NJDEP to Enforce for Missing Site Remediation Certifications

November 16, 2007
by BRUCE KATCHER
Client Alert Newsletter November 2007

In a September enforcement alert, the New Jersey Department of Environmental Protection ("NJDEP") gave notice of a new enforcement initiative targeting parties who have failed to file timely reports certifying that any engineering and institutional controls approved in connection with a no further action ("NFA") letter under NJDEP's Site Remediation Program are being properly maintained and continue to be protective of public health, safety and the environment. The certification is required to be filed every two years following establishment of the controls. Examples of engineering and institutional controls to which the certification requirement applies include caps, fences and deed notices for soil remedies and trenches, dikes and classification exception areas for groundwater remedies. NFAs issued under the voluntary cleanup program, the underground storage tank program, the Industrial Site Recovery Act and sites under administrative orders may be affected.

The party responsible for the remediation (typically the recipient of the NFA letter) and any subsequent owner, lessee or operator during that person’s ownership, tenancy or operation, are obligated to inspect and maintain the controls and file the biennial certification with NJDEP. Where applicable, the requirement to file the certification is a condition of the NFA letter, so that failure to comply can potentially void the letter for both the original recipient and any subsequent owner or operator of the property. Failure to file the certification is considered a "non-minor" violation and may be subject to a minimum penalty of $8,000 per day under NJDEP’s Grace Period Rules. A list of delinquent parties can be found on NJDEP’s website at http://datamine2.state.nj.us/dep/DEP_OPRA/Intro.htm.