• The New Permit Program under SRRA
  • January 28, 2010
  • Law Firm: Riker Danzig Scherer Hyland & Perretti LLP - Morristown Office
  • Although a central tenet of the SRRA is to invest LSRPs with oversight activities traditionally within the purview of the NJDEP, the Department retains control of several aspects of remedial activities including administration of the new remedial action permit program. The SRRA itself authorizes NJDEP to "establish a permit program to regulate the operation, maintenance and inspection of engineering or institutional controls and related systems installed as part of a remedial action of a contaminated site." Prior to the SRRA, the Department required a biennial certification for engineering and institutional controls, which included a certification that reported on the monitoring, inspection and maintenance of such controls. Regulations issued on November 4, 2009 by the ARRCS have tweaked NJDEP's permitting program in several ways.

    Generally, ARRCS gives NJDEP the authority to issue soil remedial action permits and groundwater remedial action permits. Specifically, NJDEP will issue a "remedial action permit" when it receives, after January 15, 2010, either of the following: (1) a properly recorded deed notice and Soil Remedial Permit Application Form, or (2) a groundwater work plan that includes either natural attenuation, an engineering control or requirements for monitoring, maintenance and evaluation of any institutional or engineering control as part of a remedial action. Furthermore, as existing biennial certifications come due, they will be converted into remedial action permits.

    Permit holders shall be obligated to comply with all maintenance, monitoring and evaluation requirements contained in a remedial action permit, as well as prepare and submit biennial certifications every two years. The permittee also must comply with conditions contained in any deed notice, any remedial action work plan or report approved by NJDEP or an LSRP or well restrictions associated with a classification exception area and "[a]ll other conditions that the Department includes" in the remedial action permit. It is unknown what other conditions the NJDEP could impose on the permit holders through the somewhat open-ended authority to include "all other conditions" it deems appropriate, but the authority appears broad.

    Perhaps the most significant change is that the NJDEP will require establishment and maintenance of financial assurance for all remedial action permits that include engineering controls for an amount equal to "an estimate of the future costs to operate, maintain, and inspect all engineering controls part of any remedial action at the site[,]" to guarantee the permittee's performance until the Department terminates the permit. In other words, the permit holder must establish a funding source for as long as it takes to maintain the engineering control. Such an obligation could exist, at a minimum, for several years, in the case of a groundwater pump and treat system. Although the NJDEP may always have had the authority to require some sort of financial assurance, in practice the Department rarely enforced this requirement and this obligation has now been established by regulation.

    Subject to certain limited exceptions, persons who require institutional or engineering controls as part of a soil or groundwater remediation must obtain a remedial action permit. The new permitting scheme requires that a remedial action permit be obtained by any "owner" of a contaminated property when an engineering or institutional control or operation and maintenance requirement for a remedial action is implemented, and by each "subsequent owner, operator and tenant" during that person's ownership or operation. Thus, the permitting obligation extends beyond the party who is responsible for contamination to the owner and any later purchaser, operator or tenant of such a property.

    In addition, a remedial action permit must be obtained by the following four categories of persons: (1) each owner and operator of an underground storage tank facility who is liable for remediation pursuant to the Underground Storage of Hazardous Substances Act; (2) each owner and operator of an industrial establishment who is liable for remediation pursuant to ISRA; (3) any other person in any way responsible, pursuant to the Spill Act, and (4) any other person who is remediating a site. If ARRCS's wide net captures more than one person with a permitting obligation, a likely occurrence, the parties can become co-permittees, though remain jointly and severally liable for the permit's obligations.

    ARRCS exempts certain groups from having to obtain a remedial action permit: governmental entities; a person who purchased property on or before SRRA's effective date (May 7, 2009) and is not otherwise liable for cleanup and removal costs under the Spill Act; a person remediating one's primary or secondary residence; the owner or operator of a child care center who is remediating a licensed child care center; the person responsible for remediating a school; and the owner of a small business who is responsible for performing a remediation at his or her place of business.

    ARRCS contains provisions for transferring, modifying and terminating remedial action permits. The cost for applying for, modifying or terminating a soil remedial action permit is $550. The fee of applying for, modifying or terminating a groundwater remedial action permit is $750. The cost for transferring either type of permit is $100. There are also annual review fees for all remedial action permits.