NJDEP Provides Refreshing Flexibility in New Guidance on Critical May 7, 2014 Remedial Investigation Completion Deadline
One of the more problematic sections of New Jersey’s Site Remediation Reform Act (SRRA) is the requirement that subjects any person responsible for conducting a remediation of pre-SRRA contamination that has failed to complete an entire site remedial investigation (RI) within five years after the date of enactment of SRRA to the direct oversight of the New Jersey Department of Environment Protection (NJDEP). Direct oversight is the rough equivalent of site remediation purgatory as it allows NJDEP rather than the party performing the remediation to select the remedial action and requires the party to post a trust fund as financial assurance for the remediation and to implement a NJDEP-approved public participation plan.
With the five year anniversary of SRRA set to occur on May 7, 2014, and no statutory or regulatory mechanism available to extend that date, consternation in the regulated community over what constitutes completion of a RI for the entire site has led NJDEP recently to release new guidance that provides much needed clarification and flexibility as to making that determination. That guidance is summarized below.
Clarification on What is Covered
First, NJDEP clarified to which cases the RI deadline applies, including all discharges or contamination that were identified prior to May 7, 1999. Also included are situations where contamination should have been identified prior to that date pursuant to a statute, regulation or court order requiring that a preliminary assessment or site investigation required by to be conducted under the Industrial Site Recovery Act (ISRA), the underground storage tank regulatory program, an administrative or court order, ISRA remediation agreement or a directive issued under the Spill Compensation and Control Act. This raises the specter of some old cases where parties defaulted on these obligations being thrown into direct oversight when remediation is subsequently taken over by a party that had nothing to do with the original default.
According to NJDEP, the deadline does not apply to cases being overseen by the federal government (presumably EPA lead RCRA corrective action and CERCLA sites), certain cases that are proceeding under a settlement of litigation involving NJDEP prior to or pending on May 7, 2009, federal facilities, Spill Act exempt entities, and cases undergoing post-no further action letter long term monitoring.
Clarification on What Constitutes Complete RI – the Delineation Conundrum
Second, NJDEP clarifies that completion of the RI must be demonstrated by submission of (1) a RI report pursuant to the Technical Requirements (N.J.A.C. 7:26E-4.9), (2) an updated receptor evaluation and (3) a determination of whether a remedial action is required. The RI is complete when a licensed site remediation professional (LSRP) can conclude that the nature and extent of contamination (including any off-site migration) is delineated to the applicable remediation standards and enables selection of an appropriate remedial action.
Of paramount importance is that NJDEP emphasizes that delineation, which is not defined in the statute or regulations, “does not mean that ‘clean zone’ samples indicating contaminant concentrations are at or below applicable standards are required”. Rather this is a determination to be made by the LSRP using regulations, guidance and professional judgment and multiple lines of evidence, including analytical data, extrapolation, modeling, application of conceptual site models “or other means”. This is a significant departure from NJDEP’s past interpretation of “delineation” for RI completion purposes which focused on the necessity of clean zone sampling. The agency notes that clean zone sampling still is required to demonstrate final attainment of remediation standards prior to conclusion of the remedial action.
Notice to Parties Conducting Remediations and LSRPs
Notice of the above is being mailed by NJDEP to parties conducting remediations that fall within the requirement to complete the RI by May 2014 and to all LSRPs. The notice to parties conducting remediations raises the potential for the assessment of penalties up to $25,000 per day until the RI is completed in addition to direct oversight, although the only consequence of missing the date contained in SRRA or the regulations is direct oversight and no mention is made of penalties.
The notice also cautions that submission of a RI report which does not demonstrate that the remediation is complete will not satisfy the requirement – a self-evident proposition – however, this statement underscores the risks associated with relying on the LSRP to conclude that the RI is complete in the first instance and hoping that NJDEP’s limited review of LSRP submissions does not leave the party conducting the remediation with inadequate time to correct any deficiencies identified by the agency which will likely be swamped with RI reports as the deadline approaches.
If your site falls under the May 7, 2014 deadline and you are not nearing the completion of the RI or developing a strategy that will get you there sufficiently before the deadline to enable you to submit a RI report that you are confident will not be bounced by NJDEP for deficiencies, time is rapidly running out. With only a little over ten months left on the calendar to meet that date, an intensive effort is the order of the day.