced that it would begin accepting applications for Class 1 (cultivator), Class 2 (manufacturer), and Test Laboratory licenses under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act on December 15, 2021. Class 5 (retailer) license applications will be accepted beginning March 15, 2022. Although the details of the applications are not yet fully known, CRC’s Notice of Acceptance (“NOA”) sets forth the broad application requirements and scoring criteria for applications, and one thing is clear: full annual license applicants need to secure their proposed locations in order to submit a compliant proposal. Although many municipalities have opted into the cannabis program, they have also enacted restrictive zoning ordinances pertaining to adult-use siting.  This means market entrants will want to be particularly careful about how they select the future home of their new business.

Many municipalities are restricting cannabis businesses to historically industrial, manufacturing, and commercial districts. The historical use of a property matters when an applicant chooses a proposed location. Under New Jersey’s Spill Compensation and Control Act (“Spill Act”), liability for the cleanup of historic discharges on a site is broadly applied to any person who is “in any way responsible” for the contamination. Therefore, Spill Act liability can reach a current landowner who – though not the actual cause of the discharge – failed to perform sufficient due diligence to detect potential preexisting contamination on the property prior to their purchase of the site. That said, Spill Act carves out a narrow “innocent purchaser” defense, whereby a prospective owner of property containing historical contamination can demonstrate that they performed sufficient pre-acquisition due diligence to detect potential environmental liabilities and, subsequent to that due diligence, still did not know of (and did not have reason to know of) the contamination. Additionally, the Spill Act’s federal counterpart, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), has a similarly broad reach regarding historic contamination. Like the Spill Act, CERCLA also provides a carve-out for careful purchasers, called the “innocent landowner defense.” However, what constitutes sufficient due diligence under CERCLA and the Spill Act are not exactly the same and, accordingly, an abundance of caution and meticulous environmental due diligence is advisable. Certainly, a purchaser must conduct “all appropriate inquiry” into the potential environmental liability associated with the target property and, at a minimum, that means performance of a Preliminary Assessment (for purposes of the Spill Act) and a Phase I Environmental Site Assessment (for purposes of CERCLA).

With the rolling application window rapidly approaching, there is no time to waste for potential applicants. Indeed, even applicants for conditional permits – which do not require immediate submission of proof of site control – will want to get started right away on securing a site for their new venture. But proceed with caution, because unknown environmental liabilities now can lead to massive financial liabilities (and years-long litigations) later.

On November 8, 2021, Governor Murphy signed Assembly Bill A3352 (the “Bill”) requiring all new warehouses containing 100,000 square feet or more to reserve at least 40% of its roof space for the future installation of a solar facility. The Bill, which takes an important step towards achieving the 2019 Energy Master Plan goal of having 50 percent of New Jersey’s energy generated by renewable sources by 2030, addresses the pressing need for more renewable energy generation in New Jersey.

The key aspects of the bill are as follows:

  1. The requirement applies to all warehouses which have construction permits that are not declared complete by the enforcing agency before July 1, 2022.
  2. To comply a warehouse must set aside no less than 40% of its roof area for the future installation of a solar photovoltaic or solar thermal system. The roof area is the roof or building overhang calculated as the horizontally projected areas minus the areas covered by skylights, occupied roof decks, vegetative roof areas and mandatory access or set back areas required by the State Uniform Construction Code, or as otherwise provided in the 2018 International Energy Conservation Code, and any successor model code concerning solar-ready zones.
  3. A warehouse is defined as any building, room, structure or facility used primarily for the storage of goods intended for sale.
  4. The Bill directs the Department of Community Affairs to adopt rules and regulations establishing standards for the design and construction of solar-ready buildings.

The Bill is effective immediately.

On October 13, 2021, the Biden Administration announced its plan to develop seven major offshore wind farms on the East and West coasts and in the Gulf of Mexico. These projects are part of President Biden’s plan to deploy 30 gigawatts of offshore wind energy by 2030, which would generate enough electricity to power more than 10 million homes. Officials said the projects could avoid about 78 million metric tons of planet-warming carbon dioxide emissions, while creating up to 77,000 jobs.

Deb Haaland, Secretary for the Department of the Interior (DOI), said her department is “laying out an ambitious road map as we advance the administration’s plans to confront climate change, create good-paying jobs, and accelerate the nation’s transition to a cleaner energy future.” According to Secretary Haaland, DOI hopes to hold lease sales by 2025 of the coasts of Maine, New York, and the mid-Atlantic, as well as the Carolinas, California, Oregon, and the Gulf of Mexico. This is in addition to DOI’s ongoing collaboration with other federal agencies to increase renewable energy production on public lands, with a goal of at least 25 gigawatts of onshore renewable energy from wind and solar power by 2025.

Secretary Haaland also addressed commercial fishing businesses, which have historically been a source of opposition to offshore wind farms. She said officials hope to reduce conflict with fishing groups by engaging “early and often with all stakeholders prior to identifying any new wind energy areas.” Relatedly, the Department of Energy said it will be spending $11.5 million to study risks that offshore wind development may pose to birds, bats, and marine mammals, as well as survey changes in commercial fish and marine invertebrate populations at an offshore wind site on the East coast. The Department of Energy will also be spending $2 million on visual surveys and acoustic monitoring of marine mammals and seabirds at potential wind sites on the West coast.

2021 has already been a busy year for offshore wind permitting. In May, DOI’s Bureau of Ocean Energy Management (BOEM), which is the lead permitting agency for offshore wind development, issued a Record of Decision for the Vineyard Wind 1 Offshore Wind Energy Project, located off the coast of Massachusetts, and the Environmental Protection Agency (EPA) issued a final Outer Continental Shelf (OCS) air quality permit for the project in June. BOEM also completed its Environmental Impact Statement for the South Fork Wind Energy Project, located near New York and Rhode Island, in August, and EPA issued a revised draft OCS air quality permit in October for the same project. DOI is in the process of reviewing several additional offshore wind projects, including the Ocean Wind project off the coast of New Jersey, which has a total capacity of 1,100 megawatts, enough to power 500,000 homes across the state.

Given the Biden Administration’s emphasis on transitioning to renewable energy, new developments in this area will remain in the public spotlight. Due to the general lack of offshore wind permitting prior to the Biden Administration, there will be many novel legal questions related to permitting requirements that will arise over the course of future offshore wind farm permit applications. Therefore, it is important for stakeholders, such as utilities, developers, and investors, to monitor the upcoming draft permits from BOEM, EPA, and other federal agencies in order to remain apprised of, and potentially comment on, the government’s interpretations and implementation of the applicable laws and regulations pertaining to offshore wind permitting.

On September 24, 2021, Governor Murphy signed a new law, effective immediately, that will allocate $10 million for lakes in New Jersey impacted by harmful algal blooms (P.L.2021, c.225).  The law calls for the New Jersey Department of Environmental Protection (“NJDEP”) to make a supplemental appropriation of $10 million for grants for lake management for conservation and recreational purposes.

Under this law, grants are available only for lakes accessible to the general public.  The law defines “qualified entities” to include the Greenwood Lake Commission; the Lake Hopatcong Commission; an entity established as a joint meeting surrounding a publicly accessible lake for the management of the lake (including, but not limited to, the Deal Lake Commission or the Lake Topanemus Park Commission); or a 501(c)3 nonprofit organization whose mission is the management of a publicly accessible lake.

Grant funds may be used for:

  • Projects that improve water quality and increase recreational access use of lakes, including projects to control nutrient levels in lakes to prevent future harmful algal blooms; and
  • Stormwater and nonpoint source pollution activities that will improve or protect the use of a lake for recreation purpose.

The NJDEP is directed develop an application by which a qualified entity may apply for a grant, as well as application ranking criteria.  The NJDEP is required to provide notice of the grant funding program on its website.  As of this writing, the announcement has not yet been made on NJDEP’s website.

The presence of the algal blooms has deterred tourists and residents from certain lakes, including Greenwood Lake and Lake Hopatcong.  Both lakes were subject to closure at times during the past two summer tourist seasons.  This post is a supplement to our prior blog post on January 9, 2020, “Funding Available to Combat Harmful Algal Blooms,” which provides more background on the hazards associated with harmful algal blooms.

On August 5, 2021, the New Jersey Department of Environmental Protection (“NJDEP”) issued updated guidance on how remediating parties and Licensed Site Remediation Professionals need to address Contaminants of Emerging Concern (“CECs”).  The guidance documents address timeframes for addressing CECs, include frequently asked questions regarding CECs, and provide a list from the EPA of industry sectors believed to have used perfluoroalkyl substances (PFAS).  NJDEP also updated its CEC web page.

NJDEP, the United States Environmental Protection Agency (“USEPA”), and other agencies are constantly evaluating the risks to the public from chemical substances in the environment.  As risks become known, chemicals are added to the list of substances that are required to be evaluated during the remediation process.  NJDEP calls these CECs.  The August 5th  NJDEP update specifically addresses 4 CECs, PFAS, 1,4-dioxane, 1,2,3-trichloropropane, and perchlorate.

The requirements to address CECs apply to any site currently undergoing remediation in NJ and significantly to sites that have previously completed the remediation process if there is restricted use remediation –i.e., a site where there is a Deed Notice or engineering control in place.  For sites still in the remediation process, the Licensed Site Remediation Professional for the site is required to evaluate whether one or more of the CECs is a contaminant of concern at the site.  This can be done by evaluating evidence of potential use at the site (including reviewing the list of industries that may have used PFAS provided on the NJDEP update. If there was potential use sampling is required.  If a CEC is found at the site above the applicable standard, it may be treated as a new “case”.   The party conducting the remediation or the LSRP is required to notify the NJDEP hotline.  A separate case number will be assigned, and a new timeframe established just for the CEC.  The other contaminants at the site will still be addressed by the existing time frame.

Perhaps more significantly, for sites that have already been remediated but are subject to biennial reporting obligations according to a Deed Notice or Remedial Action Permit, evaluation of CECs is required at the next time a report is due to NJDEP.  The LSRP preparing the report is required to do the same evaluation of the potential for CECs to be present as if the site was still undergoing remediation.  If it is determined that CECs may be present, sampling will be necessary.  If CECs are present above a standard, further investigation and remediation will be necessary.  At sites where there was unrestricted use remediation, CECs are to be evaluated at the next triggering event.

It is not clear from the guidance how remediation of CECs if present will be addressed.  The technologies to investigate and remediate the contaminants is not certain, and PFAS compounds are difficult to sample and analyze.  An LSRP may be able to conclude that a remedy already in place is protective of human health and the environment and no further remediation is needed; however, this is far from clear and can only be determined on a site-by-site basis.  Also, PFAS compounds are very widespread and may be found at a site from upwind airborne distribution.

Parties with ongoing compliance obligations at a remediated site need to understand that a CEC evaluation will be part of the next site review.  Parties at sites undergoing remediation need to recognize that CECs must be evaluated before remediation is complete.  If CECs are present, responsible parties and LSRPs will need to consider their options to address these contaminants, including the consideration of whether other parties are contributing to the costs of addressing these CECs.

As noted above, as scientific knowledge continues to advance, regulatory agencies are likely to identify other CECs.  Regulated parties should consider this in transacting contaminated sites, in developing remedial approaches, and in deciding whether to obtain environmental insurance.

Marijuana cultivation is, at its core, an agricultural endeavor, requiring large amounts of energy and water to nurture and grow the raw product. Through this series of blog posts, I have considered some of the environmental regulatory issues that may arise with respect to this growing industry. But what about the environmental impacts of marijuana cultivation? This blog post will explore – in general terms – some of the known environmental impacts of the recreational marijuana industry, drawing from the lessons learned in the states that have led the way.

Water Consumption

There is no way around it: marijuana is a plant, and plants need water to grow and thrive. Whether a cultivator operates an indoor or outdoor grow operation, the data is clear that water consumption is high in the industry. By some estimates, plants grown outdoors require at least one gallon per pound of marijuana per day during the growing season, which amounts to a total of roughly 150 gallons of water per pound of weed. For marijuana grown in an indoor setting, the rate of consumption is much, much higher.  In California, for example, indoor growers estimate that they use as much as 450 gallons of water per pound of marijuana grown. While those numbers compare favorably to other crops commonly grown in New York and New Jersey – such as strawberries and tomatoes – it is still anticipated that the recreational marijuana industry will make new, appreciable demands on local water supply systems. Accordingly, water utilities and market entrants alike can be expected to pay significant attention to a proposed cultivator’s expected water use and the local water system’s firm capacity to ensure proper siting.

Energy Use and Carbon Footprint

Based on current New Jersey’s medical cannabis cultivation trends, we can anticipate that much of the recreational cannabis cultivated in New Jersey and New York will be grown entirely indoors. That method can provide cultivators with a minute level of control over their growing environments, but it comes at a cost. Marijuana plants need a lot of sunlight to thrive, meaning that indoor growing options must resort to intense artificial light to replicate sunshine, as well as sophisticated environmental control systems, which promote adequate air circulation, temperature and humidity control, and ensure appropriate carbon-dioxide levels to accelerate plant growth. These systems generally require significant amounts of electricity or natural gas to operate. Given the prevalence of fossil-fuel-based electric generation, this leads to a large carbon footprint. Moreover, the introduction of additional carbon dioxide to promote photosynthesis accounts for as much as 25% of the carbon emissions from indoor operations, further enlarging the industry’s carbon footprint. That said, New York and New Jersey produce significant levels of electricity from renewable sources, with both states having committed to expanding those levels over time. In addition, the industry writ large is aware of its carbon footprint and has begun exploring the use of LED grow lights and other, more ecologically conscious means of environmental control. Given that, by some estimates, the energy costs of environmental control systems can account for roughly 60% of the cannabis industry’s carbon footprint, there is significant room for progress in that regard.

While it may be surprising to some, marijuana cultivation – if not done carefully – can create negative environmental impacts. Many of these impacts are likely to be addressed as New York and New Jersey create the rules governing this new industry. Nevertheless, it is important to learn from those who went before us and work toward growing a sustainable industry, to the extent feasible, from the ground up.

Significant revisions to the remediation standards (N.J.A.C. 7-26D) were adopted by the New Jersey Department of Environmental Protection (NJDEP) on May 17, 2021. The rule includes:

  • A six-month phase-in period ending on November 17, 2021, except when the numeric standard has decreased by more than an order of magnitude.
  • Impact to Groundwater, Soil Leachate, and Vapor Intrusion/Indoor Air screening criteria are now legally enforceable standards rather than screening levels.
  • Two exposure pathways for the Direct Contact Soil Remediation Standards have been developed: Ingestion-Dermal and Inhalation. As before, the most stringent standard must still be applied, but consideration of both exposure pathways is now required.
  • Formal standards have been promulgated to include soil and soil leachate for migration to groundwater, indoor air, and groundwater, in place of interim standards.
  • “Residential” and “non-residential” uses are now defined, adding more certainty for risk assessment.
  • Practitioners should keep in mind that the new Remediation Standards may form the basis for regulatory or even mandatory time frame extensions.

Important revisions were also made to the actual numerical Soil Remediation Standards. Several previously unregulated compounds were added and more conservative standards for several compounds were developed for both residential and non-residential soil exposure pathways, while some compounds were completely removed from regulation. As stated above, where a standard was lowered by an Order of Magnitude, the new standard is not subject to the phase-in period outlined in the rule. This requires immediate revaluation of ongoing remediation projects, since the remediation scope could be drastically altered midstream, or for sites where a Remedial Action Permit is in place. One compound that may trigger re-openers of completed remediations, particularly for gasoline storage sites, is the inhalation standard for ethylbenzene for both residential and non-residential scenarios, where the standards decreased by more than 2 orders of magnitude.

In addition to the revisions to the Remediation Standards, NJDEP also revised the Vapor Intrusion Guidance and released the Alternate Remediation Technical Guidance for both soil exposure pathways and the pathways for migration to groundwater and vapor intrusion.

  • The VIG was updated to include revised vapor intrusion screening levels for groundwater and soil gas in addition to the promulgation of enforceable indoor air standards. Again, several compounds have lower screening levels, screening levels for some compounds are less stringent and several were deleted from regulation altogether. Changes to these screening levels have implications for which contaminants of concern will initiate a vapor intrusion investigation and determine whether a subsurface pathway to indoor air is present.
  • The new methods and guidance for calculating Alternative Remediation Standards using a risk-based approach may alleviate the necessity to implement engineering controls, which could, in some circumstances, eliminate the long-term financial and inspection obligations associated with Remedial Action Permits.

NJDEP has created a new web page for information about the new Remediation Standards (https://www.nj.gov/dep/srp/guidance/rs/). It includes the new rule, proposal and adoption packages, phase-in and order of magnitude guidance, basis and background documents, and guidance documents for developing Alternative Remediation Standards.