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NJDEP Policy Changes Create Uncertainty

Posted on December 23rd, 2019

A Final Remediation Document (NFA or RAO) may not be as final as one might think, which creates a cause for concern on finality of case closure, especially with property transactions. The New Jersey Department of Environmental Protection (NJDEP) recently issued several new policies and has increased their depth of review of reports, such as Remedial Action Permit (RAP) applications.  These reviews sometimes challenge professional judgement applied by the LSRP, and additional investigation is sometimes requested by the NJDEP.  This can cause delays to case closure.  Some of the new NJDEP policy changes include the following:

  • NJDEP recently issued a statement clarifying how responsible parties, Licensed Site Remediation Professionals (LSRPs), and NJDEP should view historical No Further Action (NFA) and No Further Investigation (NFI) statements or correspondences made by NJDEP case managers prior to the enactment of the Site Remediation Reform Act (SRRA).

 

  • NJDEP has also issued new policy statements regarding closed cases such as those with restricted use or limited restricted use NFAs or Response Action Outcomes (RAOs) with ongoing permit requirements. Despite these cases being closed, there is a chance this new statement could lead to further investigations or remediation for emerging contaminants of concern.

These recently released rules and policies are examples of ongoing changes in the environmental industry and regulatory landscape in New Jersey.  These updates are intended to ensure cases are properly investigated, prevent short cuts by responsible parties and environmental professionals, and reduce or eliminate new environmental risks that may pose a threat to public health and the environment.  However, these regulation changes can confuse responsible parties, delay and interrupt pending property transactions and make budgeting difficult for clients and involved third parties.

To address some of the uncertainties, a reliable environmental review is highly recommended.  This is especially needed when these instances affect a case closure or threaten a real estate transaction. Undertaking an environmental review prior to initiating real estate transactions, whether you are the buyer or the seller, is recommended.  The seller can benefit by understanding the risk associated with identified issues that might be brought up by a purchaser or their consultant.  In some cases, these issues can be resolved in the early stages or prior to the transactions so they can proceed smoothly.  Knowing the property’s potential issues also allows a buyer to properly assess their level of risk.

Environmental rules and policies are constantly evolving as new concerns and better analytical techniques are developed.  When new chemicals and risks are identified, investigation is needed to acquire information to protect the public and the environment. While no amount of assessment and investigation can guard you and your property from all potential risks, partnering with an environmental consultant who understands the current and potential future issues can allow you to better structure real estate deals and may protect you from purchasing a property with hidden headaches. The team at JMS works diligently and cohesively to stay up to date and aware of the emerging issues in the industry and the NJDEP. We are proud of our client partnerships and look forward to hearing how we can help you.

Alison Kokorsky, LSRP and John Bracken, LSRP

Senior Managers


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