What NJ's Green Remediation Guidance Means For Cleanups

*This article was originally published on Law360
Costs to clean up environmentally affected real estate have continued to increase. A variety of factors have caused this trend, including listing of new contaminants, enhanced focus on contamination pathways like vapor intrusion, and changed circumstances caused by infrastructure challenges from shifting weather patterns and greater population density.

All these factors pose risks to parties fulfilling cleanup obligations. And the trend of costlier environmental remediation will continue as states begin to focus energy and attention on the use of green and sustainable technologies when implementing remedies.

On Sept. 20, the New Jersey Department of Environmental Protection’s Contaminated Site Remediation and Redevelopment Program, or CSPP, published new administrative guidance promoting the use of green and sustainable remediation techniques in New Jersey state-led cleanups.[1]

The guidance shows how New Jersey regulators are focused on a holistic approach to remediation that addresses cleanup, environmental justice, sustainability and resilience. Below, we will break down what is in the guidance, and why the regulated community should keep a close eye on what’s happening in New Jersey.

New Jersey Environmental Justice Background

The U.S. Environmental Protection Agency defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”

At the federal level, the Biden administration has deployed a “whole of government” approach to advance EJ, with separate major policy pushes in enforcement and compliance, regulation, technical research, and community outreach.

State-level developments are, to some degree, clustered in “blue” states, with New Jersey at the forefront. New Jersey EJ regulations, the final version of which was announced in April, have the potential to significantly limit future development or permit renewal in New Jersey EJ communities, by imposing more stringent requirements to secure most environmental permits.

Communities are classified as “overburdened” in EJ parlance if “at least 35 percent of the households qualify as low-income”; “where at least 40 percent … identify as minority or as members of a State-recognized tribal community”; or where “at least 40 percent of the households have limited English proficiency,” as identified through New Jersey’s environmental justice mapping tool, EJMAP.

Where certain classes of facilities, like incinerators or other major sources of air pollution, seek to locate in overburdened communities, regulators employ a heightened level of scrutiny — potentially including submission of an environmental justice impact statement, consideration of which could result in permit denial.

What’s in the Guidance

Environmental cleanup projects are often long-term, resource-intensive efforts that can impose significant short-term impacts on involved communities. Far too frequently, areas that were heavily industrialized decades ago have been recast as parts of, or surrounded by, dense residential communities.

For people living in these communities, even if long-term benefits are understood, short-term disruptions posed by cleanups can cause significant stress.

New Jersey’s new CSPP guidance is separate from the EJ-focused permitting reforms outlined above. The new guidance incorporates a focus on green and sustainable program implementation during site environmental cleanups — which can serve to mitigate some community concerns, futureproof cleanups against climate-related issues and address ancillary community issues at potentially little expense.

NJDEP’s guidance builds on the EPA’s Principles for Greener Cleanups.[2] Guidance highlights include:

  • When remediation occurs in an environmentally overburdened community, the remediating party should “should develop an understanding of the current environmental stressors, consider partnering with local stakeholders, and help address environmental justice concerns.” This aspirational goal avoids both governance questions — like whether these considerations are statutorily required — as well as technical cumulative risk questions, which are likewise challenging. Intellectually, the guidance employs increased scrutiny for sites undergoing cleanups that are somewhat similar to those at other facilities with the potential to affect environmental conditions in a neighborhood.
  • Remediating parties should work to minimize the overall environmental effects of remediation activities by prioritizing use of renewable energy and water-efficient remediation methods. These could include contracting to use solar, wind, biomass or biogas power sources.
  • Remediating parties should implement climate change vulnerability assessments. Where possible, remediating parties should use “cooling strategies such as green open spaces, green infrastructure, and tree canopy development on urban brownfield redevelopment projects.” The guidance’s focus on green infrastructure — and particularly, its focus on tree canopy issues — is in line with the increased focus on these issues nationwide.
  • Remediating parties should prioritize the use of clean diesel in construction equipment and minimize vehicle idling where possible, to minimize remediation-related emissions.

What’s Next

At present, NJDEP’s administrative guidance is voluntary. Nevertheless, the guidance provides a lens into future expectations of state regulators, and offers another tool for community groups closely watching environmental remediations in their neighborhoods.

NJDEP’s guidance stresses that regulators — at least in New Jersey — are focused on holistically addressing problems faced by remediation, including the environmental impact of remediation activities themselves, as well as their long-term sustainability.

While green and sustainable processes are a worthy goal, they can create complexity in designing and implementing remedies that have an impact on both the schedule and cost of the overall remedy. Such processes are sometimes not as effective as more traditional remedies — a balance that must be weighed when considering pursuit of such options.

That complexity can often be seen with community groups who want to see a maximum remediation, while also seeking green and sustainable practices —all while minimizing the community impact of the remedy. These often-contradictory goals must be managed at both the technical and political levels to ensure a successful remedy.

Within the guidance, sophisticated parties will see a mix of items, some of which are engineering best practices — e.g., minimizing water usage and vehicle idling — and others of which represent a wish list of progressive state regulators — e.g., promoting increased tree cover and purchasing green power.

While many site remediations are already costly, the guidance provides a snapshot of one state’s views of how cleanup, EJ, sustainability and resilience can come together and increase the cost even further.

From a regulated entity’s standpoint, this new guidance should constitute early notice that sustainability in remediation is only going to become more prominent and must be considered. The savvy practitioner will work with regulators and community groups early on to see what green and sustainable practices can be incorporated into a remedial plan without much difficulty.

By bringing everyone together early, the possibility of useful actions that do not fundamentally alter the financials of a remediation can be implemented — and more radical options will not be forced upon a remediation later.

*This article was originally published by Law360. (Subscription required)

[1] New Jersey Department of Environmental Protection (NJDEP)’s Contaminated Site Remediation and Redevelopment Program (CSPP), Administrative Guidance for Green, Sustainable, and Resilient Remediation, https://www.nj.gov/dep/srp/guidance/srra/gsr_remediation_guidance.pdf

[2] U.S. Environmental Protection Agency, EPA Principles for Greener Cleanups, https://www.epa.gov/greenercleanups/epa-principles-greener-cleanups.


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