This Is How We Do It - New Jersey DEP Proposes Final Rules For Implementing Site Clean-Ups

On August 15, 2011, the New Jersey Department of Environmental Protection (the “DEP”) proposed final rules to fully implement the Site Remediation Reform Act (“SRRA”). The SRRA was enacted in 2009 to ensure the timely remediation of contaminated sites in New Jersey, primarily through the use of private Licensed Site Remediation Professionals ("LSRP"s). The transformation of New Jersey’s remediation program will be complete and the use of LSRPs will be required for all remediation sites (with very limited exceptions) as of May 7, 2012. This extensive rulemaking of almost 1000 pages significantly modifies both the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”) and the Technical Requirements for Site Remediation (“Technical Rules”). The proposal is subject to a 60 day public comment period and a hearing on the rules will be held on September 13, 2011. The complete proposal can be found on the DEP’s website at http://www.nj.gov/dep/rules/notices.html.

These proposed rules represent the culmination of a radical change to how contaminated sites are remediated in New Jersey. If you are responsible for the remediation of sites in New Jersey or otherwise have an interest in such properties (for example, being the successor owner of the property or a lender), it is imperative that you understand the implications of these rules.

Highlights of the proposed rule include:

• All remediation sites must employ an LSRP except (i) RCRA corrective action sites which are listed as 2020 priority sites for which the U.S. EPA is the lead agency, (ii) National Priority List Sites for which the U.S. EPA is the lead agency, and (iii) federal facilities. Proposed N.J.A.C. 7:26C-2.3(a)(1).
• The Technical Rules have been drastically revised to reflect a more performance-based approach rather than the previous prescriptive set of requirements. Many of the previous detailed technical requirements are now contained in various technical guidance documents.
• ARRCS and the Technical Rules establish regulatory and mandatory deadlines for completing remedial investigations and remedial actions. The most stringent deadline for completing a remedial investigation is May 7, 2014 for discharges discovered prior to May 7, 1999 (as required by SRRA). Regulatory deadlines for completing a remedial investigation are generally three (3) to five (5) years depending on the number of environmental media impacted by the discharge. Deadlines for completing a remedial action are generally three (3) to five (5) years from completion of the remedial investigation. Critically, the proposed rules establish a process for extending these deadlines when necessary. The mandatory timeframes are generally two (2) years after the regulatory deadline. Proposed N.J.A.C. 7:26C-3.3(a)(5) and (6). Failure to meet a mandatory timeframe results in a site being placed under direct DEP oversight.
• The proposed rule modifies the existing enforcement rules and application of the Grace Period Rule for minor violations. Generally, the Department has taken a position that since most remediation activities are self-directed under an LSRP rather than under DEP oversight and that the LSRP has greater flexibility in how to implement the remediation, there are significantly fewer violations which are deemed minor and base penalties have be increased to a range of $10,000-$25,000. The risk of such larger penalties is potentially magnified considering that the obligation to perform remediation is now self-implementing and generally self-directed.
• The rule requires facilities subject to the Discharge of Petroleum and Other Hazardous Substances (“DPHS”) Rule to clean-up an discharges in accordance with both the facility’s Discharge Cleanup and Removal (“DCR”) Plan and ARRCS. Proposed N.J.A.C. 7:1E-5.7(a)(2).
• For underground storage tanks, a soil and/or groundwater sample will be required when a photoionization detector (“PID”) reads greater than 50 units. Proposed N.J.A.C. 7:14B-7.2(a)(6).
• For underground storage tanks, delivery prohibitions will be in place if (i) the tank is improperly registered, (ii) undergoing a suspected release investigation, or (iii) known to be leaking. Proposed N.J.A.C. 7:14(B)-5.9(b), 7.1(b) and 7.3(f).
• The process for implementing the requirements of the Industrial Site Recovery Act (“ISRA”) applicable to the closing or transfer of an industrial establishment has been modified to reflect the use of an LSRP. DEP approval will still be required for remediation in progress waivers, regulated underground storage tank waivers, certificates of limited conveyance and de minimis quantity exemptions.
• The proposed rule extensively modifies the public outreach requirements in recognition that the LSRP rather than the DEP will possess most information regarding a contaminated site.
• Proposed N.J.A.C. 7:26C-4 establishes the various fee structures under the Site Remediation Program including annual remediation fees, remedial action permit fees, and oversight fees for sites under direct oversight. The rule purports to establish a process by which the fee structure will cover the DEP’s cost of administering the site remediation program but not exceed it.
• The cost of the operation, maintenance and inspection of engineering controls must be included in calculating any required remediation funding source. Previously, these amounts would only be included in connection with a remedial action permit.
• For sites under direct oversight, the DEP has proposed a mechanism for increasing or decreasing which requirements of direct oversight will apply on a site-by-site basis. Proposed N.J.A.C. 7:26C-14.1.
• The rule proposes specific rules applicable to linear construction projects, such as work in utility easements and rights of ways. Proposed N.J.A.C. 7:26C-16.

*   *   *

If you have any questions regarding these proposed rules, please contact any of the members of Dilworth’s environmental practice group.