The New Jersey Department of Environmental Protection (NJDEP) has proposed a massive overhaul of its rules and regulations governing site remediation. The proposed changes would impact several key site remediation regulations, including the Industrial Site Recovery Act (ISRA) Rules, the Administrative Requirements for the Remediation of Contaminated Sites, the Technical Requirements for Site Remediation, and the Heating Oil Tank System Remediation Rules. If enacted, the proposed changes will significantly impact the regulated community and New Jersey real estate transactions.
The NJDEP published the proposed amendments to its Site Remediation Program (SRP) on October 21. 2024. The proposal seeks to codify and implement the provisions of P.L. 2019, c. 263 (the SRRA 2.0 Act), which concerned the remediation of contaminated sites, and amended and supplemented various parts of the statutory law. It also includes amendments to further simplify the remedial action permit process, streamline implementation of the licensed site remediation professional (LSRP) program, make technical changes and corrections, and clarify language in the chapters.
Below are some of the most important changes:
- Remedial Action Permits: The amendments seek to streamline the Remedial Action Permit (RAP) program in an attempt to accelerate the permitting process. Most notably, the amended regulations allow for a combined RAP for all impacted media requiring a permit (soil, groundwater, and indoor air). According to the NJDEP, offering one combined permit is designed to simplify biennial protectiveness evaluations and fee schedules. The NJDEP is also proposing to create five focused RAPs for commonly issued permits. These would be known as Permit I, Permit II, Permit III, Permit IV, and Permit V. The agency's aim is to separate simpler remedial action permit applications from more complex ones. This is intended to expedite the issuance of such permits and reduce costs for the regulated community. The new regulations would also require a permit for any engineering and institutional controls to address indoor air issues.
- Responding to Public Inquiries: Under the proposed regulations, a person responsible for conducting a remediation must respond to any inquiries from the public regarding the status of the remediation. Such response must include either: (1) information or documents that are responsive to the public inquiry; or (2) a written summary status report for the remediation, including a description of the site's industrial history, source(s) of contamination, description of contamination, current remedial status, proposed remedial actions with a schedule, extent of contamination, actions performed to minimize the impact to the public, and a list of online resources for information about the contaminants. A person responsible for conducting a remediation can designate an LSRP to respond to public inquiries.
- Prospective Purchasers: The NJDEP is proposing to amend the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) torequire a prospective purchaser of real property who obtains specific knowledge during pre-closing due diligence of a discharge of hazardous substances on the property to immediately notify NJDEP and the record owner of the discharge. The proposed rules clarify that a person undertaking "all appropriate inquiry," such as a prospective purchaser conducting environmental due diligence, will not be liable for the discharge's cleanup and removal costs unless and until that person ultimately acquires the property. However, the notification would likely trigger investigation and remedial obligations for the selling property owner.
Of all the NJDEP's proposed changes, the ARRCS amendment requiring prospective purchasers to notify NJDEP and the site owner is predicted to have the broadest impact. Prospective purchasers have previously never had any environmental reporting obligations. In fact, many real estate deals include provisions requiring potential buyers to keep any due diligence findings confidential. Given the increased risk of liability, the new requirement could discourage real estate transactions in New Jersey.
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