NJDEP Adopts Amendments to Site Remediation Rules and Initiates New Program for Remediation of “Heating Oil Tank Systems”

Contaminated site remediation projects in New Jersey are governed by an assemblage of rules and regulations that implement the State’s environmental statutes.  Just last week, the New Jersey Department of Environmental Protection (“NJDEP”) adopted amendments to a number of these rules.  While the NJDEP has characterized the amendments as changes that will clarify the rules and further streamline the implementation of the site remediation program, there are a number of noteworthy revisions that modify existing remediation obligations and procedures.  In addition, the NJDEP adopted new regulations that address discharges from a category of heating oil tanks identified collectively as “heating oil tank systems (“HOTS”).”  Although the specific changes are numerous, below is a listing of the more significant rule changes.  If you are involved in the investigation or remediation of a contaminated property, you should review the amendments to determine whether these changes affect your site.

Discharges of Petroleum and Other Hazardous Substances, N.J.A.C. 7:1E (the “Discharge Rules”)

  • The existing rules required “major facilities” (i.e. facilities that store a certain amount of hazardous substances) to address discharges in accordance with both the facility’s discharge cleanup and removal (“DCR”) plan and the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C (“ARRCS”), which require the retention of a licensed site remediation professional (“LSRP”) to oversee the remediation.  The NJDEP revised the Discharge Rules to give the facility the option to address the discharge either under the DCR plan or ARRCS. See N.J.A.C. 7:1E-5.7(a)2.  The NJDEP, however, has reserved the right to order the facility to hire a Licensed Site Remediation Professional (“LSRP”) to conduct the remediation in the event the DCR plan is not sufficient to address the discharge.

New Jersey Pollutant Discharge Elimination System Rules, N.J.A.C. 7:14A (the “NJPDES Rules”)

  • Under the NJPDES Rules, certain discharges to groundwater that result from site remediation activities (e.g., discharges associated with sampling or to implement remediation) are authorized under a permit-by-rule, and therefore, do not require an individual permit.  The NJDEP revised the NJPDES Rules to more clearly list the activities that are eligible for a permit-by-rule and identify the process for obtaining the NJDEP’s written approval for such a discharge. See N.J.A.C. 7:14A-7.5(a).  The NJDEP also has added a requirement that dischargers stop any negative impacts caused by the discharge to groundwater and remediate those impacts in accordance with the applicable site remediation requirements. See N.J.A.C. 7: 14A-7.5(f). 

Underground Storage Tank Rules, N.J.A.C. 7: 14B (the “UST Rules”)

  • The NJDEP revised the UST Rules to clarify that even if the site investigation of a suspected discharge from a UST demonstrates that no further action is required, an LSRP must still issue a response action outcome (“RAO”) to close the UST case.  See N.J.A.C. 7:14B-7.2(c).

Industrial Site Recovery Act Rules, N.J.A.C. 7:26B (the “ISRA Rules”)

  • The NJDEP revised the ISRA Rules to correct the timeframe by which the person responsible for conducting the remediation (“PRCR”) at an ISRA site must establish a remediation funding source (“RFS”) to conform with the timeframe set forth in the Brownfields Act.  Under the revised rule, the PRCR must establish an RFS within 14 days after the NJDEP receives a remedial action workplan certified by an LSRP.  See N.J.A.C. 7:26B-3.4(a).
  • As a result of the decision in Des Champs Laboratories, Inc. v. NJDEP, 427 N.J. Super. 84 (App. Div. 2012), the NJDEP revised the de minimis quantity exemption to no longer require a certification that the industrial establishment is not contaminated above applicable standards in order to qualify for the exemption.  See N.J.A.C. 7:26C-5.9(b).  The NJDEP noted in its rule proposal, however, that it has the authority to require remediation of an industrial establishment under other environmental statutes, including the Spill Act, even if the industrial establishment qualifies for a de minimis quantity exemption.

Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C (“ARRCS”)

  • The NJDEP amended the definition of “person” under ARRCS to include “a responsible corporate official, which includes a managing member of a limited liability company or a general partner of a partnership.”  See N.J.A.C. 7:26C-1.3.  In its rule proposal, the NJDEP noted that it was making this amendment to clarify the responsibility of certain business officials who have the actual responsibility for the condition or act resulting in a violation but neither prevent nor correct the violation.  Commenters to the rule proposal objected to this change as a broad expansion of liability and an abrogation of the protections afforded by the corporate form under well established law.
  • The definition of “statutory permittee” that is subject to remedial action permit (“RAP”) compliance has been adjusted to mean any person who becomes the owner, operator or tenant after an institutional or engineering control is placed on the property.  See N.J.A.C. 7:26C-1.3.  Also, ARRCS has been revised to require a “statutory permittee” to submit a RAP transfer application to the NJDEP within 60 days after the transfer of the property. See N.J.A.C. 7:26C-7.11
  • A number of changes have been made to the public notice requirements at N.J.A.C. 7:26C-1.7, including the following:
    • The rules clarify that (1) the NJDEP does not need to be notified via the WARNDEP Hotline if the only discharge is historic fill, and (2) owners or operators of USTs only need to notify the NJDEP via the Hotline if a discharge is confirmed, not when a discharge is merely suspected. See N.J.A.C. 7:26C-1.7 (c) and (d).
    • The timing for providing public notice has been changed to 14 days prior to commencing field activities associated with the remedial investigation (as opposed to the remedial action) and proof of public notice must be submitted to the NJDEP within 14 days after providing public notice (as opposed to being required to provide the proof with the next remedial phase report). See N.J.A.C. 7:26C-1.7(g) and (h).
  • The NJDEP has established new timeframes for providing notification to the NJDEP of the dismissal, resignation or incapacity of the LSRP and the identity of the new LSRP.  These timeframes are now two working days for a site with an immediate environmental concern (“IEC”) and 45 days for all other sites. See N.J.A.C. 7:26C-2.3(c) and (d).
  • A number of changes have been made to the RFS and financial assurance (“FA”) requirements, including the following:
    • The revised rules clarify that any person may establish FA on behalf of a responsible party; the rules previously only mentioned RFS. See N.J.A.C. 7:26C-5.2(i).
    • The trustee of a remediation trust fund cannot be the PRCR. See N.J.A.C. 7:26C-5.4(a)1.
    • A self-guarantee may be supported with financials audited in compliance with International Standards on Audits. See N.J.A.C. 7:26C-5.8(a)4.
    • If an engineering control is no longer needed at a site, the FA will not be released by the NJDEP until a RAP modification or termination is issued by the NJDEP. See N.J.A.C. 7:26C-5.11(e)2.
  • The NJDEP has also made changes to the issuance of RAOs by LSRPs, including (1) clarifying that when there is a change in the remediation, the LSRP cannot issue an RAO until after the NJDEP issues a RAP modification or termination, (2) requiring that all wells no longer used for the remediation have been properly decommissioned or otherwise accounted for prior to issuing the RAO, and (3) adding a restriction that only the LSRP retained by the PRCR can issue an RAO for the remediation. See N.J.A.C. 7:26C-6.2(a) and (h).  Notably, based on comments it received from stakeholders, the NJDEP decided not to adopt a proposed rule that required the correction, rescission, withdrawal, or invalidation of RAOs in certain circumstances.  Among other reasons for objecting to this proposed rule, commenters were concerned that it would obligate an LSRP to withdraw an RAO even where the remedial action remained protective.
  • Changes have been made to the classification exception area (“CEA”), Deed Notice, and RAP requirements, including the following:
    • The addition of an “indeterminate” CEA and “virtual RAP” for historically applied pesticides (“HAP”), giving HAP the same treatment as historic fill when it impacts groundwater. See N.J.A.C. 7:26C-7.3(h).
    • Changes to the Model Deed Notice to clarify that temporary disturbances to an engineering control do not require notice to the NJDEP or a modification to the RAP and that permanent alteration, improvement or disturbance of an engineering control is subject to a new process that requires (1) termination of the existing deed notice, (2) recording of a new deed notice and exhibits, (3) application for a RAP modification or termination, and (4) a remedial action report. See N.J.A.C. 7:26C Appendix B.
    • In the event of a subdivision of a site, a permittee now must within 30 days of municipal subdivision approval, request termination of the existing RAP and Deed Notice, record a new Deed Notice for each subdivided parcel and apply for a new RAP.  See N.J.A.C. 7:26C-7.2(d).  In addition, the NJDEP no longer requires a RAP modification when a municipality revises Block and Lot designations for a site or when the permittee changes its address, but the permittee is required to notify the NJDEP of these changes no later than the due date for the next remedial action protectiveness certification. See N.J.A.C. 7:26-7.7(a).

Technical Requirements for Site Remediation, N.J.A.C. 7:26E (the “Tech Regs.”)

  • The NJDEP has clarified that remedial action (“RA”) is required when contaminants exceed any aquatic surface water quality standard, any ecological screening criterion or any site-specific ecological risk-based remediation goal approved by the NJDEP when an environmentally sensitive natural resource is present. See N.J.A.C. 7:26E-5.1(b)2.
  • The NJDEP has also clarified that when importing alternative fill to a site without pre-approval from the NJDEP (1) each individual contaminant in the donor fill must be present in the receiving area above applicable remediation standards, and (2) the amount of alternative fill brought on-site does not exceed the amount necessary to restore the pre-remediation topography and elevation of the site.  See N.J.A.C. 7:26E-5.2(b).  This latter requirement has been hotly debated by developers who believe the requirement to obtain pre-approval from the NJDEP will slow down the pace and increase the cost of redevelopment, especially in flood zones where fill material is needed raise the grade of properties above the required flood zone elevations.
  • The presumptive remedy requirements for the remediation of schools, child care centers and residences no longer require a vapor barrier for historic fill and certain other contaminants that do not cause vapor issues.  See N.J.A.C. 7:26E-5.3 Table 5-1.
  • A remedial action workplan now must be submitted to the NJDEP prior to the implementation of the RA, as opposed to 60 days prior to the implementation.  

Heating Oil Tank Systems Rules, N.J.A.C. 7:26F (“HOTS Rules”)

  • The NJDEP has adopted new regulations to address the closure and remediation of discharges from HOTS.  HOTs include “residential aboveground heating oil tank systems,” “small aboveground non-residential heating oil tank systems” and “unregulated heating oil tank systems,” which are underground storage tank systems that are not otherwise regulated under the UST Rules.  Since the majority of HOTS are owned by homeowners, the NJDEP thought it helpful to consolidate the rules relating to closure and discharges from these systems in one location.  Owners or operators of HOTS may use a certified subsurface evaluator or an LSRP to address discharges (which must be hired within two business days after discovery of a discharge), and upon completion of any required remediation, the NJDEP will issue a No Further Action Letter (“NFA”).  One particularly unique aspect of this new program is that under certain circumstances it allows residual soil contamination to remain at a residential property under a HOTS Deed Notice (which is different than a traditional Deed Notice) and does not require a RAP.  A residential owner also may have the option of dealing with residual soil contamination by utilizing a “small quantity exemption” that allows the residential owner to leave less than 15 cubic yards of residual contamination under a residential building when excavation or treatment is impeded or impracticable.  Notably, however, recording a HOTS Deed Notice or using a “small quantity exemption” memorializes the existence of the contamination, which could affect the value of the property.

Given the breadth of these amendments, anyone conducting or overseeing an investigation or remediation at a contaminated site should review these changes.  In addition, more changes are on the horizon as stakeholders have been engaged with the NJDEP and Senator Bob Smith, Chairman of the Senate Environment and Energy Committee, to identify additional changes to improve the site remediation program, under an initiative commonly referred to as SRRA 2.0.  Our environmental attorneys are engaged in this stakeholder process and can keep you informed of the latest developments in the SRRA 2.0 discussions.

For more information, please contact the author Jaan M. Haus at jhaus@riker.com or any attorney in our Environmental Practice Group.