The New Jersey Assembly Environment and Solid Waste Committee recently approved Assembly Bill No. 3367 which would reverse the decision of the New Jersey Appellate Division in Des Champs Laboratories v. Robert Martin, Docket No. A-3235-10T4, which invalidated the New Jersey Department of Environmental Protection (NJDEP)’s long standing requirement that the owner or operator of an industrial establishment applying for a de minimis exemption from the New Jersey Industrial Site Recovery Act (ISRA) certify to the NJDEP that it does not have actual knowledge of any contamination at the site above remediation standards.
Currently, the owner or operator of an industrial establishment may apply for an exemption from ISRA when transferring or closing an industrial establishment, so long as the owner or operator’s use of hazardous substances at the site never exceeded certain de minimis levels. The Appellate Division invalidated NJDEP’s further requirement that an exemption applicant certify that, to the best of its knowledge, the property where de minimis quantities of hazardous substances had been present is not contaminated above levels established by the NJDEP. Although the Appellate Division concluded that NJDEP’s certification of no contamination requirement was ultra vires and invalid, it did not close the door on the New Jersey legislature stepping in to remedy the law.
“In particular, nothing in this opinion precludes the passage of amended legislation that would explicitly and unambiguously require a[n] . . . applicant to certify that its property is now ‘clean’ before closure or sale, or, at the very least, make clear that the Department is authorized to adopt and enforce regulations imposing such significant obligations,’’ the opinion stated.
Assembly Bill No. 3367 would reinstate the invalidated regulatory requirement by expressly providing that, in order to qualify for the de minimis exemption from ISRA, the owner or operator of an industrial establishment would be required to certify to the NJDEP that it does not have actual knowledge of any contamination at the industrial establishment above remediation standards.
Our office represented Intervenor property owner R&K Associates, LLC in the Des Champs v. Martin appeal.
If you have any questions about the proposed legislation or would like to discuss how it may impact your operations, please contact John M. Scagnelli or the Scarinci Hollenbeck attorney with whom you work.
