An Expensive Collision Course.
An Expensive
Collision Course.
Renewing Remedial Action Permits & Contaminants of Emerging Concern
A primer on CECs, the costly challenge they create for existing Remedial Action Permits, and the steps that can limit risk and expense.
The Background: A Short Story.
Anyone who frequently works with the New Jersey Department of Environmental Protection (NJDEP, or Department) on compliance-related matters knows that at any point in time, the Department routinely identifies 'hot button' issues upon which to focus. As of 2025, and extending to the present, one of the more prevalent Departmental hot buttons our firm frequently encounters are what are known as Contaminants of Emerging Concern (CECs).
Although CECs have been drifting about on the environmental front in New Jersey for at least a decade, even longer for certain compounds, they have recently become a focal point for the NJDEP when the Department interacts with environmental consultants and Licensed Site Remediation Professionals (LSRPs) investigating properties throughout New Jersey.
First, a primer on CECs is in order.
There are four noteworthy CEC candidate compounds that have been determined to pose a potential environmental or public health risk. One of these CEC groups has been in the news ad nauseam for the past few years, but the others are likely not as familiar. The short list of the NJDEP CECs is as follows.
Per/Poly fluoroalkyl substances — PFAS
You may have likely heard about, and read about, these compounds—this is an umbrella group of 5,000+ man-made chemicals used in a multitude of everyday commercial products, known for their 'slippery/non-stick/non-stain' attributes. The 3 most commonly tracked substances in New Jersey are: PFOA, PFOS and PFNA, but there are literally thousands of other PFAS compounds that are not as well known, or well studied.
1,4 Dioxane
This is a synthetic chemical used as a common commercial/industrial solvent in various manufacturing operations (e.g., adhesives, resins, oils, waxes and the like).
1,2,3 Trichloropropane — 1,2,3-TCP
This is another synthetic and readily available commercial/industrial solvent and paint remover.
Perchlorate
This is a highly soluble oxidizer in a variety of disinfectants, dyes, explosives, fireworks and rocket fuel, among other uses.
These compounds, especially the PFAS constituents, are used in a multitude of everyday products, so they can be quite ubiquitous, and have very low NJDEP cleanup standards, making them expensive to analyze (i.e., laboratory testing costs are higher due to the sophisticated machines needed to test for them, and the relatively low number of laboratories that have the equipment/licenses to test for them) as well as costly to remediate.
A bad combination if you are tasked with looking for, and ultimately cleaning up, these chemicals.
The Need To Assess CECs Now
When They Were Never Required To Be Assessed Before.
Due to both the costs and low cleanup standards, these four CECs, especially the subset of PFAS compounds, are even more problematic for property owners than the standard suite of contaminants that are usually analyzed in real estate transactions and financing, compliance violations and/or environmental litigation cases.
However, this blog shall focus on one particular and topical subset
of
concern—existing Remedial Action Permits (RAPs) for both soil and
groundwater in New Jersey.
How RAPs Monitor Remaining Contamination.
In New Jersey, at sites that have already been remediated, but have legally allowable, remnant soil or groundwater contamination remaining onsite, 'leftover' contamination is captured and monitored by the Responsible Party (RP) and the NJDEP via a RAP, which essentially documents that contamination remains and 'keeps an eye on it, to ensure it doesn't get worse'.
To be sure someone does this, the NJDEP requires this active monitoring be revisited and renewed every two years by the RP (under a document certification to the Department called a Biennial Certification [BC]).
The RAP and the corresponding BC essentially inform and update the NJDEP that the remnant contamination is being properly monitored and is not negatively affecting humans or the environment.
This is pretty standard stuff; RAP BCs have been around for years, and are not particularly controversial.
How Long-Term RAP Costs Are Negotiated.
When remnant contamination legally remains on a property, and that property is sold, most sophisticated Purchase and Sales Agreement (PSA) documents have detailed environmental clauses and conditions relating to which party is responsible for managing and paying for the RAPs and the associated BCs well into the future, many times for years (even stretching into decades) beyond the realty closing date.
The party assuming responsibility for the long-term RAP (commonly the Buyer) also typically uses money set aside in a post-closing environmental escrow account at closing, or alternately uses proceeds saved from the purchase via an environmental set-off to the purchase price. These set-offs and/or escrows are many times sophisticated, detailed, itemized costs compiled to assess potential future environmental monitoring costs, extending many years into the future.
Banks financing a purchase, or under refinancing conditions, also may run into setting aside capital funds/escrows for long-term RAP compliance, especially more sophisticated banks lending on, or using as collateral, contaminated properties.
Again, this is a pretty standard negotiation topic for properties with long-term RAPs; knowledgeable consultants, banks and counsel bake these long-term costs into the transactional or financing deal.
Now for the wrinkle.
The CECs described above were likely never assessed when the soil and/or groundwater RAP was first put in place and associated long-term costs quantified and set aside, years ago, since they were not really on the NJDEP's radar. But they need to be investigated now, since the Department has since shone a spotlight on them, when the RAPs come up for BC renewal. That results in a potentially very expensive problem for people responsible for existing RAPs if these CECs are found to be present and need to be addressed.
Current soil and groundwater RAP BC Forms ask for confirmation that there are no CECs onsite, when these compounds were likely never assessed in the past, especially on older RAPs, filed long before the CECs became a red flag issue to the NJDEP. The older the RAP(s), the less likely the CECs were ever properly assessed.
But they will need to be assessed now, and if present, the costs to remediate and monitor same, which can be substantial, would never have been accounted for in any set-off or escrow negotiation years ago.
The CEC RAP BC Solution:
Proceed in small, definitive steps.
If you find yourself in the process of needing to address the CEC issue during the updated filing of a RAP BC, the matter should be undertaken in small, definitive steps.
If you are already responsible for the RAP.
Begin with a tailored lines of evidence assessment.
The first step in addressing the issue of CECs for existing RAP BCs you are responsible for is to conduct a lines of evidence assessment that will determine if CECs were used onsite. It is important to tailor this study specifically to the open NJDEP Case File of concern (e.g., it is not necessary to conduct a line of evidence assessment for the whole site if the issue is an individual area-of-concern matter or for a partial lease area). Limiting the research to your specific Case File is very important, so you don't investigate areas that are unnecessary to review.
Sample only what is needed.
If, after assessment, it is determined that a full or partial CEC study is needed, it is important to limit the design of the sampling plan to the collection of samples only in the areas and quantities to effectuate a defensible CEC assessment— oversampling is a common problem, and generating more data than you need is usually not a good thing.
Determine who is responsible.
If CECs are identified, it is important to determine if they can be defensibly assigned to the RP, or if there is some other RP to which the CECs can be attributed (i.e., prior RPs, co-mingled plumes and the like).
Establish a new Case File when necessary.
If CECs are identified that require some sort of remedial action, then the most prudent course of action would be to call this newly found issue into the NJDEP Hotline to create a new Case File, which will result in new regulatory compliance deadlines.
If you may be inheriting/assuming someone else's RAP or financing a site with an existing RAP.
If you are assessing a deal whereby you may be assuming responsibility for an existing RAP or have to assess its financial impact (either by company merger, property purchase, financing, loan workout, estate asset distribution, etc.), then the concept of CEC assessment should factor into the financial equation at the time of the deal, since the issue will arise upon the next BC certification, which could occur after the deal is consummated and the financial terms long-since decided.
Questions about CECs or RAP compliance?
If you need further information on any of the issues detailed above, please do not hesitate to contact our office regarding same.
A look at some of our past FPAS articles.
PFAS Remedial Methods: Potable Water, Groundwater & Soils, August 2024
PFAS Regulatory Standards: Water, Soils, Consumer Products, June 2024
PFAS Litigation: Where it’s Gone & Where it’s Going, May 2024
A PFAS Update: The Forever Chemicals, April 2024
PFAS Update: Now Coming to Your Tap, July 2020
New Bane of the Real Estate World: PFAS, April 2020
As always, feel free to contact us if you have any questions about the information presented herein.
Please note, the information provided in this newsletter relating to PFAS and associated compounds is strictly for informational purposes only and should not be construed as recommendations or advice on how to treat, remediate or handle PFAS in any manner; our firm assumes no liability of any kind regarding same.