Panelists
Jorge Berkowitz, Ph.D., LSRP, Jorge H Berkowitz LLC
Steven T. Senior, Esq., Co-Chair, Riker Danzig LLP
Dennis Toft, Esq., Chair, Environmental Group, Chiesa Shahinian & Giantomasi PC
Moderator
Phil Brilliant, CHMM, LSRP, Founder of Brilliant Environmental Services, LLC.
What New Jersey’s Proposed Rule Package Means for LSRPs, Developers & Environmental Counsel
Recapping CPES’s December 2024 Hot Topic Session
Why This Rulemaking Matters
In December 2024 the Continuing Professional Education Services (CPES) “Hot Topic” webinar unpacked the New Jersey Department of Environmental Protection’s (NJDEP) sweeping Site Remediation Reform Act (SRRA 2.0) rule proposal.
Key figures:
- 219-page proposal spanning ISRA, Administrative Requirements for the Remediation of Contaminated Sites (ARRCS), Technical Regulations (Tech Regs) and Heating-Oil rules.
- 70 amendments and four brand-new rules designed to codify guidance and policy that have been accumulating since SRRA’s 2009 launch.
Speakers Phil Brilliant (Brilliant Environmental), Dr. George Burkutz, attorneys Steven Senior (Riker Danzig) and Dennis Toft (Chiesa Shahinian & Giantomasi) highlighted the most consequential changes and the practical risks they create for Licensed Site Remediation Professionals (LSRPs), Potentially Responsible Parties (PRPs) and real-estate stakeholders.
Vapor Intrusion: From Guidance to Regulation
Why it’s big: Vapor intrusion (VI) requirements move out of guidance and into enforceable rule text.
Highlights
| New Element | What It Does | Practical Impact |
|---|---|---|
| Indoor Air Notification Area (IANA) | Similar to a Classification Exception Area (CEA) but for VI. Mandates mapping, sampling, pathway analysis & public notice. | Creates quasi-institutional controls around structures that could see future VI. |
| Vapor Concern Area | Flags soil-gas detections below screening levels that still warrant monitoring. | Triggers long-term VI investigations even where no exceedance yet exists. |
| Universal VI Check | VI must be addressed in every remedial investigation (RI). | LSRPs can no longer rely on “not a VI contaminant” arguments. |
Strategic takeaway: Expect plaintiffs’ counsel and property-value claims to rise once broader, earlier notices go out. Proactive outreach plans and updated pollution-legal-liability (PLL) coverage reviews are essential.
“Any Person” Discharge Reporting — A Legal Wildcard
SRRA 2.0 proposes that any individual with “knowledge” of a discharge must notify NJDEP.
- This language was rejected during the 2020 legislative debate, yet it reappears here.
- If adopted, it could overwhelm DEP hotlines, complicate Phase I/II due diligence and force sellers to disclose or remediate sooner.
Action point: Track comment-period developments; transaction teams may need new contract language and escrow strategies if the clause survives.
Endangered & Nongame Species Screens for Every Remedy
Remediation now explicitly requires evaluating location and timing of activities to avoid harming threatened or endangered species — on-site and on adjacent parcels.
- Reliance on the Landscape Project, Change-model mapping and species-specific experts becomes standard.
- Construction schedules in eagle, bat or blue-mussel habitat may need seasonal windows or DEP extensions.
Remedial Action Permit (RAP) Overhaul
NJDEP, led by section chief Gwen Zervas, proposes five streamlined permit “types” to sort simple from complex cases and cut permit backlogs:
- No engineering control; soils above residential but below non-residential.
- Voluntary presumptive remedy (schools, child-care, residences).
- DEP-approved alternative remedy.
- Historic fill sites with other AOC-specific RAOs in place.
- Ground-water MNA with no receptor impact.
Bonus: A dedicated VI RAP is introduced.
Public-Access Expansion & “Summary Reports”
Municipalities — and any citizen — may demand electronic copies of key remediation documents and DEP correspondence. If a requester prefers, the PRP can supply a DEP-format Summary Report covering:
- Site history & contaminant sources
- Data tables & hotspot maps
- Planned remedies, timelines & interim measures
- Links to online resources
Prepare for periodic updates as new data arrive.
Alternative Fill: “Dirty on Clean” — But Only with Off-Setting Cleanup
- Any reuse of fill (even clean) now requires a Fill Use Plan.
- 25 % Rule: You may import contaminated soil onto an unrestricted site only if you create new unrestricted acreage equal to 25 % of the donor site area.
- All third-party haulers must hold valid A-901 licences under the “Dirty Dirt” law.
Flood-resilience projects that raise grades will feel this acutely given limited supplies of compliant fill.
Time Frames Run with the Site
Statutory and mandatory deadlines transfer to new owners. Buyers must:
- Obtain deadline inventories during diligence.
- File for extensions at least 90 days before any mandatory date.
- Consider a Beneficial Environmental Management Confirmation (BEMC) or modified Administrative Consent Order to reset the clock.
Annulment of RAOs
If an issuing LSRP dies, retires or loses licensure, NJDEP can now annul — rather than rescind — an RAO, clearing the way for a new professional to assume oversight.
What’s Next?
| Milestone | Date |
|---|---|
| Public-comment deadline | 31 January 2025 |
| DEP review & response | Up to one year |
| Earliest adoption / effective date | Q1 2026 (if DEP uses full window) |
- Submit Written Comments – NJDEP is signaling it expects robust feedback; use the extra time to craft data-driven arguments, especially on the “any person” discharge clause and VI/IANA logistics.
- Assess Portfolio Exposure – Map sites against Landscape Project layers, review VI pathways, and inventory outstanding statutory deadlines.
- Educate Your Teams – Share this article and schedule internal briefings so project managers, lenders and counsel know what’s coming.
Need training tailored to your projects? CPES’s 2025 course calendar launches in February, covering SRRA 2.0, VI mitigation design and RAP strategies
Join our mailing list to reserve your seat