• Key Components of the Interim Regulations Adopted Pursuant to the Site Remediation Reform Act
  • January 28, 2010
  • Law Firm: Riker Danzig Scherer Hyland & Perretti LLP - Morristown Office
  • The changes to the site remediation program in New Jersey resulting from the SRRA have been described by the NJDEP as a "new world order." Most notable is the Licensed Site Remediation Professional (“LSRP”) Program whereby the NJDEP will have a limited role in the vast majority of cleanups. Instead, private LSRPs will oversee the work. In lieu of NJDEP-issued no further action letters (“NFAs”), the new LSRPs will issue Response Action Outcomes (“RAOs”) certifying that the investigation and cleanup of contaminated sites have been completed in accordance with state standards.

    On November 4, 2009, an extensive regulatory adoption was simultaneously published and went into effect addressing not only how the LSRP program will work, but also providing administrative and substantive requirements that now apply to all site remediation cases. Procedurally, the adoption of the interim rules was unique. Adopted without notice and comment, the rules became effective immediately upon filing with the Office of Administrative Law, even before their publication in the New Jersey Register on December 7th. The interim regulations will be in effect for 18 months (i.e., until May 4, 2011), within which time NJDEP will propose them for readoption and provide an opportunity for public notice and comment.

    With limited exceptions, any parties "initiating" a site remediation on or after November 4, 2009 must hire an LSRP to oversee the case, and NJDEP will no longer provide full departmental oversight or issue no further action letters for those cases. Initiating remediation includes starting or resuming a remediation in response to one of the following: taking over the remediation from someone else, discovering or becoming liable for a discharge, or where activities at a site result in the need to file a new deed notice. A new limited class of "direct oversight cases" remains subject to full NJDEP oversight with new and more stringent requirements, including NJDEP's use of funds provided by the responsible party to perform the remediation and NJDEP's selection of the remedial action. Pre-existing cases may continue under the old NJDEP oversight scheme without an LSRP until May 7, 2012; however, many of the other administrative and substantive provisions of the rules apply now to those cases. The new regulations allow existing cases to "opt-in" to the LSRP program, with NJDEP approval, at any time prior to the May 2012 deadline. Many factors, including the current stage of remediation, will impact the strategic decision for existing cases as to whether to opt-in to the new LSRP program.

    The Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”), replace NJDEP's old Oversight Regulations and govern all administrative aspects of site remediation. Of special importance are provisions that define the obligations of the person responsible for conducting the remediation, provisions setting forth mandatory remediation timeframes, and provisions concerning the issuance (as well as the modification, rescission and invalidation) of final remediation documents (i.e., NFAs and RAOs). The ARRCS also contain provisions establishing a new permit program that is required for all remedial actions that employ institutional or engineering controls or operation and maintenance systems. Also of note are rules providing for new annual case fees that replace the previous NJDEP oversight cost system. The ARRCS rules contain provisions modifying the Grace Period rules designating violations as minor or non-minor as well as the penalty amount for noncompliance with hundreds of specific regulatory requirements.

    The interim regulations also make significant modifications to the NJDEP's technical regulations that apply immediately to all sites. Receptor evaluations are required at all sites at the beginning of each case and must be updated throughout as necessary. Regulatory timeframes, in addition to the mandatory timeframes, apply. For properties where there will be a sensitive use such as schools, day care centers and residential properties, presumptive remedies must be used, unless NJDEP approves an alternative remedy.

    As an example of how the new requirements would apply to an existing case, within one year all existing cases that have already submitted a Site Investigation Report must perform an initial receptor evaluation, which includes identifying the location of day care centers and schools within 200 feet of the site and performing any required vapor intrusion investigation in structures located within 100 feet of a volatile organic compound (“VOC”) groundwater plume. Failure to perform an initial receptor evaluation is a non-minor violation subject to a $20,000 per day penalty. Continued failure to complete the initial receptor evaluation within the mandatory timeframe of March 2011, without an approved extension from NJDEP, will subject the case to the new direct oversight program. Thus, an existing case that has not completed its receptor evaluation by November 4, 2010, the regulatory timeframe, is subject to a $20,000 per day penalty with no grace period. If the evaluation is still not complete by March 2011, then there is an additional $20,000 per day penalty and the case comes within the direct oversight program for failure to comply with a mandatory timeframe.

    Given the breath and extent of the changes and new requirements in the interim rule adoption, all practitioners' cases should carefully consider their impact, whether for an existing case or a new one.