New Jersey Site Remediation Program: Looming Deadlines and Developments

February 9, 2012
by BRUCE S. KATCHER, JONATHAN H. SPERGEL, and DARRYL D. BORRELLI
MGKF Special Alert

Implementation of new requirements under the 2009 New Jersey Site Remediation Reform Act (SRRA) continues to cause consternation within the regulated community. This Special Alert provides a brief update concerning the following timely and important issues:

  • The final deadline for retaining licensed site remediation professionals (LSRPs);
  • The March 1, 2012 mandatory deadlines for key submissions;
  • The status of extensive regulatory changes that were proposed in August 2011;
  • A flood of new Department of Environmental Protection (DEP) guidance documents, especially the recently released new Vapor Intrusion Guidance;
  • The anticipated release of draft remedial priority scores for all sites.

Deadline for Opting-in to the LSRP Program - Under SRRA, every pending site remediation case, other than those involving unregulated heating oil tanks, must retain a LSRP to oversee the remediation by May 7, 2012. DEP has been sending multiple letters to parties with existing cases to remind them of the deadline and advising that their cases are no longer being reviewed by a DEP case manager. Just over 500 individuals are now licensed as LSRPs, which may not be enough qualified LSRPs to oversee all pending and new cases. We strongly suggest that you not wait until the last minute to retain a LSRP for an existing case.

Rapidly Approaching Mandatory Deadlines – DEP established a number of mandatory timeframes under the SRRA regulations for a variety of site remediation milestone submissions, with failure to comply with these deadlines automatically subjecting sites to direct oversight by DEP. Direct oversight is undesirable because, among other things, DEP selects the remedy and financial assurance must be posted. The operative deadline for the first round of mandatory timeframes is March 1, 2012 (the deadline for requesting an extension has passed). Submissions subject to the March 1, 2012 deadline are as follows:

  • If remediation was initiated before March 1, 2010, submit an initial receptor evaluation;
  • If light non-aqueous phase liquid (LNAPL) was identified prior to March 1, 2010, submit a LNAPL recovery system report;
  • If an immediate environmental concern (IEC) condition was identified prior to March 1, 2010, initiate IEC source control and submit an IEC report;
  • If site remediation was initiated before March 1, 2010 and a preliminary assessment (PA) and/or site investigation (SI) is required pursuant to ISRA or the UST Act, submit a PA and/or SI report.

The new SRRA regulations (see below) will include deadlines for additional submissions.

Status of New SRRA Regulations - On August 15, 2011, DEP proposed an extensive set of changes to the existing site remediation program regulations in anticipation of eliminating the case manager system and full implementation of the LSRP program. Major changes were proposed to Technical Regulations to make them more performance-based and the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS). The public comment period for that proposal closed on October 14, 2011 and extensive public comments were submitted. In light of the final LSRP opt-in deadline and the large number the comments, we expect those regulations will be finalized on or shortly before May 7, 2012.

Guidance Documents – New Vapor Intrusion (VI) Guidance Issued – In January 2012, DEP issued Version 2.0 of its Vapor Intrusion (VI) Technical Guidance document, which finalizes draft revisions proposed in May 2011 and replaces earlier VI guidance. The new guidance tracks the recently revised technical and administrative requirements for site remediation related to VI and incorporates updated screening levels and a revised decision framework for determining when VI has the potential to be an Immediate Environmental Concern or simply a Vapor Concern. The new guidance also incorporates the concepts of a Conceptual Site Model and the Multiple Lines of Evidence approach to VI. Information on VI issues related to landfills and methane are addressed. Specific procedures for releases of gasoline and diesel fuel/#2 heating oil are presented. Given the increased focus on VI, careful consideration should be given to the new guidance.

Remedial Priority Scoring System - Under an amendment to the Spill Compensation and Control Act which accompanied SRRA, DEP must rank every site remediation case (with limited exceptions) in terms of the level of risk to the public health, safety or the environment and other factors and post those ranks on the internet. DEP developed a five tier computerized Remedial Priority Scoring System using data from multiple agency databases. Draft rankings are expected to be distributed for comment to any party responsible for conducting a remediation at each site very soon followed by a 60 day comment period. Aside from a SRRA requirement that DEP must review any submission by a LSRP for the highest priority sites and discretionary DEP authority to place such sites under direct agency oversight, how the rankings will be used remains unclear. Anyone receiving a draft ranking should consider whether commenting is appropriate.

Further Information - If you have any questions concerning the above or other site remediation issues, please contact Bruce Katcher (bkatcher@mgkflaw.com; 484-430-2320), Jonathan Spergel (jspergel@mgkflaw.com; 484-430-2309) or for technical issues, Darryl Borrelli (dborrelli@mgkflaw.com; 484-430-2302).