In May, a proposed emergency rule change by the New Jersey Department of Environmental Protection that would impact certain kinds of flood zones and stormwater management – and go into effect in a matter of weeks – sent ripples across the commercial real estate industry for its potential impact on projects already in the pipeline.
NAIOP New Jersey recently held a Regulatory, Legislative, and Legal Update event at the Northeast Carpenters Training Center in Edison with the NJDEP and other experts discussing those NJ PACT rules, and other priority issues including the A-901 licensing program, environmental justice rules and emerging water contaminants (PFAS) during four panel discussions.
“We collaborate with members of the Administration, Legislature, other business groups and labor leaders to identify and overcome obstacles and to ensure that policy decisions are made to support sound and sustainable growth,” said NAIOP NJ Chief Executive Officer Michael McGuinness. “Programs like this are essential for keeping our members informed about rules and regulations that directly impact their day-to-day businesses.”
Here are some key takeaways from the event:
‘Dirty Dirt Law’
The measure came as a 2020 expansion to New Jersey’s A-901 solid waste licensing law that required businesses providing soil and fill recycling services to register with NJDEP by mid-April 2022 and apply for an A-901 license. According to NJDEP Director for the Division of Sustainable Waste Management Janine MacGregor, due to confusion some of those deadlines have been pushed back.
Now, “Companies must register by July 14 and apply for an A-901 license no later than one month after rules are promulgated,” she said.
New Jersey Protecting Against Climate Threats
Those ripples that came about from the proposed flood rule changes were met with action by way of inaction: Earlier this summer, NJDEP announced it would delay their implementation. Speaking at the NAIOP event, Assistant Commissioner for Watershed and Land Management Vincent Mazzei discussed the aim of the emergency effort, and what it could mean for the industry.
“We are raising the flood elevation by 2 feet and ensuring there is a connection between the national flood insurance program and our program so there’s no gap in federal funding,” he said. “In addition, all stormwater BMPs (Best Management Practices) must be designed for future storms as well as today’s storms.”
Now, Mazzei said, he anticipates the filing for the emergency rulemaking to come in the next month or so, after getting more feedback.
“We understand this expands jurisdiction and we want to get this right,” he said. “The plan is to apply the new standards in a graceful manner. We recognize that the standard we are shooting for may have changed but you may not be able to meet all of the requirements. It’s not black and white – we will work with you.”
Environmental Justice Law
This legislation requires the NJDEP to evaluate environmental and public health impacts for certain kinds of facilities on overburdened communities during permit renewals.
At the top of NAIOP NJ’s agenda? A third-party construction inspection extension bill that Gov. Phil Murphy conditionally vetoed last year.
“We are working closely with stakeholders and the governor’s office on crafting a piece of legislation that I think is going to be better with regards to its clarity in providing the kinds of options for a developer in pursuing inspections as well as streamlining and expediting the inspection process,” said NAIOP NJ Public Affairs Consultant Anthony Pizzutillo.
“[T]he department is seeking to correct a legacy of inequitable siting of pollution-generating facilities in low income and communities of color,” said Deputy Commissioner for Legal, Regulatory and Legislative Affairs Sean Moriarty. “We are looking at the stressor levels in particular and comparing them to communities that are not otherwise similarly situated.”
He added that there are specific criteria – and tools available – to assist developers in navigating the law. “The idea that this rule will prevent all development in overburdened communities is absolutely and completely false,” Moriarty said. “It opens up opportunity for new development and new facilities that are not pollution-generating.”
These highly toxic fluorinated chemicals never break down, and they travel easily. But according to Emily Lamond, a member in Cole Schotz PC’s Environmental Department, there’s currently no remediation standard for PFAS on the federal level—yet. EWMA President Donald Richardson said developers doing due diligence should “be on guard in regards to the definitions.” Even though the substances aren’t federally banned that doesn’t mean you’re in the clear.
“[I]if you are in a state jurisdiction it could be regulated as a hazardous substance,” Richardson said. “Be mindful about addressing PFAS and work closely with your consultants when writing the reports.”
Added Lamond, “Our advice to clients is you need to be thinking about PFAS at every phase of the deal process.”