The New Jersey Department of Environmental Protection (NJDEP) kicked off the week with publishing the long-anticipated, immediately effective Interim Soil Remediation Standards for four kinds of PFAS chemicals.  The following Q&A provides preliminary guidance on whether this might affect you and some helpful background information.

What does this mean for a New Jersey property undergoing remediation and/or subject to an open ISRA case?

As of October 17, 2022, any property in New Jersey that is undergoing remediation and/or subject to an open Industrial Site Remediation Act (ISRA) case and where sampling has uncovered  any of the regulated PFAS chemicals (ie., PFOA, PFOS, PFNA, and GenX) above their new applicable standard will have to remediate in accordance with the NJDEP Technical Regulations.

For each of those properties, we expect that the Licensed Site Remediation Professional (LSRP) of record will need to evaluate the likelihood of whether any of these four PFAS chemicals could be present in the soil and/or soil leachate.  That evaluation may result in the determination that a new soil investigation is now warranted, which could lead to a new soil remediation case.  This is especially possible for any property with an ongoing PFAS groundwater case (NJDEP established groundwater remediation standards for PFNA, PFOS, and PFOA a few years ago, but not GenX).

How do I know if there might be PFAS at the property?  Do I have to sample?

This can get tricky because there are a lot of potential sources of PFAS.  There are a few reasons for this.  First, these manmade chemicals are heavily engineered to have several unique properties that make them very attractive for use in many industries, manufacturing processes, and consumer products.  This means they have been in use on a global scale since the 1940s and 1950s.  Second, PFAS chemicals don’t naturally break down in the environment and are highly mobile, which means they are found practically everywhere.  Even Antarctica.  And especially New Jersey.

This means it can be easy for an LSRP or a buyer, lender, or insurer to find a reason to sample.  If the property has a history of any of the potential sources or uses in the chart below and there is a potential pathway to soil and/or groundwater, PFAS sampling may be warranted.  This list is not exhaustive, but it is a good starting point.  It is also not conclusive.  A close analysis of the facts is needed to evaluate each property’s PFAS risk profile.

At the end of the day, if you have an ongoing remediation and/or are under ISRA review, your LSRP will have to take the facts through the NJDEP site investigation regulations and guidance to evaluate whether sampling is necessary.  Your environmental attorney should be involved at each step of this analysis.

 

High Risk Sources Industries Consumer Products
  •   Industrial surfactants
  • Textiles
  • Cosmetics
  •   Fluoropolymer production
  • Metal plating, fabricators
  • Food packaging
  • Aqueous Fire-Fighting Foam (AFFF) manufacturing, training facilities
  • Electronics
  • Personal care products (sunscreen, dental floss)
  • Class B fire suppression systems, R&D labs
  • Semiconductor
  • Clothing
  • Military bases
  • Aerospace, automobile, aviation
  • Furniture, carpet
  •    Airports
  • Plastics
  • Cleaning products
  • Landfills, dumps
  •  Paper products
  • Teflon
  • Bulk petroleum facilities
  • Building and construction
  •   Scotchguard
  • Cable and wiring
  • Goretex

 

How about environmental diligence?  And my exit strategy in a few years?

First and foremost, prospective purchasers and their professionals should ensure that the scope of both their Phase I Environmental Site Assessment and their Preliminary Assessment (i.e., New Jersey’s version of a Phase I) include an evaluation of the potential for groundwater and soil impacts for PFNA, PFOA, PFOS, and GenX.

The decision of whether to conduct diligence sampling is driven by multiple factors and should be carefully considered with the guidance of an environmental consultant and environmental attorney knowledgeable about the nuances of each property’s unique PFAS risk profile in the context of the transaction under review, the business case for the deal, and the exit strategy for the property.

Properties with ongoing remediation and/or under ISRA review will of course involve a close look at PFAS, but also keep in mind questions that your lender, tenant, insurer, and future buyer may ask, especially after federal regulations become effective as early as 2023.  Diligence for construction or redevelopment projects involving offsite disposal of soils or groundwater should also take into consideration additional disposal costs and liability risks.

I think this might affect my deal, property, cleanup, and/or ISRA case.  What are the next steps? 

In most cases, the best next step is a call with your LSRP or environmental consultant, as well as your environmental attorney to evaluate your options.  Given the widespread historical and current uses of many PFAS chemicals, especially these four, it is easy to be overly cautious.

The number one rule here is to deal with the actual facts for the specific property – your professionals should be looking closely at the unique PFAS risk profile and thinking strategically about how to meet your business goals.  For example, just because there was a fire at the property doesn’t mean fire-fighting foam containing PFAS was used.  It is entirely possible that the fire was extinguished with good old-fashioned water.  Another example is metal plating, which is generally considered high risk for PFAS use, but not all plating operations are the same and many don’t use PFAS.

On the insurance front, while many carriers are increasingly insisting on excluding PFAS from coverage, the market is in flux and an insurance broker that specializes in environmental policies can be a valuable member of the risk management team.  Additionally, many existing policies do not have the PFAS exclusions and could help buttress the overall risk mitigation package.

How do I be PFAS smart?

PFAS liability is a serious issue that is not specific to New Jersey and is not going away.  In addition to the patchwork of regulations in many other states, the U.S. Environmental Protection Agency is steadily pursuing federal regulations slated to become effective as early as 2023.  There are a lot of moving pieces, with both legal and technological developments day to day, and the market is responding and evolving in kind.

In this brave new world, being PFAS smart essentially boils down to staying focused on the facts and the goals and creatively using the tools already available to the commercial real estate industry.

By the way, what is PFAS?

PFAS is short for “per- and polyfluoroalkyl substances” and is an umbrella terms that refers to a class of thousands of manmade chemicals that have several unique properties that make them especially attractive to use in many industries and consumer products.  Think Teflon, Scotchguard and Goretex.

PFAS are found throughout the global environment and in the blood of nearly 99% of the U.S. population.  They are nicknamed “Forever Chemicals” because they don’t naturally break down in the environment, which makes them very difficult and expensive to remove and remediate.

PFAS have been used on a global scale since the 1940s and 1950s and largely escaped any environmental regulation until certain toxicity studies became public through litigation in the late 1990s and early 2000s.  There are no enforceable federal remediation standards for any PFAS chemicals today, but the U.S. Environmental Protection Agency is steadily pursuing regulations that are expected to become effective as early as 2023.

What is GenX?

Previously thought to be safer than other PFAS, GenX was used as a substitute for PFOA after manufacturers voluntarily phased out production of PFOA and PFOS in the early- to mid-2000s. However, subsequent toxicity assessments, including those conducted by the U.S. Environmental Protection Agency (see U.S. EPA, Drinking Water Health Advisory for GenX Chemicals, June 2022), have found that GenX can be more toxic than PFOA.  Given that GenX is used in many industries including medical, automotive, electronics, aerospace, energy, telecommunications, chemical processing, and semiconductor, it is largely expected to be as ubiquitous in the environment as PFOA and other PFAS chemicals.

Why is it notable that GenX now has a remediation standard? 

While NJDEP established groundwater remediation standards for PFOA, PFOS, and PFNA a few years ago, this is the first time NJDEP is regulating GenX.  This means that, for the most part, no prior environmental audits, investigations, or remediations would have looked for, let alone addressed, potential impacts from GenX.  The new remediation standard makes GenX the ultimate x-factor in the commercial real estate world.

 

PFAS Interim Soil Remediation Standards

Compound CAS No. Soil Remediation Standard Ingestion-Dermal Residential (ppm) Soil Remediation Standard Ingestion-Dermal Nonresidential (ppm) Soil Remediation Standard Migration to Groundwater (ppm) Soil Leachate Remediation Standard Migration to Groundwater (ppb)
PFNA 375-95-1 0.047 0.67 Area of Concern/ Site-Specific 0.26
PFOA 335-67-1 0.13 1.8 Area of Concern/ Site-Specific 0.28
PFOS 1763-23-1 0.11 1.6 Area of Concern/ Site-Specific 0.26
GenX

13252-13-6,

62037-80-3

0.23 3.9 Area of Concern/ Site-Specific N/A

 

A very special thanks to the invaluable contributions from Inga Caldwell and Erin Palmer for this piece.

New Jersey has extended the deadline for businesses engaged in “soil and fill recycling services” to comply with key provisions of N.J.S.A. 13:1E-127, et seq., which was enacted on January 21, 2020 and is known as the ‘Dirty Dirt Law.’  The law requires businesses engaged in “soil and fill recycling services” to register as such and apply for the very strict and difficult-to-obtain A-901 license which was previously applicable only to waste haulers. Following confusion and controversy over the applicability of the Dirty Dirt Law, Governor Murphy signed Assembly Bill A4255 on July 5, 2022, extending the deadline for businesses to apply for the A-901 license.

The new deadline to apply for an A-901 license is no later than 30 days after the NJDEP adopts rules and regulations for the Dirty Dirt Law, which the NJDEP must implement by July 5, 2023. In a July 8, 2022 Compliance Advisory Update, NJDEP has taken the position that this extension of time applies only to businesses that registered in compliance with the law by filing a Soil and Fill Recycling Registration Form by July 14, 2022.  Businesses that failed to register by July 14, are ineligible for the extension and are required to cease regulated activities until they have filed a Soil and Fill Recycling Registration Form and an A-901 License Application.

New Jersey initially required A-901 licenses for waste haulers in an effort to counter the influence of organized crime in the industry, and the A-901 application process requires detailed information and background checks.  The Dirty Dirt Law extended this licensing requirement to businesses engaged in “soil and fill recycling services,” including “the collection, transportation, processing, brokering, storage, purchase, sale or disposition, or any combination thereof, of soil and fill recyclable materials.”

The law also expanded the definition of regulated fill brokers, to include persons engaged in the “provision of soil and fill recycling services” for direct or indirect compensation. The NJDEP has taken the position that Licensed Site Remediation Professionals and Certified Subsurface Evaluators who are remediating a contaminated site are exempt from the law’s definition of broker. However, during stakeholder meetings, the NJDEP has left open the possibility that environmental consultants, general contractors, and even developers may be considered fill brokers and be required to obtain A-901 licenses. The newly regulated community hopes that the regulations required to be promulgated by the NJDEP pursuant to Bill A4255 will clarify the issues raised during the stakeholder meetings.

Although the main objective of the Dirty Dirt Law is to prevent unscrupulous operators from covert dumping and sham recycling of contaminated soil and fill materials, the implementation of the law (so far) is incredibly broad in scope and has the potential to subject a wide range of businesses to stringent licensing requirements that not all businesses can meet. Registration requirements are already in effect. Potentially affected businesses must therefore remain attentive to developments and understand how the law applies to their operations.

Cole Schotz P.C.’s Environmental Attorneys are available to discuss any questions you may have about the Dirty Dirt Law or the A-901 License Application process.

On December 13th, the New Jersey Departments of Environmental Protection and Agriculture introduced a joint “Natural and Working Lands Strategy Scoping Document” as part of the State’s climate change strategy.

New Jersey has implemented a progressive and comprehensive climate change strategy over the past several years, including adopting a goal of reducing greenhouse gas emissions by 80% below 2006 levels by the year 2050 (the “80×50 Goal”). The newly issued Scoping Document focuses on “carbon sequestration” as a necessary component to achieving that goal. The document states that clean energy along is not enough to meet the 80×50 Goal “without the additional reduction of 6 to 10.8 million metric tons of CO2 emissions due to carbon sequestration.”

The Scoping Document focuses on implementing carbon capture and sequestration practices in New Jersey’s:

  • Forests
  • Grasslands
  • Wetlands
  • Agricultural Lands and Aquiculture
  • Developed Lands
  • Aquatic Resources and Habitat

Recommendations in the Scoping Document range from adopting new best management practices and identifying additional financial resources for stakeholders to implementing restoration and preservation programs and facilitating green infrastructure.

New Jersey’s Natural and Working Lands Strategy has the potential for wide-reaching impacts on many categories of stakeholder groups, including land developers, the farming and fishing industries, and urban organizations.

Comments on the Scoping Document are being accepted until February 11, 2022, at: https://nj.gov/dep/climatechange/mitigation-nwls.html?utm_medium=email&utm_source=govdelivery

The New York State Department of Environmental Conservation (NYSDEC) is updating its Petroleum Bulk Storage (PBS) and Chemical Bulk Storage (CBS) rules.   The PBS and CBS programs regulate facilities storing small to large quantities of petroleum and other chemicals, and related spills and releases of petroleum and hazardous substances.  The purpose of the updates is to harmonize the state programs with the federal regulations, as well as to provide more consistency between the state programs.

The deadline to submit public comments has been extended to December 6, 2021.  The express terms of the proposed PBS rule can be found here: Part 613 and the proposed CBS rule here:  Part 597 and Part 598.

Some key highlights of the proposed changes to the PBS and CBS rules include:

  • Reporting Requirements:
    • The PBS rules now list the parties required to report spills.  In addition to parties such as the facility owner, tank system owner, operators, and anyone who causes a spill at the facility, among others, the list includes “any other party and its contractors who have been retained as part of a business transaction relating to the facility.”  If this last class of parties is interpreted to include prospective buyers and their environmental consultants performing due diligence, this will likely impact diligence strategy for both buyers and sellers of regulated facilities.
    • The parties required to report spills at facilities under the CBS rules mirror the PBS updates described above. Note, the parties required to report spills of hazardous substances under Part 597 (e.g. any person in actual or constructive control or possession of the hazardous substance when it is spilled, or any employee, agent or representative of such person who has knowledge of the spill) has not changed.
    • Under both PBS and CBS rules, suspected spills at applicable facilities must be reported within two hours of discovery, which is consistent with the timeframe for reporting actual spills and releases.
    • NYSDEC’s position that certain failed testing/monitoring results constitute a suspected, reportable spill is formalized in both PBS and CBS rules.
  • Financial Responsibility:  The PBS rules create new financial responsibility requirements for tank owners/operators to address corrective action measures and third-party claims for bodily injury and property damage due to releases from the operation of underground storage tanks.  Acceptable financial responsibility mechanisms include an insurance policy, letter of credit, trust fund, surety bond, self-insurance, or guarantee.
  • Use of Alternative Leak Detection Methods:  The PBS rules allow for alternative methods for leak detection, so long as the alternatives are approved by NYSDEC and are at least as stringent as the practices outlined in the regulations.
  • Response and Corrective Action:  The PBS rules include updated provisions to the release response and corrective action requirements, including listing the facility owner, tank system owner, and operator as responsible for complying with the requirements.
  • Periodic Testing and Inspection RequirementsBoth PBS and CBS rules update testing, monitoring, inspection, and repair requirements to align with the federal requirements.
  • Revised Operator Training:  Both PBS and CBS rules contain revised tank operator training provisions.

We will continue to monitor developments and provide updates on the rule changes.  If you have any questions, please do not hesitate to reach out.

Upon passing the $1.2 trillion Infrastructure Investment and Jobs Act (H.R. 3684) last week, the Senate provided significant funding towards development of the nation’s environmental and energy infrastructure. The Infrastructure Act also streamlines environmental review, permitting, and approval of federal infrastructure projects.

The Infrastructure Act includes funding for:

  • Reinstatement of the Superfund Tax: The Superfund Tax is an excise tax on specifically listed chemical to fund cleanup at Superfund Sites. The Act reinstates the tax, which is projected to generate $14.4 billion over the next 10 years.
  • Superfund Remedial Account: The Act provides $3.5 billion in additional funding over the next 5 years for U.S. EPA to conduct remedial actions at Superfund site. The Act waives state cost sharing requirements and requires U.S. EPA to consider tribal community needs at federally funded Superfund sites.
  • Brownfields Grants and Loans: The Act provides $1.2 billion for grants and loans under U.S. EPA’s Brownfields Program over the next 5 years. Brownfield sites are contaminated properties that are remediated and redeveloped for reuse. U.S. EPA’s Brownfields Program, which is authorized under the Superfund statute, provides grants and loans for site characterization and remediation of Brownfields sites.
  • Water Infrastructure Appropriations: The Act includes the Drinking Water and Wastewater Infrastructure Act (S. 914) authorization bill, which provides $55 billion in reauthorizations and new funding under the Safe Drinking Water Act and the Clean Water Act, such as:
    • $10 billion in grants for mitigating perfluoroalkyl and polyfluoroalkyl substances (PFAS) in drinking water and wastewater systems.
    • $11.73 billion for lead service line replacement projects and $200 million to address lead in school drinking water systems.
    • $14.65 billion in funding under Drinking Water State Revolving Fund, which provides grants to states to provide loans for waste system infrastructure projects.
  • Resiliency Projects: The Act provides $17 billion in funding for resiliency projects and studies by agencies such as U.S. EPA, U.S. Army Corps in areas such as flood mitigation and control, coastal erosion and risk management, disaster mitigation, waste management, drought resiliency, ecosystem restoration, wildfire management, and pollution prevention.
  • Energy Infrastructure Appropriations: The Act includes the Energy Infrastructure Act (S. 2377) authorization bill, which includes:
    • $2.5 billion over 5 years to establish grants through the U.S. Dept. of Transportation to create publicly accessible alternative fuel vehicle charging infrastructure.
    • $1 billion each year for 5 years for funding to states creating electric vehicle charging infrastructure.
    • $1 billion each year for 5 years to replace outdated school buses, with 50% of the funds going toward zero-emission and low-emission alternative fuel buses.
    • $65 billion for energy and electric grid infrastructure and resiliency programs, including programs to enhance the current electric grid against extreme weather events, to establish grid flexibility by implementing smart grid technologies, and to conserve energy and reduce carbon emissions in the transportation sector.
    • $3 billion for battery manufacturing and recycling and $200 million for electric drive vehicle battery recycling and second-life applications.
  • Carbon Capture and Hydrogen, Nuclear, and Hydropower Energy Research: The Act provides $6.42 billion for grants and loans for carbon storage and reduction programs in areas such as public transportation, traffic control, and intelligent transportation systems. The Act provides over $8 billion for the manufacturing of clean hydrogen and establishment of clean hydrogen hubs, $6 billion in Dept. of Energy supplemental appropriates related to nuclear energy, and $200 million for hydroelectric production and efficiency improvements.

The Infrastructure Act streamlines the environmental review, permitting, and approval of federal infrastructure projects. The Act reinstates a portion of the recently rescinded Executive Order 13801, known as the “One Federal Decision,” which expedites environmental review under the National Environmental Policy Act, or NEPA. This includes a two-year deadline for completing environmental review of major federal projects, limiting the scope of environmental impact statements, and development of categorical exclusions to accelerate federal projects. In addition, the Act amends the Fixing America’s Surface Transportation Act, or FAST Act, by repealing the sunset provision for the streamlining of cross-agency permitting and approval of federal infrastructure project.

The Infrastructure Act is now with the House, which is simultaneously considering a $3.5 trillion budget plan that includes environmental and energy related funding, tax incentives, grants and consumer rebates toward electric vehicles, green energy manufacturing and transportation, and clean energy and weatherization in homes. The budget plan also imposes polluter fees on methane and carbon.

The Infrastructure Act’s ultimate fate is uncertain. While it is likely to pass in some form, it is unclear whether the Act’s existing environmental and infrastructure funding and project streamlining provisions will survive intact. The House is expected to take up both the Infrastructure Act and the budget plan after it returns from break at the end of August.