Key Contacts
New Jersey’s Site Remediation Program Changes to Expect in 2025
The New Jersey Department of Environmental Protection’s Site Remediation Program advanced significant regulatory initiatives in late 2024 that will likely be finalized in 2025. The main initiatives are addressed below.
New Jersey Site Remediation Proposed Rule
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. Comments on the rulemaking proposal are due on January 31, 2025 with the rulemaking anticipated to be finalized sometime in 2025.
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. As a corollary of the proposed one permit paradigm, NJDEP is proposing to allow for additional permits that may be required after a RAP has been issued to be obtained through a RAP modification. The proposed regulations would also implement a program of five focused RAPs for commonly issued permits that are less technically complicated, potentially allowing NJDEP to expedite application reviews and permit issuance.
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 the NJDEP hotline (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 approach.
The reporting trigger would now be included in the Administrative Requirements for the Remediation of Contaminated Sites at new NJAC 7:26C-2.4, stating:
- When a person performs remediation as defined at N.J.A.C. 7:26C-1.3, including performing all appropriate inquiry in accordance with N.J.S.A. 58:10-23.11g, and obtains knowledge that a discharge has occurred at any location on a property, that person shall immediately notify the Department by calling the Department's telephone hotline at 1-877-WARNDEP and shall notify the record owner of the property.
- If a person who does not own the property is conducting all appropriate inquiry and that person has not discharged a contaminant at the property or is not in any way responsible for a contaminant discharged at the property, then that person shall not be liable for cleanup and removal costs of the discharge unless and until that person acquires the property.
- Notwithstanding (a) or (b) above, whenever a person obtains knowledge that a discharge has occurred at any location on a property, that person shall immediately notify the Department by calling the Department's telephone hotline at 1-877-WARNDEP.
NJDEP’s commentary on this section states that the reporting requirement is triggered when a person “discovers a discharge” during the course of AAI or otherwise “obtains specific knowledge of a discharge” thereby significantly broadening the scope of reportable discharges in New Jersey. 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 for the AOC. Second, Immediate Environmental Concern (IEC) requirements 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.
Comments are open on the Proposed Rule until January 31, 2025.
Ground Water Quality Standards Expected to be Adopted
As referenced in our 2024 Forecast, NJDEP published a proposed rulemaking that makes significant changes to the Ground Water Quality Standards (GWQS) promulgated at N.J.A.C. 7:9C. The proposed revised standards are applicable to Class II-A groundwater designated for potable use, which is the default designation for all groundwater in New Jersey. As such, these standards frequently dictate the allowable concentration of chemicals in groundwater at remediation sites and for NJPDES Discharge to Groundwater permits. The proposed changes include significant reductions to many of the GWQS and are expected to result in increased remediation costs as well as reevaluation and potentially additional remediation at previously closed sites for contaminants subject to a reduction in concentration by an order of magnitude or more. The rulemaking is currently pending adoption, which is anticipated sometime in 2025.
In addition, due to the EPA’s publication of the federal National Primary Drinking Water Regulation in April 2024 establishing Maximum Contaminant Levels (MCLs) for certain PFAS in drinking water, the NJDEP automatically incorporates changes to the federal MCLs if they are lower than the standards adopted by New Jersey. N.J.A.C. 7:10-5.1. NJDEP therefore will be required to update its GWQS to mirror the new MCLs. N.J.A.C. 7:9C-1.7(c)3i. Similarly, once the GWQS are updated, they automatically become the groundwater remediation standards. N.J.A.C. 7:26D-2.2(a). Further movement on establishing PFAS GWQS is anticipated for 2025.
NJDEP SRP Guidance Document – PFAS Sampling Fact Sheet Implementation
In August 2024, the NJDEP published its Per- and Polyfluoroalkyl Substances (PFAS) Sampling Fact Sheet (the “Fact Sheet”). Implementation of the Fact Sheet is anticipated to become more prominent during 2025. The Fact Sheet contains important sampling considerations for various media, selection of analytical methods, decontamination considerations and cross-contamination/bias considerations, and NJDEP has inserted a statement of interest to parties conducting PFAS related investigations. Namely, NJDEP is requesting that the full list of PFAS compounds analyzed and reported by the respective analytical methods be reported to the agency, regardless of whether there are relevant remediation standards. NJDEP further states that the Licensed Site Remediation Professional (LSRP) must ensure that the remediation is protective of public health and safety and the environment based upon all information in the possession of the LSRP and the person responsible for conducting the remediation (PRCR). The Fact Sheet then instructs the PRCR and/or LSRP that when it has information regarding the presence of PFAS, irrespective of whether that PFAS is currently listed as a hazardous substance, the PRCR is still responsible for the remediation (including investigation) of such contaminant if the PRCR has reason to believe the presence of the contaminant poses a risk to public health or safety or the environment. These conditions as articulated in the Fact Sheet will potentially have significant ramifications for LSRPs and PRCR’s conducting PFAS investigations in 2025 and place additional burdens on site remediation professionals and PRCR’s to iron out how to interpret detections of PFAS substances that may not have published toxicity data or relevant screening criteria.
