Top 5 Environmental Regulatory Concerns of 2024

16 May Top 5 Environmental Regulatory Concerns of 2024

Posted at 10:58h in Environment, Legal & Regulatory by askesa

Reading Time: 4 minutes

Recent NJDEP and EPA environmental regulatory changes highlight the importance of engaging a knowledgeable and well-informed environmental consultant to avoid unintended regulatory compliance issues. From revised groundwater contamination standards to newly enacted environmental sustainability rules, developers and stakeholders in New Jersey (and nationwide) face new regulatory challenges that demand immediate attention. In this article, ESA presents the Top 5 environmental regulatory concerns shaping redevelopment strategies in 2024.

Environmental Regulatory Concern #1: PFAS Contamination

As of April 2024, per- and polyfluoroalkyl substances (specifically, PFOA and PFOS, collectively known as PFAS) are now officially recognized by the Environmental Protection Agency (EPA) as hazardous substances. PFAS pose a significant environmental threat, necessitating comprehensive regulations, remediation efforts, and public awareness campaigns. An EPA Resource Conservation and Recovery Act (RCRA) hazardous compound designation is often an expensive proposition for environmental remediation. Complicating the issue is the uncertainty surrounding how regulatory agencies will handle the investigation and remediation of these contaminants. While new technologies are emerging, a proven track-record of success at remediating PFAS has yet to be established. Further, while most contaminants have a regulatory level expressed in parts per billion, PFAS compounds are regulated at the parts per trillion level (ppt). PFAS also presents challenges in virtually every step of the process, from sample collection and laboratory analysis to remediation.

Environmental Regulatory Concern #2: Flood Hazard Levels

With climate change potentially exacerbating extreme weather events, monitoring and mitigating flood hazard levels are critical. The NJDEPs new Inland Flood Protection Rules update New Jersey’s previous flood hazard and stormwater regulations to accommodate observed increases in rainfall, emphasizing the importance of proactive measures to safeguard communities and infrastructure. They replace current precipitation estimates with modern data to accommodate observed and projected increases in rainfall. These standards apply to certain new and substantially reconstructed developments in flood-prone inland riverine areas, but they do not prohibit development in these zones. Key components of the updated rules include elevating habitable first floors two feet higher than current NJDEP flood maps and three feet higher than FEMA maps. Additionally, applicants for certain permits will use NJ-specific precipitation data for calculating peak flow rates of streams and rivers. This will ensure compliance with NJDEP’s Stormwater Management Rules.

Environmental Regulatory Concern #3: Biennial Certification Case Reopeners

You may be familiar with the NJDEP Biennial Certification process if you have an NJDEP-approved Soil or Groundwater Remedial Action Permit (RAP) allowing contamination to remain on your property in excess of NJDEP remediation standards. The permit reinspection process has undergone increased scrutiny to evaluate former operations for use of PFAS, the groundwater analysis of 1,4-Dioxane, and vinyl chloride vis-à-vis its new lower remediation standard. And, in the first week of May (just as this article is being written), the residential lead cleanup standard was lowered from 400 ppm to 200 ppm.

The identification of any of these issues could reopen your RAP to investigate “new” areas of concern. Further, some property owners, as well as redevelopers for which a Response Action Outcome (RAO) has already been issued, will find their cases reopened, thus requiring additional expenditures to fund a new level of effort. There is no practical way to make yourself immune to this situation. The best course of action is to ensure that your environmental consultant conducts a proper investigation that follows current technical regulations. Contingencies for case reopeners underscores the need for environmental consultants and legal counsel to have clear communication throughout the project.

Environmental Regulatory Concern #4: PCBs

Polychlorinated biphenyls (PCBs) remain a significant environmental and public health risk. In August of 2023, the EPA finalized regulatory changes to improve the PCB Cleanup and Disposal Program under the Toxic Substances Control Act (TSCA). These changes address various key issues, including expanding options for characterization and verification of PCB waste cleanup, facilitating cleanup of waste generated by emergency spills, and providing greater flexibility with respect to disposal options when conducting a performance-based cleanup. While the TSCA offers three types of cleanups, performance-based and self-implementing cleanup are used most often. Risk-based cleanup, while still an option, remains costly and time consuming.

The changes, effective as of February 2024, modernize PCB regulations, aiming to make cleanup of contaminated sites easier and more affordable while remaining protective of the public’s safety. It streamlines cleanups, benefiting disadvantaged communities with quicker, more cost-effective, and compliant cleanups. For more on this topic, please refer to our recent article: PCB Cleanup Just Got a Little Easier.

Environmental Regulatory Concern #5: Environmental Sustainability and Governance (ESG)

Environmental sustainability isn’t merely a buzzword—it’s a call to action by policy makers. In 2024, governance mechanisms continue to be strengthened to ensure effective implementation of sustainability initiatives. Earlier this year, the US Securities Exchange Commission (SEC) issued a rule mandating companies to disclose carbon emissions. This signals a significant shift towards transparency and operational change. Interestingly, the rule requires disclosures for indirect emissions from all activities within the business.

The effect on business and development may not be immediate this year, but this carbon emission disclosure “engine” is in full motion. We expect changes up and downstream of development projects, specifically with regards to construction materials, energy use, and transportation. At times, environmental remediation can be separated into another “box” of the project, but expect environmental remediation activities to be included in these disclosures. The comment period for the rule is still open, but, overall, the government’s goal of transparency will affect the way energy is utilized during redevelopment in the near future. ESA anticipates that the coupling of SEC initiatives with a growing number of investors and fund managers who evaluate ESG criteria will equate to more changes to the ESG framework this year. The effects of these changes will resonate for years to come.

Conclusion

As we navigate through 2024, it is crucial to continue to monitor emergent environmental trends. Regrettably, for the regulated community, these trends typically translate to greater liability, cost, and time expended. ESA will continue to keep our clients informed about evolving regulatory developments to ensure that they are able to be proactive in dealing with the impacts.