The New Jersey Department of Environmental Protection (Department) is proposing new rules, repeals, and amendments related to the Site Remediation Reform Act amendments.
The New Jersey Department of Environmental Protection (Department) is proposing new rules, repeals, and amendments related to the Site Remediation Reform Act amendments. The Department is proposing to amend its site remediation rules 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 environmental statutory law. The proposal is scheduled to be published in the New Jersey Register, dated October 21, 2024, a public hearing will be held on November 21, 2024, and written comments may be submitted until December 20, 2024.
The Department’s proposal includes, but is not limited to, changes to existing regulations to: (1) expand LSRP obligations to oversee cases and the work of environmental professionals who are not LSRPs, (2) amend direct oversight rules and requirements, (4) require only one remedial action permit for a contaminated site that would include all impacted media (i.e. soil, groundwater, and indoor air), and (5) create categories of remedial action permits to shorten review time of “simpler” permits. The proposal also changes the way remediating parties interact with municipalities and counties, including requiring notice to be provided prior to initiation of a remedial investigation and expanding the types of documents required to be provided to a municipality or county upon request.
The proposal also includes one proposed change that would have significant impact on the sale and purchase of real estate in New Jersey. The proposal includes a provision that, if a person is performing “all appropriate inquiry” (i.e. a Preliminary Assessment and, if necessary, Site Investigation) for the purpose of establishing innocent purchaser status through due diligence and discovers a discharge, that person is obligated to report the discharge to the NJDEP and notify the property owner. The person performing such all appropriate inquiry would not be liable for investigating and remediating the property unless they purchase the property, but the Department also re-confirmed that a property owner who obtains specific knowledge of a discharge (e.g. a notification from a potential buyer) would have to alert the Department and, in turn, address the discharge. Should this provision be adopted, it would almost certainly change the way real estate and environmental attorneys negotiate purchase and sale agreements and advise their clients regarding due diligence.
MSB’s Chair of the Environmental Law Department, Eric Tomaszewski, regularly represent public and private clients in real estate transactions for regulated and contaminated property and has previously been retained as an expert witness in attorney malpractice cases on the topic.