There is a proposed amendment A-3367 to the Industrial Site Recovery Act ("ISRA") N.J.S.A. 13K-1 et seq. that would require an owner or operator of an industrial establishment applying for a De Minimis Quantity Exemption ("DQE") to not only certify that its use of hazardous substances fall within the de minimis levels but also that it has no “actual” knowledge that contamination is present at the industrial establishment above the remediation standards. This bill will be tracked to see whether the obligation changes from “actual” knowledge to a more affirmative obligation like the performance of a Preliminary Assessment Report as it moves through the legislature.
This bill is in response to the decision in De Champs Laboratories Inc. v. Martin (App. Div. Docket No. A-3235-10T4) whereby the Appellate Division held that NJDEP acted beyond its legislative delegated powers by forcing an applicant "to provide a certification that the property is free of contamination before its operations can be closed or title to its property transferred."
The proposed amendment may have negative impacts to owners of industrial or commercial properties and their current or prospective tenants that would otherwise be eligible for a DQE but would be prevented to do so because the property has known contamination left in place pursuant to NJDEP approved engineering and institutional controls. As this bill moves through the legislature it will be important to see if there will be any further amendments excusing sites with known pre-existing contamination that is being managed by NJDEP remediation technologies. If not - this bill may significantly reduce the number of parties eligible to use a DQE as a mechanism to satisfy the requirements of ISRA.