NJDEP Re-Adopts TCPA Program Rule with Amendments

May 8, 2009
Client Alert Newsletter May 2009

On March 16, 2009, the New Jersey Department of Environmental Protection ("NJDEP") published a notice in the New Jersey Register in which it re-adopted, with amendments, the rules for the Toxic Catastrophe Prevention Act ("TCPA") program that were initially proposed on September 15, 2008. The TCPA requires facilities that handle extremely hazardous substances ("EHSs") in excess of certain threshold quantities to have an NJDEP-approved risk management program, the goal being to prevent catastrophic accidents that could cause death or permanent disability to the public beyond the facility boundary. In addition to re-adopting the rules that provide requirements for developing and implementing risk management programs and making general clarifications, NJDEP adopted the following amendments (which are largely consistent with the September 2008 proposal): (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; (6) certain revisions applicable to liquefied petroleum gas and reactive hazardous substances; (7) deletion of the exemption for Group I Reactive Hazard Substances ("RHSs") that have an inhibitor; (8) addition of an exemption for RHSs that cannot have a catastrophic accident; and (9) addition of organometallics to the list of RHS mixture functional groups. NJDEP also adopted amendments related to the TCPA program's penalty and confidentiality provisions and the provisions for determining threshold quantity applicability.