2025 NJ Environmental Regulation Alert: Major Amendments Proposed to NJDEP’s Site Remediation Rules
February 4, 2025NJDEP has proposed significant amendments to four sets of site remediation regulations: N.J.A.C. 7:26B (Industrial Site Recovery Act), N.J.A.C. 7:26C (Administrative Requirements for the Remediation of Contaminated Sites), N.J.A.C. 7:26E (Technical Requirements for Site Remediation), and N.J.A.C. 7:26F (Heating Oil Tank System Remediation). Commercial and industrial property owners and developers, site remediation professionals, lenders and other affected stakeholders should pay close attention to these amendments, which—if adopted—will transform not only the management of polluted properties in New Jersey, but will likely impact the State’s real estate market and overall business environment.
NJDEP proposed these regulatory amendments in response to the enactment 2019 amendments to the Site Remediation Reform Act. The amendments, popularly referred to as “SRRA 2.0,” amend the original 2009 statute (codified at N.J.S.A. 58:10C-1 et seq.) and several related statutes that address site remediation activities. The original enactment of SRRA in 2009 was considered a watershed moment for site remediation in New Jersey as it introduced the Licensed Site Remediation Professional (“LSRP”) program, which transferred responsibility for overseeing site cleanups from NJDEP to licensed environmental consultants.
SRRA 2.0 further refined the legal framework ushered in by SRRA to account for lessons learned from the first ten years of SRRA’s existence. The newly proposed amendments seek to further clarify, change and/or correct the existing site remediation rules. The proposed rule amendments include the following notable changes which will almost certainly impact the real estate market and property owners in a negative way:
- Requiring anyone who obtains specific knowledge of a discharge of contaminants to notify both NJDEP and the affected property owner about the discharge. This proposed change is of paramount importance because, under the existing rules, potential buyers of real property are not obligated to report a discharge that is discovered during a pre-purchase due diligence investigation. In fact, it is often the case that real estate contracts expressly require prospective buyers to keep the results of their environmental due diligence confidential and/or to refrain from using a LSRP that holds a stricter duty to report. While the proposed amendments make it clear that a prospective buyer who discovers evidence of a discharge will not be liable for remediation unless and until that person acquires the property subject to the due diligence, NJDEP’s expanded notification requirement means that the current owner of a property for sale will incur new investigation and remediation obligations if a discharge is discovered even if the prospective buyer does not ultimately purchase the property.
- Overhauling NJDEP’s remediation-related permitting process. The proposed rule amendments create five new types of remedial action permits for different media (e., soil, water or air) and the situationally appropriate method for remediating them (e.g., a deed control or an unrestricted use remedy). Each type of permit is also subject to different review timelines by NJDEP.
- Streamlining the biennial certification process. The proposed amendments will allow for all impacted media to be included in a single remedial action permit with a unified schedule for submitting biennial certifications, an option that is not currently available to permittees. However, biennial certifications will also need to include more information under the proposed rules, such as maintenance and monitoring plans for the site and the results of any additional sampling performed during the prior two years.
- Allowing Response Action Outcomes to be annulled when the issuing LSRP is no longer available to make changes due to incapacitation, death, or non-renewal of license. Under current NJDEP practice, NJDEP has three years to audit a Response Action Outcome (“RAO”) issued by a LSRP signifying that remediation is complete. NJDEP can also invalidate a RAO or a No Further Action (“NFA”) letter based on a finding by NJDEP that: it is not protective of public health, safety and the environment undiscovered contamination is found that was not addressed; the Site Remediation Professional Licensing Board conducts an investigation of the LSRP issuing the RAO; or the LSRP’s license is suspended or revoked.
- Allowing Remedial Action Permits to be revoked by NJDEP because it is no longer protective. By the proposal’s express terms, NJDEP would be able to revoke a Remedial Action Permit in the absence of any alleged non-compliance by the permittee if NJDEP merely no longer considers the permit to be sufficiently protective. The revocation is considered a final agency decision and an adjudicatory hearing may requested to contest that decision.
NJDEP’s proposed amendments to its Site Remediation regulations are extensive, and the highlights above are not exhaustive. If you have any questions about how they may affect your business, please contact Amie C. Kalac (AKalac@cullenllp.com), Neil Yoskin (NYoskin@cullenllp.com), or Zachary Klein (ZKlein@cullenllp.com) at (609) 279-0900.
Please note that this is a general overview of the law and does not constitute legal advice, and nothing herein creates an attorney-client relationship between the sender and recipient.