NJDEP Proposes More Lenient Mandatory Timeframes Under SRRA
This is the fourth in a series of Environmental Law Alerts that focus on the recently enacted Site Remediation and Reform Act (“SRRA”) and the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”). The prior three Alerts can be viewed under the "News & Events -- Client Alerts" section of our website or by clicking here. This Alert is intended to highlight recent proposed changes to timeframes within which a person is required to complete certain investigatory or remedial tasks at a contaminated site.
Statutory Sitewide Remedial Investigation Timeframe
SRRA prescribes a statutory timeframe to complete the remedial investigation of the entire contaminated site by May 7, 2014 if remediation was initiated prior to May 7, 2009. If a sitewide remedial investigation is not completed by May 7, 2014, the NJDEP “shall undertake direct oversight of [the] remediation of [the] contaminated site.”
It is important to note that this statutory timeframe can only be changed by the New Jersey State Legislature; at this time, NJDEP has neither the authority to grant extensions nor the administrative discretion to waive enforcement of this timeframe.
Current Regulatory Mandatory Timeframes (Subject to Proposed Extension)
In addition to the statutory timeframe described above, SRRA authorizes the NJDEP to promulgate “mandatory” timeframes within which the “person responsible for conducting the remediation” must complete certain remediation milestones. Note that these mandatory timeframes are subject to a proposed extension of one year as described below. The NJDEP promulgated three categories of “mandatory timeframes” within the interim regulations that became effective on November 4, 2009 as follows:
- Complete a Preliminary Assessment, Site Investigation (as applicable), and an Initial Receptor Evaluation by the later of March 1, 2011, or one year from the date that the person initiates remediation. As described in prior Environmental Law Alerts, it is not necessarily intuitive when a person “initiates remediation” and care should be given when evaluating compliance with these mandatory timeframes.
- Complete delineation of an Immediate Environmental Concern (“IEC”) contaminant source, initiate IEC source control, and submit IEC source control report by the later of March 1, 2011, or one year from the date that the person was required to report the IEC.
- Complete the installation of a light non-aqueous phase liquid (“LNAPL”) free product recovery system, initiate operational monitoring, and submit an interim remedial action report by the later of March 1, 2011, or one year from the date that LNAPL is identified.
Similar to the direct oversight remedy for failure to achieve compliance with the statutory timeframe, the NJDEP is required to assume direct oversight of any case if the person responsible for contamination fails to meet a mandatory timeframe.
What Does It Mean To Be Under “Direct Oversight?”
Quoting the Deputy Commissioner of the NJDEP, “you don’t want to be under direct oversight.”
In essence, if a site is placed under direct oversight, the NJDEP controls the remediation process and determines the remedy selection for the site. Direct oversight also requires the performance of a feasibility study. Finally, the person responsible for conducting the remediation is required to post a remediation trust fund in the amount of the estimated cost of the remediation for which disbursements are subject to the NJDEP’s discretion. In a nutshell, direct oversight could significantly increase the cost to remediate a contaminated site.
These Mandatory Timeframes Are Right Around The Corner!
Since the adoption of the interim regulations on November 4, 2009, and as part of NJDEP’s stakeholder input process over the past year, NJDEP received feedback from the regulated community that there was significant concern with meeting the mandatory timeframes. As a result of this feedback, NJDEP published proposed changes to the mandatory timeframes in the October 4, 2010 New Jersey Register.
What Are The Proposed Regulatory Changes?
The NJDEP has proposed to extend all of the mandatory timeframes by one year so that the mandatory timeframes will be the later of March 1, 2012, or one year from the specified compliance event. The proposed rule changes are subject to a 60-day comment period that ends on December 3, 2010.
The NJDEP also has proposed to amend the definition of a vapor intrusion IEC from a vapor concentration that exceeds the Indoor Air Screening Level to a vapor concentration that exceeds the Rapid Action Levels. This change is anticipated to significantly reduce the number of sites that otherwise would have been categorized as having an Immediate Environmental Concern.
What Happens Until The Proposed Regulations Are Adopted?
Since several current timeframes are anticipated to expire before the proposed regulations are adopted, the NJDEP issued a Compliance Advisory Update in early October 2010 advising that it will not take enforcement action against a person for failure to meet a mandatory timeframe so long as the person meets the proposed mandatory timeframe.
You should consult with your environmental counsel to review your site remediation obligations to make sure that you can achieve compliance with the referenced statutory and mandatory timeframes.
Keep an eye out for the next Wolff & Samson Environmental Law Alert covering additional elements of the SRRA and ARRCS.
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Dennis M. Toft ¦ Member of the Firm ¦ (973) 530-2014 ¦ email@example.com
Robert H. Crespi ¦ Member of the Firm ¦ (973) 530-2060 ¦ firstname.lastname@example.org
Todd W. Terhune ¦ Counsel ¦ (973) 530-2091 ¦ email@example.com