September 2, 2009 Deadline for Public Notification of Ongoing Remediation
The deadline is fast approaching for parties performing remediation, that were in the Remedial Investigation phase as of September 2, 2008, to comply with the recently enacted New Jersey Department of Environmental Protection ("NJDEP") regulations concerning public notification requirements. With few exceptions, by September 2, 2009, all persons responsible for conducting a remediation must provide enhanced notification and outreach for new and on-going remedial work conducted at contaminated sites. Failure to comply with the notice requirements could result in penalties of up to $8,000 a day.
At least two weeks prior to initiation of any field activities associated with a remedial investigation or the initiation of a single-phase remediation, the person responsible for conducting the remediation must notify the public by either (1) sending notification letters to property owners and tenants within 200 feet of the site boundary and the administrator of every school and child care facility within 200 feet, or (2) posting a sign on the property until a No Further Action letter (or presumably, a Response Action Outcome under the new Site Remediation Reform Act) is issued. Alternatively, a
person can petition the NJDEP for approval to conduct a different method of public notification in cases where the remediation is being conducted under a statutory scheme that already provides for public notice and outreach.
If the person responsible opts to provide notice by letter, the letter must be sent by certified mail, and must also be sent to the NJDEP case manager, the NJDEP Office of Community Relations, the municipal clear, and the designated local health official. The letter must be written in English and the language predominantly spoken in the area. Follow-up letters must be sent two weeks prior to any field activities and every two years thereafter.
If the person responsible chooses instead to provide notice by sign, the sign must be at least 2' x 3', readable from the nearest street or sidewalk, and legible at all times. The rules dictate the wording required for the sign, which includes contact information for the person responsible for conducting the remediation. A photograph of the sign must be submitted to the NJDEP in both hard copy and electronic format.
In connection with the public notification whether by letter or sign - the person responsible must also identify sensitive populations and resources located within 200-feet of the site. Sensitive populations and resources include residences, potable wells, public and private schools, child care facilities, public parks and playgrounds, surface water bodies, and Tier 1 well-head protection areas. Environmental Justice areas within the municipality must also be identified. A map depicting the locations of the sensitive populations and resources must be provided to the NJDEP. This must all be completed and submitted to the NJDEP by September 2,2009.
There is an additional requirement where contamination has migrated off-site. Within two weeks of determining that contamination has migrated off-site, the person responsible must complete a fact sheet that includes, among other things, the industrial history of the site, the contaminants of concern, the affected environmental media, contaminant concentrations, and the source of contamination. The fact sheet must be distributed to owners and tenants within 200-feet of the site and must be published as a display advertisement in a local daily or weekly newspaper. The fact sheet must also be updated and redistributed within four weeks after the vertical and horizontal extent of the contamination has been delineated. If contamination has already migrated off-site, the fact sheet must be distributed by September 2,2009.
A person responsible for conducting remediation should determine well in advance whether notice by letter or notice by sign is more consistent with the person's interests. Where the person responsible for the remediation does not have exclusive access rights to the property, sales agreements, leases and other agreements should also be reviewed to determine whether posting a sign is an available option. Also, although the rules prescribe the language necessary for the notification letter and signs, other language can be added. The person responsible can take advantage of this by providing additional information to ease public concerns. An additional consideration is that the contact person disclosed to the public should be someone that is trusted and prepared to answer questions. Anyone conducting remediation should consider the impacts of the notification requirements to determine which notification option best complies with the legal requirements while simultaneously maintaining a good relationship with the
For more information, please contact: Dennis M. Toft at (973) 530-2014 or via email at firstname.lastname@example.org; Robert H. Crespi at (973) 530-2060 or via email at email@example.com; John A. McKinney at (973) 530-2036 or via email at firstname.lastname@example.org; Laurie J. Sands at (973) 530-2098 or via email at email@example.com; Lee Henig-Elona at (973) 530-2178 or via email at firstname.lastname@example.org; Diana L. Buongiorno at (973) 530-2075 or via email at email@example.com; Todd Terhune at (973) 530-2091 or via email at firstname.lastname@example.org; Daniel T. McKillop at (973) 530-2066 or via email at email@example.com; and Joshua M. Levy at (973) 530-2067 or via email at firstname.lastname@example.org.
This Client Alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your specific situation or any legal questions you may have.