New Jersey's Spill Compensation and Control Act (Spill Act) was enacted in 1977, establishing broad responsibilities for entities that handle hazardous substances, including reporting and cleanup by those responsible for contamination. (The Spill Act predated and helped inspire the national Superfund law (Comprehensive Environmental Response, Compensation, and Liability Act of 1980). The Act also provides limitations on liability in some circumstances, notably for entities that acquire land that is already contaminated. The Spill Act is administered by the New Jersey Department of Environmental Protection (DEP). On October 21, DEP proposed to expand Spill Act reporting responsibilities to all entities that discover contamination, including those conducting site evaluations as part of their due diligence – “All Appropriate Inquiries” – in support of possible property transfers.
What are the existing notification requirements?
The owner or operator of any specified type of facility (major facilities under the Spill Act; and facilities with a DEP-approved Risk Management Program under the New Jersey Toxic Catastrophe Prevention Act, an emergency Contingency Plan under the New Jersey Solid Waste Management Act, or a Spill Prevention Control and Countermeasure (SPCC) Plan under the Clean Water Act must notify DEP “immediately” (i.e., within 15 minutes) of any new discharge.
Furthermore, owners and operators are generally required to remediate contamination discovered at a facility, following regulatory and site-specific requirements from DEP.
What expanded requirements is DEP proposing?
DEP is proposing to expand the regulatory definition of “remediation” to include “all appropriate inquiry”, which would continue to be defined as “… the performance of a preliminary assessment, and site investigation, if the preliminary assessment indicates that a site investigation is necessary.” Under this proposal (NJAC s. 7:26C-2.4):
“When a person performs remediation …, including performing all appropriate inquiry … obtains knowledge that a discharge has occurred at any location on a property, that person shall immediately notify [DEP and] the record owner of the property.”
No reporting would be required the inquiry does not find contamination, and the new requirement does not impose any remediation responsibility on the party conducting the inquiry. However, this proposal would eliminate the existing option for a party that finds contamination to simply cease activities related to that site – such as ceasing to consider a purchase or development at the site.
What happen next?
Written comments on this proposal were due by November 20, 2024, and DEP held a public hearing on November 21. Now, DEP is considering whether to finalize its proposal with or without further changes.
If the proposal is finalized in approximately the proposed form identified above, it would apply new responsibilities to entities considering land acquisition. These parties would presumably add contract requirements with site assessment and evaluation firms contracted to perform such inquiries. DEP intends to ensure reporting at more contaminated sites, by eliminating potential purchasers’ option to walk away from contamination. It seems likely that some landowners will continue to hold potentially contaminated properties off the market to avoid this new trigger for reporting and remediation.
Self-assessment checklist
Does the organization own interests in property in New Jersey that may be contaminated, but which has not yet been reported and made subject to remediation?
Is the organization considering acquisition of interest in property in New Jersey for which there is not a reported evaluation determining that the land I not contaminated 9or where reported contamination has been remediated)?
Does the organization participate in property assessment, including assessment that qualifies as “all appropriate inquiry” under New Jersey law?
If any of these apply, does the organization report contamination to the New Jersey Department of Environmental Protection?
Where can I go for more information?
- DEP –
- “Contaminated Site Remediation & Redevelopment (CSRR)” webpage
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com