On Monday, May 20, 2024, the New Jersey Department of Environmental Protection (NJDEP) published proposed new rules and amendments to N.J.A.C. 7:1E, Discharges of Petroleum and Other Hazardous Substances. The proposed amendments seek to clarify various portions of the existing regulations, including modifications to what constitutes a hazardous substance, nominal concentrations in mixtures, frequency of submission, and much more. Additionally, NJDEP is proposing new requirements as part of the Discharge Prevention Containment and Countermeasure (DPCC) and Discharge Cleanup and Removal (DCR) plans, such as the inclusion of a Climate Resiliency Plan (CR). 

An overview of the proposed amendments and new rules are detailed below in the following sections. Comments are being accepted electronically through July 19, 2024 here. NJDEP will be hosting a virtual hearing on Tuesday, June 11, 2024 at 9:00 AM.

A facility is currently subject to the DPHS regulations if they meet the definition of a “major facility”. A major facility most commonly includes “all facilities, located on one or more contiguous or adjacent properties owned and/or operated by the same person, having [a] total aggregate, combined storage capacity of:

As it stands, a listing of all hazardous substances to be considered is included in Appendix A of the proposed updates. Trinity’s New Jersey office has vast experience supporting clients with their compliance requirements as they relate to hazardous substances. Through this experience, it has been understood that any concentration of a hazardous substance within a mixture qualifies the entire mixture as a hazardous substance. Therefore, that mixture must be accounted for in the total storage capacity during evaluation of meeting the major facility definition. 

Under the current regulation, subject facilities must renew their DPCC and DCR plans every three years, via both electronic and hard copy. 

While there are a multitude of changes proposed, several of the changes appear much more significant in terms of the potential impact on the regulated community. This includes:

The existing rule defines a “hazardous substance” as all substances listed in Appendix A of the rule. The proposed amendments seek to expand this definition to include all hazardous substances regulated under the Spill Act (N.J.S.A. 58:10-23.11b). Essentially, if the Environmental Protection Agency (EPA) were to include new hazardous substances under the federal statutes as listed in N.J.S.A. 58:10-23.11b, those substances would automatically be rolled into the DPHS regulations. Similarly, should the EPA remove a substance, this substance would also be removed from the New Jersey regulations for consideration as a hazardous substance.  The amendment also seeks to add 263 substances, of which 262 are regulated under the Community Right to Know (CRTK) program, along with 172 PFAS chemicals, of which 159 of those are from the updated Toxic Release Inventory (TRI) list. Additional updates would include the correction of various CAS numbers, and the removal of non-hazardous substances regulated under the Spill Act such as saran, and PVC.

Most notably, the Department is proposing a nominal concentration and subsequent request for facilities that become major due to a percentage of a mixture being hazardous. The owner or operator of a major facility may submit a nominal concentration request to NJDEP if the concentration of hazardous substance within a mixture is less than 1% of the mixture, OR less than 0.1% of the mixture if the hazardous substance is a carcinogen. The Department will only approve a nominal concentration request if the quantity of the nominal mixtures, when subtracted from the aggregate storage capacity of all hazardous substances at the facility, brings the overall combined total storage to below the major source threshold. Facilities that are granted approval of this request may submit an abridged DPCC and DCR plan within 180 days of approval. 

In addition to the changes listed above, NJDEP is proposing several additional rules that may impact your facility if you are subject to DPHS. Specifically, the rule proposal details a new requirement, the Climate Resiliency (CR) Plan. Facilities subject to DPCC and DCR would have to prepare and submit a CR plan that will address climate change considerations as a part of the Discharge Prevention and Response.  The CR plan must include items such as evaluating rising sea levels, increased rainfall, extreme weather events, increased flooding and the identification and consideration of potential protections against discharges that may be caused by these events. A sea level rise projection map at various increasing feet above sea level would also be required upon approval of the proposed rule. 

The proposed changes to this rule may have a significant impact on any major facility under DPHS with the potential addition of the CR Plan and the expansion of the hazardous substance list. By re-defining a hazardous substance, which includes a large number of new chemicals, facilities for which this rule was previously not applicable now have the potential to be considered subject. Trinity is still reviewing these proposed changes, you can read them in full here.   

If you are a major facility under N.J.A.C. 7:1E, or if you would like to discuss how this proposal may impact your facility please contact Trinity’s Princeton office or call 609.318.5500.