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Public Hearing Highlights Regulated Community's Concerns with Proposed NJDEP Hazardous Substance Discharge Prevention Rule Amendments



Public Hearing at NJDEP

The New Jersey Department of Environmental Protection (NJDEP) recently held a public hearing on its proposed amendments to the Discharges of Petroleum and Other Hazardous Substances (DPHS) rules, which aim to strengthen discharge prevention and response requirements for facilities handling hazardous substances. The hearing provided an opportunity for the regulated community to voice concerns and provide feedback on the proposed changes.


One issue raised during the hearing was the complexity of tracking multiple hazardous substance lists from both the EPA and NJDEP. It was suggested that the NJDEP should focus on regulating the single Appendix A list, rather than requiring facilities to navigate multiple lists. This is a heavy burden for facilities, especially those who were previously un-regulated and may be unaware of changes to an EPA list. There were also several requests for the reinstatement of an "upgrades list" to provide clarity on required facility improvements.


A significant concern was the proposed new requirement for facilities to develop a Climate Resiliency (CR) Plan. The regulated community argued that there is no clear legislative mandate or statutory authority under the Spill Act or other state legislation for the NJDEP to require such a plan. While acknowledging the NJDEP's ability to regulate flood hazard areas, attendees questioned the legal basis for mandating climate resiliency planning.


One commenter sought clarification on the implementation expectations for the CR Plan, noting that the preamble suggests there is no requirement to implement the plan's findings. Specifically, the preamble states “The proposed rules do not require the owner or operator to immediately implement mitigation measures. Instead, the Department intends that the proposed requirement to prepare a CR plan will promote resiliency awareness and planning at these facilities." The text of the proposed regulations suggests that facilities will develop measures to prevent discharges and mitigation impacts from climate change “to be implemented and an anticipated schedule for their implementation” created. It is unclear what the Department will determine as “not immediate” however, the commenter argues that the preamble instead suggests that no changes be required.


Concerns were raised about the potential cost of a CR Plan, with the NJDEP estimating that a CR Plan would cost half as much as preparing a DPCC plan. However, it was argued that this estimate is based on the cost of existing plans and may not accurately reflect the burden on facilities for the implementation of a new CR plan. If the CR Plan requirement remains, it was suggested it should be limited to a one-time submission, similar to the Environmental Sensitivity Area (ESA) plan.


Another issue highlighted was the proposed requirement for facilities to list the total number of containers in their DPCC plans. The regulated community argued that this removes flexibility of container type and size, as the total number of containers may not accurately reflect the actual volume of hazardous substances stored. For example, four drums may contain less material than a single tote, but would count as four containers instead of one under the proposed rule.


Finally, concerns were expressed about the structure of penalties in the proposed amended rules. One commenter suggested that that some violations that previously fell under a single fine may now be subject to multiple separate penalties.


Public Comments of this nature are an important element in the partnership between regulators and the regulated community. If you have any questions that were not addressed as part of this public hearing, final comments remain open to submit in written form until July 19, 2024, at which point the Department will review final comments, address changes as needed and begin to finalize the implementation of the new rules.

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