Costs to clean up environmentally impacted 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 circumstance caused by infrastructure challenges from shifting weather patterns and greater population density all pose risks to parties fulfilling cleanup obligations.

The trend will continue as states begin to focus energy and attention on the use of “green” and “sustainable” technologies when implementing remedies. The New Jersey Department of Environmental Protection (NJDEP)’s Contaminated Site Remediation and Redevelopment Program (CSPP) published new administrative guidance promoting the use of green and sustainable remediation techniques in New Jersey state-led cleanups. 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.

What’s in the Guidance

New Jersey has been a state leader in prioritizing environmental justice (EJ). (See here.) Even though some push-back has caused federal regulators to prioritize longer-term EJ issues (see here, for a discussion of litigation on Louisiana’s pushback on federal EJ efforts there and here, discussing challenges for race-conscious EJ efforts), state-level EJ pushes continue. Some of them, like New Jersey’s, incorporate a focus on “green” and “sustainable” program implementation.

NJDEP’s guidance builds on US Environmental Protection Agency’s (EPA) Principles for Greener Cleanups. 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. See here for a related discussion.)

• Remediating parties should work to minimize the overall environmental effects of remediation activities through 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.”

• 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 another tool at the disposal of 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 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 probably 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.