One of the most significant revisions makes it more difficult for corporate officials to avoid personal liability for contamination/site cleanups. More specifically, the DEP has explicitly added “responsible corporate official,” which includes LLC managing members and partnership general partners, to the definition of “person” for site remediation enforcement. As amended, N.J.A.C. 7:26C-1.3 now states:
“Person” means any individual or entity, including, without limitation, a public or private corporation, company, estate, association, society, firm, partnership, joint stock company, foreign individual or entity, interstate agency or authority, the United States and any of its political subdivisions, the State of New Jersey, or any of its political subdivisions, or any of the other meanings which apply to the common understanding of the term. “Person” shall, for the purpose of enforcement, also include a responsible corporate official, which includes a managing member of a limited liability company or a general partner of a partnership.
As explained by the DEP in response to public comments about the amendment, its intent in proposing the amendment was to “make it clear, consistent with New Jersey case law, that corporate officials, members of limited liability companies, and general partners who, by reason of their position in the business entity, have the actual authority and control to have prevented or corrected a specific violation, but fail to do so, are subject to enforcement.” The DEP further advised that “[w]hether a particular corporate official is a ‘responsible corporate official’ with respect to a particular violation is a fact-specific determination, and the Department will continue to bear the burden of demonstrating in an enforcement action that an individually-named corporate official should be considered a ‘responsible corporate official’ under the facts of that case.”
Additional Site Remediation Changes
The DEP also adopted amendments to the Discharges of Petroleum and Other Hazardous Substances (DPHS) rules (N.J.A.C. 7:1E); New Jersey Pollutant Discharge Elimination System (NJPDES) rules (N.J.A.C. 7:14A); Underground Storage Tanks (UST) rules (N.J.A.C. 7:14B); Industrial Site Recovery Act (ISRA) Rules (N.J.A.C. 7:26B); Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) (N.J.A.C. 7:26C); and Technical Requirements for Site Remediation (Technical Requirements) (N.J.A.C. 7:26E).
Below are several notable changes:
DPHS Rules: The DEP now gives “major facilities” (i.e. facilities that store a certain amount of hazardous substances) the option to address a discharge according to either the discharge cleanup and removal plan, which does not require the retention of a Licensed Site Remediation Professional (LSRP)), or according to ARRCS, which requires the retention of an LSRP to oversee the remediation. However, in the event that the response under a discharge cleanup and removal plan is insufficient to remediate the discharge, the DEP reserves the authority to order the facility to hire a LSRP to conduct the remediation.
NJPDES Rules: NJPDES Rules allow certain groundwater discharge, resulting from site remediation, to occur without a permit, authorized under a permit-by-rule. The amended rules further clarify the activities that are eligible for a permit-by-rule. They also outline the process for obtaining the NJDEP’s written approval for such a discharge.
UST Rules: The new rules require the owner or operator of an underground storage tank to prepare and submit a response action outcome (RAO), prepared pursuant to ARRCS, to the DEP along with the site investigation report, even if the owner or operator concludes in the site investigation report that no further remediation is required.
ISRA Rules: The amended rules clarify the timeframe by which the person responsible for conducting the remediation (PRCR) at an ISRA site must establish a remediation funding source (RFS) so as to not conflict with the Brownfields Act. Under the amended rules, the PRCR must establish an RFS within 14 days after the DEP receives the remedial action work plan. In response the Appellate Division’s decision in Des Champs Laboratories, Inc. v. NJDEP, the DEP also amended the de minimis quantity exemption to no longer require applicants to certify to the best of their knowledge that their properties are free from contamination.
Remediation of Heating Oil Tank Systems
The DEP also adopted new Heating Oil Tank System Remediation Rules, which address the closure of heating oil tank systems, and remediation of discharges from those systems. Given that the majority of heating oil tank systems (HOTS) are owned by homeowners, the NJDEP thought it helpful to streamline the rules and put them all in one place.
The new chapter (N.J.A.C. 7:26F) consolidates rules concerning remediation of discharges from both residential and small, non-residential heating oil tank systems, which were previously unregulated. Accordingly, the term “heating oil tank systems” means residential above ground or underground heating oil tank systems, and small, non-residential above ground or underground heating oil tank systems.
The new Heating Oil Tank System Remediation Rules mandate that HOTS owners retain a certified subsurface evaluator or an LSRP to address discharges within two business days after discovering a discharge. They further address the closure and removal of the heating oil tank system, removal of any free product, investigation of the extent of the contamination, and remediation of the groundwater and soil to an appropriate standard. At the end of the remediation, the rules require the environmental professional to submit a remedial action report to the DEP that shows that the remediation activities meet the rule requirements. Once the Dep concludes that the remediation is complete, it will issue a “heating oil tank system no further action letter.”
Notably, the Heating Oil Tank System Remediation Rules contain a small quantity exception, which can be extremely advantageous to owners dealing with small quantities of residual contamination in places where it is impractical to further remediate. The exception allows an owner, with the agreement of the property owner, to leave less than 15 cubic yards of residual contamination under a residential building on the residential property where the discharge occurred, with neither a deed notice, nor a soil remedial action permit, under specific circumstances.
Key Takeaway
This article only highlights some of the DEP’s most significant regulatory changes. If you are currently involved in site remediation, you should review the amendments to determine whether they may impact your obligations. As always, the Scarinci Hollenbeck Environmental Law Group is available to answer your questions and discuss any concerns you may have.
If you have any questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact us at 201-806-3364.
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