NJDEP Proposes to Readopt and Amend Toxic Catastrophe Prevention Act Regulations

November 9, 2008
by BRUCE KATCHER
Client Alert Newsletter November 2008

In the September 15, 2008, New Jersey Register, the New Jersey Department of Environmental Protection ("NJDEP") proposed the readoption and amendment of its regulations under the Toxic Catastrophe Prevention Act ("TCPA"). The TCPA applies to facilities that handle extremely hazardous substances ("EHSs") that exceed certain threshold quantities and requires those facilities to have an NJDEP-approved risk management program. Among the major proposed revisions are: (1) elimination of the definition of and related provisions applying to "industrial complexes;" (2) revisions to how petroleum refining process units are defined and handled; (3) elimination of the "Program 2" release requirements and coverage of all facilities under the more stringent Program 3 requirements; (4) elimination of the definition of "state of the art" in light of the recent adoption of the requirement to perform "inherently safer technology" evaluations; (5) revisions to the concentration and likelihood criteria applicable to risk reduction in performing risk assessments; and (6) certain revisions applicable to liquefied petroleum gas and reactive hazardous substances. Also affected are the penalty and confidentiality provisions, the provisions for determining threshold quantity applicability and the inclusion of clarifications throughout the regulations.