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.

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.