News / Blog
Businesses face not only economic uncertainties during the COVID-19 crisis, but also an environmental landscape filled with unknowns- and potential pitfalls.
The New Jersey Department of Environmental Protection (NJDEP) recently proposed three (3) sweeping changes to the current state environmental regulatory scheme: (1) a rule proposal to begin regulating “forever chemicals”; 2) a policy to make climate resilience a primary consideration for DEP permits and approvals; and 3) an initiative to aggressively pursue natural resource damage cases. The problem here is that while the basis and need for each of these initiatives are well articulated, it is unclear when, if, and how these initiatives can be implemented.
The most immediate and dramatic initiative, however, is the rule proposal regarding the regulation of “forever chemicals.” In April 2020, NJDEP proposed regulating PFOA (perfluorooctanoic acid) and PFOS (perfluorooctanesulfonic acid)- two contaminants that belong to the PFAS family of “forever chemicals.” (Referred to “forever chemicals” because they do not degrade.) PFAS are toxic chemicals known to cause significant health conditions, such as cancer. Although the NJDEP’s rule proposal will take at least 1 -2 years to fully implement, the remediation community is nonetheless addressing this issue (especially where there is a threat to drinking water) as if the proposal is final. Without federal regulations regulating PFAS, and without NJDEP’s regulations, parties are grappling to understand the health risks of PFAS and the most cost-effective strategies to remediate these contaminants. The practical impacts of this rule proposal are significant. It could mean, for example, that years (or decades) after a property owner has completed a multi-year remediation, he/she could now be ordered to re-open the cleanup to address this (new) thorny and extremely expensive PFAS issue. If Buyers were skittish about purchasing commercial property now, this added concern about regulating PFAS certainly will not help the commercial real estate market in this COVID-19 era.
But this is not the only area of regulatory uncertainty. Recently, Gov. Murphy unveiled the state’s Energy Master Plan- designed to achieve the Administration’s goal of 100 percent clean energy by 2050. Part of this plan is to make climate resilience a primary consideration for DEP permits and approvals. While specifics of the plan are vague, the message is clear: Businesses should begin assessing how or if their operations can meet future “climate change” regulations. Unspoken, however, is the real possibility that businesses may not be able to meet these high standards.
In another dramatic initiative, the Murphy administration has signaled its intention to “aggressively pursue natural resource damage cases and ensure settlement funds remediate local impacts.” While the goal of the policy is sound (polluters should pay compensation for the damage done to the environment), the implementation of the policy may be tricky. Who would the state sue for compensation? The present owner who did not cause the prior contamination, or the prior owner who is no longer in business? The spectre of possible NRD litigation with the state will hurt the marketing of commercial properties – especially in older industrial centers.
How these three (3) initiatives will ultimately be implemented (and its impact on developers, owners of commercial properties, and manufacturing and assembling businesses in the state) remains to be seen; but these great unknowns are yet another challenge that nevertheless must be confronted in the age of COVID-19.
To learn more, contact Alan S. Ashkinaze, an environmental attorney specializing in all areas of environmental remediation, “Brownfields” redevelopment, permitting, compliance, and enforcement.
