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 ( 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.

The State of New Jersey issued a press release last month¹ that urges state-operated businesses to begin preparations now for a single-use plastics ban, which becomes effective on May 4, 2022.  The ban will include single-use carryout bags and polystyrene foam food-service products in stores and food-service businesses.  Starting Nov. 4, 2021, food service businesses will only be allowed to provide single-use plastic straws by customer request.

On November 4, 2020, Governor Murphy signed into law P.L. 2020, c117, which prohibits single-use plastic carryout bags and single-use paper carryout bags in grocery stores that occupy at least 2,500 square feet.  The new law aims to reduce waste and pollution and protect New Jersey’s environment.  The law requires businesses that sell or provide reusable bags that meet the following criteria:

  • Made of polypropylene fabric, PET non-woven fabric, nylon, cloth, hemp product, or other washable fabric; and
  • Constructed with stitched handles; and
  • Designed and manufactured for multiple reuses.

Additional single-use products that will be exempt from the ban for an additional two years, until May 4, 2024, include:

  • Disposable, long-handled polystyrene foam soda spoons when required and used for thick drinks;
  • Portion cups of two ounces or less, if used for hot foods or foods requiring lids;
  • Meat and fish trays for raw or butchered meat, including poultry, or fish; and
  • Any food products that are pre-packaged by the manufacturer with a polystyrene foam food-service product.

New Jersey has joined several other states with plastic bag bans.  Northeastern states with plastic bag bans include New York, Connecticut, Delaware, Vermont, and Maine.  Western states with similar bans include Hawaii, California, and Oregon.  Finally, several major cities also have their own plastic bag regulations.

All these bans have a common theme of relieving pressure on landfills by reducing waste and mitigating associated environmental impacts from bag manufacturing and litter in oceans, lakes, forests, and their wildlife inhabitants.

While many in New Jersey are accustomed to bringing reusable bags to the supermarket, the new law presents new challenges to the food-service industry.  In particular, since the COVID-19 lockdowns last year, many people have enjoyed home delivery of meals packaged in the very products that will no longer be available to businesses or the public under the single-use plastics ban.  To help New Jersey businesses prepare for implementation of the new law, the New Jersey Business Action Center (NJBAC) and the NJDEP provide online resources (see

¹ NJDEP | News Release | New Jersey’s Ban on Single-Use Plastic Products Takes Effect in One Year

I was once asked this by a friend.  “I’d like to buy a vacation home that would stay in my family for several generations.  You’re an environmental lawyer, where can I buy a vacation on or near a Jersey Shore beach that won’t be affected by climate change?”  My answer was simple.  “You probably can’t.  Think instead about a home on a hill in the Berkshires.”  Sometime later, I shared with him the remarks of a public official in Florida who noted that sea rise was cutting off some waterfront homes from the Intracoastal Waterway because their boats could no longer clear certain bridges and the town lacked the resources to raise them.  “Do you think that will affect the mortgageability of those properties?”

My friend thought that the financial impact of climate change was years off.  It’s not and, unlike the prior administration in Washington, the current administration knows that and is acting now to address climate change.  On May 20, 2021, President Biden signed the Executive Order on Climate-Related Financial Risk.  It recognizes that the “intensifying impacts of climate change present physical risk to assets, publicly traded securities, private investments, and companies …”  This administration wants the Federal government’s component departments, etc., to “account for and measure” climate change risk “by appropriately prioritizing Federal investments and conducting prudent fiscal management.”  The order also requires a Federal strategy regarding “financial needs associated with achieving net-zero greenhouse gas emissions for the U.S. economy no later than 2050 …”

Of course, the impact of this order on our society cannot be fully understood now.  However, a Federal mandate to determine the extent of climate-related financial risk, quantify it, and disseminate it publicly is going to affect financial institutions and their customers.  It is information that will be factored into lending decisions and therefore, into commercial and personal real estate acquisitions, even if a vacation home is in the Berkshires.

New York and New Jersey are just beginning to grapple with the regulatory controls that will be placed on the states’ budding cannabis industries. Questions arise as to how each state will regulate the industry from an environmental perspective. Over the last few weeks, I have presented blog posts discussing generally the kinds of issues that may come up. Continuing with that series on the cannabis environment, this blog post will briefly consider potential clean air regulations that may be relevant in the cannabis context.

Air Permits

It may come as a surprise to many industry entrants, but air permits are not just required for businesses with towering smokestacks. Under the New Jersey Air Pollution Control Act (“NJAPCA”) and the New York Environmental Conservation Law (“NYECL”), many smaller enterprises require air permits. For example, air permits are required to businesses employing certain kinds of engines for producing electricity (with the exception of certain emergency generators). In addition, boilers, furnaces, and certain kinds of venting equipment can all require air permits. As such, cannabis producers should anticipate the need to apply for and obtain these permits in order to comply with the federal Clean Air Act, State law, and local ordinances, particularly given the need to control odors in outdoor ambient air and to ensure that volatile organic compounds and the solvents used in processing are not emitted in excess of allowable levels.

Odor Control

This may not come as much of a surprise, but cannabis cultivation and processing creates odors. Cannabis plants emit strong-smelling volatile organic compounds (“VOCs”), including terpenes and a compound known as 321MBT, which are often at their strongest while the cannabis plant flowers and while the plant is being processed. Terpenes have been thought to be responsible for the “skunky” aroma commonly associated with marijuana, though recent research suggests that the culprit is actually 321MBT. While the release of those particular VOCs may not necessarily “contaminate” the air in the colloquial sense, it is important to understand that under the NJAPCA and NYECL, odors are a form of pollution subject to regulatory controls. In similar spirit, many of the states to have promulgated environmentally focused regulations on the cannabis industry require installation of odor mitigation systems. Indeed, some states require that plans for these systems be approved in advance by the appropriate State authority. Likewise, we are already seeing a trend among New Jersey municipalities requiring that cannabis establishments install odor mitigation equipment. For example, the City of Bayonne requires installation of “a ventilation system with carbon filters.” That requirement is typical in the states and municipalities to have addressed the issue. Fortunately for entrepreneurs thinking about entering the business, the technology is readily available and is already a well-established form of VOC filtration. In fact, carbon filtration is thought to be the best (and seems to be the most popular) form of VOC emission control for the cannabis industry. That said, there are emerging emission control techniques, which include installation of mineral filters, bio filters (such as wood chips), carbon scrubbing, and negative air pressure systems, as well as use of ultraviolet germicidal irradiation to attend to indoor air quality at cannabis producing facilities. A cannabis business will want to carefully consider the available options in light of state and local requirements in order to select the odor control mechanisms that will best protect the business and local air quality.

VOCs & Solvents

Cannabis producers should carefully consider not only the right odor control mechanism for their business and location, but also how to best manage their cannabinoid extraction practices. As noted above, VOC emissions tend to be at their highest during, among other times, the processing phase. And although odors are not necessarily contaminants for purposes of New York and New Jersey’s environmental laws, the VOCs that cause them may be, and the solvents used in the extraction process may be as well (such as, for example, hydrocarbon-based solvents). Producers will want to carefully evaluate their extraction practices to ensure that fugitive or accidental emissions of VOCs and solvents are minimized or avoided entirely. Cannabis producers will want to keep an especially close eye on how they handle, store, and dispose of solvents. Solvent-based contamination is a common problem in New York and New Jersey. And make no mistake – solvents are already strictly regulated in the environmental realm due, in part, to the sheer volume of solvent-related contaminated sites in each of those states. As such, industry groups recommend that cannabis producers carefully consider how to implement cannabinoid extraction practices in a manner that appropriately manages solvents, such as, for example, by employing closed-loop cannabinoid extraction techniques like condensers or cold traps. Some industry groups advise that a better alternative is to avoid hazardous solvents like butane and propane in favor of more eco-friendly options, like the use of supercritical carbon dioxide. No matter what practices a producer chooses to adopt for their cannabinoid extraction, it is very important that those practices be carefully managed to avoid problems down the road.

Compliance with federal, state and local clean air and odor control regulations present potential challenges for cannabis cultivators, and the potential consequences of noncompliance can suck the air out of a room for a cannabis cultivator or processor. Market entrants will want to carefully consider how these regulations will apply to their business and how best to adapt their cultivation and production practices in order to ensure that their business will not go up in smoke.

We call to your attention NJDEP’s recently proposed amendments to its air regulations which raise questions as to whether fumigation and/or pesticide application operations, such as in office buildings, are to be subject to the detailed requirements of air permitting. Commercial building owners should review these proposed rules with their pesticide and fumigation contractors. If applicable, these rules may require building owners and/or commercial pesticide applicators to obtain an air permit, meet strict reporting requirements, and even install stacks to vent the fumigants. The comment period for this proposal has been extended to June 1, 2021.

By way of background, on March 1, 2021, NJDEP published the proposed rule in the New Jersey Register. The impetus of this rule proposal appears to have been substances used in industrial fumigation operations, including warehouses and commodity storage facilities located in Newark, Elizabeth, and Camden. Specifically, NJDEP proposes to add certain fumigants and other air contaminants to the list of hazardous air pollutants. Regarding fumigation, the proposed rule would require permitting for any fumigation of a commodity or industrial structure that has the potential to emit at a rate greater than 0.1 pounds per hour (45.4 grams per hour), except for certain emergency fumigation operations.

However, the proposed rule appears to apply more broadly and can be read to apply even to commercial fumigation applications using any regulated pesticide or fumigant. Notwithstanding the listing of specific chemical compounds as toxic substances, the term “fumigant” is proposed to be generally defined as “a chemical registered with the EPA as a pesticide under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). The proposed rule defines Group III toxics as “fumigants, including but not limited to” methyl bromide, sulfuryl fluoride, and phosphine. This definition appears to include all fumigants, not just the three specific fumigants of concern, as regulated Group III toxics. As proposed, Group III toxics if emitted at a rate of 45.4 grams per hour, are subject to air permitting requirements. Further, the subchapter governing hazardous air pollutants and toxins would require that emissions to the outdoor atmosphere would be authorized only through a vertical stack that extends above the highest point of the container, roofline, or structure. A health risk assessment for that operation would have to be performed in advance of any fumigation.

The language of the rule raises significant enough questions that it should be reviewed with your commercial pesticide or fumigation professional. Questions such as the emission rate of the pesticide or fumigant used, and its potential to emit into the outdoor atmosphere, should be asked. If there are comments or concerns about the proposal, they should be addressed to the NJDEP by June 1st using this link or via mail to:

Alice A. Previte, Esq.
ATTN: DEP Docket No. 02-21-01
NJ Department of Environmental Protection
Office of Legal Affairs
Mail Code 401-04L; PO Box 402
401 East State Street, 7th Floor
Trenton, NJ 08625-0402

Interested or potentially impacted stakeholders are encouraged to participate in the comment period and should consider evaluating its implications, if enacted in current form, with their advisors and contractors.

I recently blogged about the various kinds of environmental regulatory issues I anticipate will emerge in New York and New Jersey as each state’s cannabis industry blooms. In that post, which you can find here, I identified cannabis waste disposal as a complex environmental issue that each state will be expected to address as the industries develop. Cannabis cultivators generate significant amounts of organic and inorganic waste, which includes plant waste, growing media, and other agricultural material (not to mention hazardous wastes in the form of volatile organic compounds). In this post, I will dive a little deeper into the issue of cannabis plant waste disposal and discuss some of the possibilities.

50/50 Plant Waste Rule

The states leading the charge on recreational cannabis cultivation have generally addressed the issue of plant waste disposal and have by and large coalesced around the so-called 50/50 rule, whereby marijuana plant waste must be made unusable and unrecognizable, and then disposed of as solid waste. However, each cannabis waste generator must take the resulting mash and mix it with other solid waste such that each generator’s solid waste consists of no more than fifty percent cannabis waste. On its face, such a rule seems sensible, but critics point out that the 50/50 rule is flawed in that it forces organic wastes – which could otherwise be put to beneficial reuse – to be landfilled, which itself creates negative environmental impacts. Critics have also suggested that the 50/50 rule is transportation-centric, relying heavily on carbon-emitting waste disposal infrastructure and that the rule encourages cannabis businesses to produce unnecessary levels of non-cannabis solid waste in order to meet the fifty-percent threshold.

Composting and Anaerobic Digestion

Although less common than the 50/50 rule, states have been coming around to the idea of allowing businesses to dispose of marijuana plant waste outside of the solid waste stream. Massachusetts, for example, allows cannabis businesses to dispose of marijuana plant waste by mixing it with other organic matter, such as food waste, soil, mulch, manure, and growing media, and to then dispose of that waste at offsite composting or anaerobic digesting facilities. Alternatively, Massachusetts-based cannabis businesses are permitted to compost marijuana plant material on-site, though permissive on-site composting appears to be much more limited. Advocates for such methods point out that composting or anaerobic digestion of cannabis plant matter would result in effectively a complete diversion from landfilling the waste and ensure that the plant matter can be put to beneficial reuse.

Notably, these alternative means of disposal present workable options for New York and New Jersey. Both states have recently passed food waste recycling acts that will require certain businesses to dispose of food waste through authorized recycling facilities, which in both states, include off-site composting and/or anaerobic digestion. Permitting cannabis-waste generators to dispose of their plant waste in the same manner as food waste – and perhaps mixed with food waste, if necessary – would seemingly promote each state’s environmental policy goals underlying their respective food waste acts and provide cannabis-waste generators with an environmentally sound means to dispose of their plant matter.

New York and New Jersey are likely a long way away from fully hashing out how to handle marijuana plant waste, but as new developments arise, we will keep an eye out.

This week, there are two cases before the Supreme Court of the United States that environmental and energy attorneys and other industry stakeholders should be watching closely. The cases cover a broad range of concerns – including the CERCLA statute of limitation, eminent domain, sovereign immunity, and the 11th Amendment – and are as follows:

In Territory of Guam v United States (Case number 20-382) – Guam wants the U.S. Navy to contribute to a $160M landfill cleanup. In 2004, Guam and the United States reached a Consent Decree under the Clean Water Act over the contaminated Ordot Dump, which was leaching waste into nearby waterways. The former municipal dump/landfill had been owned by the U.S. Navy.  Guam filed suit under CERCLA to recover the $160M in costs it had incurred. The U.S Court of Appeals for the District of Columbia said the 2017 suit for contribution under CERCLA was too late as the 2004 Settlement started the three (3) year statute of limitations under Section 113 of CERCLA. Guam argued in its briefs that the 2004 Consent Decree made no reference to CERCLA and that the D.C Circuit incorrectly held that the three-year statute of limitations was triggered. Guam argues that it is seeking to recover costs under Section 107(a) of CERCLA, which provides for parties to recover remediation costs from other responsible parties within six years of the initiation of a remedial action. Guam argues that the “initiation of the remedial action began in 2013 after the landfill was closed and thus their contribution action is within the six-year statute of limitation provided in Section 107(a) of CERCLA.

This case is being closely watched because if the Supreme Court accepts the federal government’s argument, it could deter the future settlement of environmental CERCLA claims if the three-year time limit is found to apply in cases where parties are seeking contribution for remediation costs from other responsible parties.

In PennEast Pipeline Co. LLC v State of New Jersey et al. – (case number 19-1039), the developer of the $1B PennEast pipeline requested the US Supreme Court to overturn the Third Circuit’s prior holding the developer can’t seize the New Jersey owned land for the pipeline project. In a September 2019 decision, the U. S Court of Appeals for the Third Circuit held that a 1938 law called the Natural Gas Act (15 USCA 717(f)) doesn’t allow for the developer to condemn land controlled by New Jersey. The Federal Energy Regulatory Commission had granted the developer eminent domain authority to take the property. New Jersey argues that its 11th Amendment sovereign immunity protects it from condemnation suits by private companies. The developer also argued that the Third Circuit didn’t have jurisdiction to even consider the case. This jurisdictional issue will be one of the issues decided by the Supreme Court. New Jersey argues that the lower court had proper jurisdiction to conclude that the Constitution doesn’t allow private companies to sue under the NGA and, moreover, that the NGA doesn’t provide authority for companies to sue states under the NGA.

This case is being watched for a variety of reasons, including the federal government’s powers to condemn property under its eminent domain authority versus the state’s 11th Amendment sovereign immunity protections from federal interference.

The Appellate Division’s recent unpublished decision in Meyer v. Constantinou (April 16, 2021; Dkt. No. A-1793-18) affirmed the exclusion of an environmental expert report as a net opinion for ignoring key facts without sufficient reason. The decision also affirmed the trial court’s finding that dry cleaners are not abnormally dangerous and therefore not subject to strict liability.

The case involved a disputed source of solvent contamination. Specifically, a gas station/auto repair shop discovered PCE contamination in the soil near a leaking waste oil tank. PCE is a solvent used for dry-cleaning, auto repair, and many other things. The gas station’s LSRP attributed the PCE to the dry-cleaning facility located approximately six feet from the waste oil tank excavation. The gas station initiated an action against the dry cleaner on various theories of liability relating to the PCE contamination, amazingly failed to establish liability at trial, and appealed.

Expert Opinions Must Be Supported by Facts

One reason the gas station lost at trial is that its expert report was excluded as net opinion. Expert testimony is inadmissible if it is founded on speculation rather than factual evidence or data. The gas station’s expert report concluded that the dry-cleaner spilled the PCE based on a map showing the highest PCE concentrations near the dry-cleaner and decreasing concentrations towards the gas station. However, the PCE concentrations were more randomly distributed and the LSRP had to inexplicably ignore some samples to make that argument. The expert report also stated that the gas station did not use solvents and, therefore, the PCE must have come from the dry cleaners. That opinion ignored the fact that receipts produced in discovery established that the auto shop used spray cans of solvents. Failure to account for facts does not render an opinion inadmissible, so long as sufficient reasons are set forth to logically support the opinion. Here, the logical support was missing. The remaining conclusions in the report were merely assumptions regarding dry cleaning operations, wholly unsupported by facts or data. Accordingly, the report was excluded, dooming the gas station’s case.

In addition to reminding litigants that expert reports must be grounded in facts, the case also illustrates the risk of retaining your LSRP as a litigation expert. Credibility issues arise when experts defend their own questionable decisions. In this case, the LSRP ignored DEP’s repeated demands to conduct a preliminary assessment which could have helped eliminate the gas station as a potential source of contamination. The expert’s inability to address that and other aspects of the remediation supported the judge’s determination that the expert lacked credibility. An independent expert would have avoided that issue, and likely would have also taken a more critical eye to the LSRP’s prior data collection.

Dry Cleaning Is Not Abnormally Dangerous

The decision also affirmed the trial court’s determination that dry-cleaning is not abnormally dangerous. The harm caused by abnormally dangerous activities is subject to strict liability, which is liability arising without regard to fault. The gas station owners argued that dry-cleaning is abnormally dangerous, and therefore the business owner was personally liable for PCE contamination. The Appellate Division disagreed. In evaluating the six factors used to determine whether an activity is abnormally dangerous, the Court found that dry cleaning is common, useful, and appropriately placed in a strip mall. Somewhat confusingly, the last three factors (high degree of risk, likelihood of great harm, and inability to eliminate risk with reasonable care) were conflated into a finding that the likelihood of harm “was not great” because of precautions taken regarding PCE. By linking the application of strict liability to the particular manner in which the dry cleaner operated, the Court left the door open to fact development regarding future strict liability claims against dry cleaners.

With the distribution of vaccines to fight the COVID-19 pandemic underway, New Jersey is starting to see the light at the end of the tunnel.  At some point, the public health emergency will end, and the process of government will go back to normal.    Businesses and the regulated community, in general, need to start planning now for the resumption of the numerous environmental law and regulatory deadlines suspended during the pandemic.

Less than two months after declaring a public health emergency, on May 2, 2020, Governor Murphy issued Executive Order 136 which extended statutory deadlines governing various environmental laws.   Those extensions dealt with everything from the timeframes governing NJDEP review under certain statutes, such as the 90-Day Review Law, to extending deadlines for submitting reports required under the statute.   Following the Governor’s lead, the Commissioner of NJDEP followed suit by issuing a series of Administrative Orders, as well as temporary rule waivers and modifications allowing regulatory timeframes to be extended or, in some cases, suspended until after the public health emergency is lifted by the Governor.   Most recently, on March 1, 2021, Acting Commissioner LaTourette issued a Notice of Rulemaking/Modification/Suspension which extended submission deadlines under the Administrative Requirements for the Remediation of Contaminated Sites, the Technical Requirements for Site Remediation, and the Heating Oil Tank System Remediation Rules.

At some point, the Governor will declare that the public health emergency is over.  When that occurs, suspended deadlines governed by EO 136 will resume, or have a short window to resume.   Many of the rules that were administratively suspended or extended will resume their normal time clock.  It is not too early to begin evaluating the landscape of your regulatory compliance deadlines and to start planning to perform the work necessary to meet those deadlines once the emergency is lifted.   For example, any site remediation deadlines need to be evaluated with your site remediation professional to anticipate the work necessary and, more importantly, the time frame to complete that work, so that you are not in violation of the law when the emergency has ended.

This is particularly true for newly regulated activities required to be implemented during the pandemic.  For example, on January 21, 2020, Governor Murphy signed PL. 2019, c. 397, otherwise known as the “Dirty Dirt Law,” which required any business engaging in soil and fill recycling services without an A-901 license to submit a registration form no later than April 20, 2020, and a validly and administratively complete application for a soil and fill A-901 license no later than October 19, 2020.  All business that did not have a valid A-901 or registration was prohibited under the Dirty Dirt Law after July 20, 2020.   EO 136 extended these deadlines the length of the public health emergency plus 60 days.   NJDEP understandingly has not had time to adopt regulations implementing the Dirty Dirt Law, which was enacted less than two months before the public health emergency.  There are questions of the scope of this law which had been raised at the beginning of the pandemic which still need to be addressed by NJDEP.   It is unclear whether NJDEP will provide any of this clarity prior to the end of the pandemic.  However, it is clear that these deadlines will be reinstated at the end of the pandemic.  Those engaging in soil and fill recycling, which has significant policy implementation questions, should begin preparing now, and engaging with the NJDEP to make sure that the resolution of these policy considerations remains a priority with NJDEP prior to the deadlines in the statute resuming.

It is great news that the pandemic is on track to end.  However, you need to be aware that when this pandemic ends, your business may be up against environmental regulatory compliance deadlines very quickly.