NJDEP Publishes New Regulations to Implement the Site Remediation Reform Act
February 8, 2010
As previewed in a prior Wolff & Samson Environmental Law Alert, on May 7, 2009, New Jersey Governor Corzine signed into law the Site Remediation Reform Act (“SRRA”), which introduced sweeping changes to the process by which sites are cleaned up in New Jersey. As required by the SRRA, the NJDEP adopted the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”), which are the regulatory provisions that implement the SRRA and which became effective as of November 4, 2009. This Environmental Law Alert continues a series of Alerts concerning the SRRA and highlights important provisions prescribed by the ARRCS.
Do I Need an LSRP?
Any person who “initiates” remediation at a property in New Jersey on or after November 4, 2009, is required to hire a Licensed Site Remediation Professional (“LSRP”) to oversee the cleanup of the property. For remediation that was initiated prior to November 4, 2009, the person responsible for the remediation may elect to hire an LSRP to oversee the cleanup of the property but is not required to hire an LSRP until May 7, 2012.
It may not be intuitive as to the date a person “initiates” remediation. For instance, any person who assumes the remediation from another person after November 4, 2009, “initiates” remediation and must hire an LSRP even though the prior person may have been in compliance with its cleanup obligations under NJDEP’s oversight. This is an important issue for parties to consider since the party that assumes a remediation obligation also assumes the mandatory timeframes (further described below) that applied before the remediation obligation was transferred.
Another consideration of whether to “opt-in” to the LSRP program for an on-going remediation is the degree to which the prior work complied with the strict technical requirements. In the past, a consultant would serve not only as a technical professional but also as a client advocate with respect to the scope of investigation and remediation, leaving NJDEP as the final arbiter. Now, with his or her license at stake, an LSRP may need to take a more conservative approach in his/her decision-making and, perhaps worse, may not be willing or able to adopt previously submitted conclusions. This could pit consultants against each other and potentially against their own clients.
In addition to certain regulatory timeframes established by the Industrial Site Recovery Act (“ISRA”) and other regulatory mechanisms, NJDEP has established mandatory timeframes that require certain remediation activities be completed within one year after a person assumes the remediation from any other person, discovers or becomes liable for a discharge, or becomes liable for compliance with ISRA. (However, if remediation was initiated prior to November 4, 2009, these tasks must be completed by March 1, 2011.) The applicable activities are as follows:
- Complete a Preliminary Assessment (“PA”), Site Investigation (“SI”) (as applicable), and Receptor Evaluation (“RE”). It is important to note the regulatory timeframe under ISRA for submitting a PA is the later of June 1, 2010, or 90 days after submission of the General Information Notice (“GIN”); for submitting an SI, it is the later of November 26, 2010, or 270 days after submission of the GIN; and for submitting the RE, it is November 26, 2010;
- Complete delineation of an Immediate Environmental Concern (“IEC”) contaminant source (discussed further below); and
- Complete the installation of a light non-aqueous phase liquid (“LNAPL”) free product recovery system and submit an interim remedial action report. It is important to note that the regulatory timeframes to initiate recovery of free product and to complete installation of a free product recovery system are 60 days and 270 days, respectively, after the later of March 1, 2010, or the date that LNAPL is identified.
Failure to meet a mandatory timeframe subjects a person to substantial penalties and direct oversight by the NJDEP; failure to meet a regulatory timeframe subjects a person to penalties as well.
Immediate Environmental Concern
The NJDEP substantially expanded the definition of Immediate Environmental Concern to include the following:
- Contamination in a well used for potable purposes at concentrations at or above the Class II ground water remediation standards;
- Contamination in indoor air at a level greater than any vapor intrusion indoor air screening level described in the NJDEP’s Vapor Intrusion Guidance; or
- Any other condition that poses an immediate threat to the environment or to the public health and safety as described in NJDEP’s IEC guidance.
Importantly, the person responsible for conducting the remediation that identifies an IEC is required to immediately notify the case manager (if one has been assigned) or the NJDEP hotline number. In addition, this person must adhere to the following timeline:
Within 5 days after identifying the IEC:
- provide bottled water to the residents of each property where contaminant concentrations exceed any remediation standard for Class II ground water
- mitigate the infiltration of vapors into structures impacted by vapor intrusion
- restrict access to soil contaminated above acute levels
- submit to the NJDEP an IEC Response Action form and an IEC Information Spreadsheet
- submit to the NJDEP and the New Jersey Department of Health and Senior Services the analytical results from all indoor sampling
Within 60 days after identifying the IEC:
- provide water treatment or an alternative water supply to each property where contaminant concentrations in its potable well exceed any remediation standard for Class II groundwater quality
- install a vapor mitigation system at each property where contaminant concentrations exceed any applicable vapor intrusion indoor air screening level
- reduce exposure to contaminants or hazardous conditions to acceptable levels
The person responsible for conducting the remediation shall also:
Within 120 days after identifying the IEC:
- submit an IEC engineered system response action report with an updated IEC Response Action form
Within 270 days after identifying the IEC:
- initiate control of the IEC contaminant source, complete delineation of the IEC contaminant source, and submit an IEC contaminant source control report and an updated IEC Response Action form.
Given that indoor air screening levels are relatively low, parties should be prepared to respond to the regulatory and mandatory IEC timeframes upon receipt of indoor air quality data.
The SRRA and ARRCS present many challenges (and opportunities) as the regulated community begins to navigate the new site remediation landscape in New Jersey. Buyers, sellers and other interested parties are urged to make sure that the regulatory and mandatory timeframes are being met to avoid enforcement, and to exercise continued caution when negotiating agreements concerning contaminated properties in New Jersey.
For more information, please contact: