CSG Law Alert: NJDEP Proposes Fumigation Rule with Potential Implications for Commercial Property Owners

We call to your attention NJDEP’s recently proposed amendments to its air regulations which raise questions as to whether fumigation and/or pesticide application operations, such as in office buildings, are to be subject to the detailed requirements of air permitting. Commercial building owners should review these proposed rules with their pesticide and fumigation contractors. If applicable, these rules may require building owners and/or commercial pesticide applicators to obtain an air permit, meet strict reporting requirements, and even install stacks to vent the fumigants. The comment period for this proposal has been extended to June 1, 2021.

By way of background, on March 1, 2021, NJDEP published the proposed rule in the New Jersey Register. The impetus of this rule proposal appears to have been substances used in industrial fumigation operations, including warehouses and commodity storage facilities located in Newark, Elizabeth, and Camden. Specifically, NJDEP proposes to add certain fumigants and other air contaminants to the list of hazardous air pollutants. Regarding fumigation, the proposed rule would require permitting for any fumigation of a commodity or industrial structure that has the potential to emit at a rate greater than 0.1 pounds per hour (45.4 grams per hour), except for certain emergency fumigation operations.

However, the proposed rule appears to apply more broadly and can be read to apply even to commercial fumigation applications using any regulated pesticide or fumigant. Notwithstanding the listing of specific chemical compounds as toxic substances, the term “fumigant” is proposed to be generally defined as “a chemical registered with the EPA as a pesticide under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). The proposed rule defines Group III toxics as “fumigants, including but not limited to” methyl bromide, sulfuryl fluoride, and phosphine. This definition appears to include all fumigants, not just the three specific fumigants of concern, as regulated Group III toxics. As proposed, Group III toxics if emitted at a rate of 45.4 grams per hour, are subject to air permitting requirements. Further, the subchapter governing hazardous air pollutants and toxins would require that emissions to the outdoor atmosphere would be authorized only through a vertical stack that extends above the highest point of the container, roofline, or structure. A health risk assessment for that operation would have to be performed in advance of any fumigation.

The language of the rule raises significant enough questions that it should be reviewed with your commercial pesticide or fumigation professional. Questions such as the emission rate of the pesticide or fumigant used, and its potential to emit into the outdoor atmosphere, should be asked. If there are comments or concerns about the proposal, they should be addressed to the NJDEP by June 1st using this link or via mail to:

Alice A. Previte, Esq.
ATTN: DEP Docket No. 02-21-01
NJ Department of Environmental Protection
Office of Legal Affairs
Mail Code 401-04L; PO Box 402
401 East State Street, 7th Floor
Trenton, NJ 08625-0402

Interested or potentially impacted stakeholders are encouraged to participate in the comment period and should consider evaluating its implications, if enacted in current form, with their advisors and contractors.

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