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Remedial Investigation Deadline Rapidly Approaching - Are You Ready?

October 16, 2013

In the nearly five years since the Site Remediation Reform Act (the “Act” or “SRRA”) was signed into law on May 7, 2009, there have been many changes in the way site cleanups are implemented and administered, principally due to the advent of the Licensed Site Remediation Professional (“LSRP”) program. Numerous New Jersey Department of Environmental Protection (“NJDEP”) guidance documents have been issued and re-issued, interpreting the Act and its implementing regulations. However, one constant has been the looming May 7, 2014 statutory deadline to “complete the remedial investigation” for “the entire contaminated site” in cases where the discharge of contamination was discovered (or should have been discovered) prior to May 7, 1999.

In response to the continuing avalanche of queries from the regulated community, the NJDEP issued a policy statement on its interpretation of this statutory deadline in June 2013. The policy statement indicates that the LSRP plays a significant role in determining whether the deadline has been met and may use his or her professional judgment (along with regulations and guidance) to determine when sufficient information exists to demonstrate that the remedial investigation is complete. If your LSRP has not yet deemed your remedial investigation to be complete, now is the time to map out a strategy to achieve compliance with this rapidly approaching deadline.

What does the May 7, 2014 deadline apply to?

Subject to few exceptions, the remedial investigation must be complete by May 7, 2014 for (a) all discharges/contaminated areas of concern (“CAOCs”) at the site where the contamination was identified on or before May 7, 1999; and (b) according to the NJDEP’s policy statement, all discharges/CAOCs at the site where the contamination should have been identified due to an obligation to complete a preliminary assessment and/or site investigation on or before May 7, 1999, pursuant to the Industrial Site Recovery Act regulations, the Underground Storage of Hazardous Substances regulations, an Administrative or Court Order, Remediation Agreement, or a Spill Act Directive.

What does “entire contaminated site” mean?

According to the NJDEP’s policy statement, the "entire contaminated site" means all portions of environmental media (e.g., soil, ground water, surface water, sediment and air) and any location where contamination is emanating, or which has emanated there from, that contain one or more contaminants at a concentration above any remediation standard or screening criterion. In other words, if the contamination has migrated to an adjoining property, the remedial investigation must extend to that adjoining property, which will require either the cooperation of your neighbor to grant you access or a court order to obtain access.

What does “complete the remedial investigation” mean?

According to the Act and the policy statement, a remedial investigation can be considered complete when the LSRP in his or her professional judgment can conclude (1) there is sufficient information to know the “nature and extent of a discharge of a contaminant” both on and off site, (2) there is sufficient information to know which, if any, receptors have been or may be impacted by the discharge being remediated, and (3) additional delineation is not necessary in order to select appropriate remedial action(s) to protect public health and the environment.

What happens if I miss the May 7, 2014 deadline?

Failure to meet the deadline subjects the person responsible for conducting the remediation to “direct oversight” by the NJDEP, which likely will prove to be a significant regulatory, and perhaps financial, burden for the remediating party. Since the deadline is statutory, the NJDEP has no discretion or authority to extend the deadline or to ignore the obligation to assume direct oversight. For sites that are subject to direct oversight, SRRA obligates the NJDEP to, among other requirements, review all technical submissions, select the remedial action for the site, and require a remediation funding source in the form of a trust fund (i.e., cash escrow) in the amount of the estimated cost of remediation.

Don’t I still have plenty of time to finish the remedial investigation?

There may be several hurdles that you will face to complete the remedial investigation before May 7, 2014. Wintertime weather delays, driller, consultant and LSRP availability, and the time it takes to perform routine field sampling, laboratory analysis, and data review and analysis will affect the timing of your investigation. We are already noticing that drillers have to schedule work further out than usual and laboratories are predicting a backlog in turnaround times. One of the most significant hurdles, however, could be obtaining off-site access. If contamination emanating or originating from your site extends beyond your parcel, you will need to obtain access from your neighbor(s) to fully delineate the contamination, which may prove to be a challenging process. Although there is a summary court proceeding available to obtain access, it requires that two notices be mailed to the nearby property owners, with a minimum 30-day wait period. Whether access is given is ultimately subject to the discretion of the Court and is further subject to appeal.

Is there a way to confirm that I have completed the remedial investigation?

If you believe that the remedial investigation was previously completed or that the discharge occurred after May 7, 1999, the NJDEP has created the “May 7, 2014, Remedial Investigation Complete Supporting Documentation Form,” which can be submitted to the NJDEP together with the appropriate documentation. If a remedial investigation report was submitted to the Department prior to May 7, 2012, documenting that the remedial investigation is complete but no response was received from the NJDEP by May 7, 2012, then an LSRP is required to review the remedial investigation report, and certify and submit a Remedial Investigation Report Form to the NJDEP.

The May 7, 2014 deadline is uncharted ground for the NJDEP. It is not clear how the NJDEP intends to carry out its direct oversight obligations, but suffice it to say that you don’t want your site to serve as the example. While there is chatter that the New Jersey State Legislature may be considering a statutory extension to the current deadline, there are no guarantees that the Legislature will act.

For more information, please contact:

Dennis M. Toft | Co-Chair, Environmental Group | | (973) 530-2014
Todd W. Terhune | Counsel | | (973) 530-2091
C. Nicole Sullivan | Associate | | (973) 530-2059