Key Contacts
NJDEP Publishes Proposed Amendments to its Site Remediation Program
On October 21, 2024, the New Jersey Department of Environmental Protection (NJDEP) published proposed amendments to its Site Remediation Program (SRP), consisting of revisions to the Industrial Site Remediation Act rules, the Administrative Requirements for the Remediation of Contaminated Sites, Technical Requirements for Site Remediation, and the Heating Oil Tank System rules (Proposed Rule). In large part, the Proposed Rule implements 2019 legislative amendments to the Site Remediation Reform Act (SRRA), incorporates amendments related to the 2021 Remediation Standards, and memorializes efforts to streamline and expedite the Remedial Action Permit (RAP) program, but also includes certain key changes to the SRP paradigm that have the potential to significantly impact the regulated community.
Remedial Action Permit (RAP) Changes
NJDEP is making various changes to its RAP program in an attempt to streamline and expedite the permitting process. Of most significance, the proposed regulations would require a permit for any engineering and institutional controls required to address indoor air concerns. In addition, NJDEP is proposing to issue a combined RAP for all impacted media requiring a permit (soil, groundwater, and indoor air), where separate permits are currently required. In support of this change, NJDEP has stated its belief that one combined permit would simplify biennial protectiveness evaluations and fee schedules for the regulated community. The proposed regulations would also implement a program of five focused RAPs for commonly issued permits that are less technically complicated, hopefully allowing NJDEP to expedite application reviews and permit issuance. As a corollary of the proposed one permit paradigm, if an additional permit is required after a RAP has already been issued, this would be effected through a RAP modification.
Reporting Requirements for Prospective Purchasers
The Proposed Rule would require prospective purchasers who discover the discharge of hazardous substances during due diligence to report the discharge to both the record owner of the property and to NJDEP through its hotline at 1-877-WARNDEP. Discharges must be reported by the prospective purchaser regardless of whether an LSRP conducted due diligence on behalf of the prospective purchaser, a significant change from the current paradigm. The Proposed Rule makes clear that the prospective purchaser that discovers the discharge during due diligence is not responsible for cleanup and removal costs connected with the discharge unless and until that person acquires the property. This proposed rule change is likely to have a significant impact on property transactions.
Indoor Air
Consistent with the 2019 legislative amendments, the Proposed Rule reflects an effort by NJDEP to increase regulatory requirements for indoor air areas of concern (AOCs). First, the Proposed Rule establishes a requirement to establish an Indoor Air Notification Area (IANA) institutional control for areas where indoor air/vapor intrusion may be an exposure pathway of concern. This rule would be similar to the current requirement to establish a Classification Exception Area (CEA) institutional control for areas of contaminated groundwater, and as with CEAs, the establishment of a IANA would require notification to municipalities and counties in which the IANA is located, as well as owners, tenants, and occupants of any occupied structures within the IANA. To secure regulatory closure of an indoor air/vapor intrusion AOC, it would be necessary for a LSRP to issue a Response Action Outcome (RAO) for the AOC. Second, Immediate Environmental Concern (IEC) requirements would change to require notification of an IEC regardless of whether the structure is occupied, where previously notification was only required for occupied structures or structures capable of being occupied. A carve-out from this proposed requirement would require the property owner to certify that the structure: (1) is not occupied; (2) will not be occupied; and (3) will be demolished.
A courtesy copy of the Proposed Rule is available here. Written comments on the Proposed Rule must be submitted by January 31, 2025. If you are interested in submitting comments, please contact Jonathan Spergel, Natalia Teekah, or Michael Nines.
