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.
Proposed Changes to New Jersey’s Site Remediation Requirements
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.
What’s Next?
The public comment period regarding the proposed rules expires on Friday, January 31, 2025. You may submit comments electronically at www.nj.gov/dep/rules/comments. Each comment should be identified by the applicable N.J.A.C. citation, with the commenter’s name and affiliation following the comment.
If you are currently involved in site remediation, you should review the proposed amendments to determine whether they may impact your obligations. As always, the Scarinci Hollenbeck Environmental Law Group is available to answer your questions and discuss any concerns you may have.
Breach of Contract Explained: Types and Consequences
Breach of contract disputes are the most common type of business litigation. Therefore, nearly all New York and New Jersey businesses will likely have to deal with a contract dispute at least once. Understanding when to file a breach of contract lawsuit and how long you have to sue for breach of contract is essential […]
How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide
Closing your business can be a difficult and challenging task. For corporations, the process includes formal approval of the dissolution, winding up operations, resolving tax liabilities, and filing all required paperwork. Whether you need to understand how to dissolve a corporation in New York or New Jersey, it’s imperative to take all of the proper […]
Gross Lease vs. Net Lease: Understanding the Key Differences
Commercial leases can take a variety of forms, which is often confusing for both landlords and tenants. Understanding the different types, especially the gross lease structure, is important when selecting the lease that best suits your needs. One key distinction between lease types is how rent is calculated and paid. This article addresses the two […]
What to Do If You Are Impacted by a Retailer Bankruptcy Part 2
Over the past year, brick-and-mortar stores have closed their doors at a record pace. Fluctuating consumer preferences, the rise of online shopping platforms, and ongoing economic uncertainty continue to put pressure on the retail industry. When a retailer seeks bankruptcy protection, a myriad of other businesses are often impacted. Whether you are a supplier, customer, […]
The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business
Since his inauguration two months ago, Donald Trump’s administration and the Congress it controls have indicated important upcoming policy changes. These changes will impact financial services policies and priorities. The changes will particularly affect cryptocurrency, as well as banking rules and regulations. Key Regulatory Changes in Cryptocurrency For example, in the burgeoning cryptocurrency business environment, […]
Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1
The retail sector has experienced a wave of bankruptcy filings over the last year. Brick-and-mortar businesses in financial distress include big-name brands like Big Lots, Party City, The Container Store, and Vitamin Shoppe. When large retailers seek bankruptcy protection, they are not the only businesses impacted. Landlords can be particularly hard hit. While commercial landlords […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
