NJ Site Remediation Deadlines Approaching for "Existing" Cases

August 8, 2010
by BRUCE KATCHER
Client Alert Newsletter August 2010

The new Site Remediation Reform Act regulations promulgated in November 2009 included several new deadlines applicable to both new and existing cases. One of the more important deadlines requires the submission of a receptor evaluation ("RE") that meets the requirements of the new regulations for most "existing cases" by November 26, 2010 (or by submission of the site investigation report, whichever is later). With some exceptions, an "existing case" is any case that was already under New Jersey Department of Environmental Protection ("NJDEP") oversight before November 4, 2009 (new cases, e.g., those initiated after November 4, 2009, must submit the RE by March 1, 2011). If you are responsible for conducting a remediation for an existing case, in most instances you only have a little over three months left to submit the RE.

Failure to submit the RE by the regulatory deadline could subject the non-complying party to enforcement action, including civil penalties, and does not bode well for compliance with the associated "mandatory" deadline, which will come into play on March 1, 2011. The RE must be submitted on a new form developed by NDJEP for this purpose. The various components of the RE, together with some of the new reporting and notification requirements and the severe consequences of missing the mandatory deadline, are described below. Similar deadlines to address free product are also discussed below. As this article goes to press, reports are circulating that NJDEP may extend both regulatory and mandatory deadlines (into 2011 for regulatory deadlines and into 2012 for mandatory deadlines), however, nothing has yet been published of an official nature.

RE Components: The RE has four components under the new regulations – land use, ecological, groundwater, and vapor intrusion ("VI"). The land use component requires that all existing and proposed changes in land uses (as approved by the municipality) within 200 feet of the site boundary be identified and mapped. For the ecological component, a qualitative baseline ecological evaluation is required based on data collected in connection with a site investigation of the property.

For groundwater, a well search is required where any sampling has identified groundwater contamination in excess of Class II groundwater standards. The well search may trigger notification requirements and sampling of potable wells and the latter may trigger compliance with the requirements applicable to immediate environmental concerns ("IECs"), which trigger further testing, reporting, notification and mitigation requirements.

The VI component may require a VI investigation under the NJDEP’s Vapor Intrusion Guidance document where groundwater contamination discovered in excess of the NJDEP’s groundwater VI screening levels or free product in groundwater is detected within 30 feet (for petroleum hydrocarbon plumes) or within 100 feet (for free product or non-petroleum based VOCs) of a building. A VI investigation may also be required under other circumstances, such as when soil gas or indoor air levels exceed the NJDEP VI soil gas or indoor air screening levels or landfill gas is implicated. Various sampling, notification and reporting requirements may be triggered (including groundwater contamination delineation requirements) and in the case of indoor air screening level exceedences, the IEC requirements may also apply.

Extensions of the Regulatory Deadline: The regulations authorize extensions of regulatory deadlines, such as the deadline for submission of the RE. A request for an extension must be submitted at least 30 days before the deadline on an appropriate form, specify the amount of time needed (but not an amount that would exceed a mandatory deadline, (as discussed below), state the reason(s) why more time is needed and the steps taken to minimize the time needed. If the NJDEP does not respond, the request is deemed approved.

Mandatory Deadline: In addition to the November 26, 2010 regulatory deadline for submission of an RE for an existing case, there is also a mandatory deadline for submission of an RE of March 1, 2011. If a party responsible for conducting the remediation fails to submit the RE by the mandatory deadline, the case becomes subject to "direct oversight." This means that even where the case is being managed under the new Licensed Site Remediation Professional ("LSRP") program, a NJDEP case manager will be assigned who must review and approve all submissions to NJDEP, a feasibility study evaluating site remedies must be prepared, the NJDEP will select the remedy, and a trust fund to cover financial assurance for remedy completion must be posted. The regulations also provide a mechanism to request an extension of the mandatory deadline, which must be made at least sixty days prior to the deadline.

Upcoming Deadlines for Free Product: A similar set of deadlines apply to addressing light non-aqueous phase liquid ("LNAPL") at sites where such conditions were identified to exist prior to March 1, 2010. For these sites, by November 26, 2010, free product delineation must be completed, an LNAPL recovery system installed and operating and a report submitted to NJDEP. Interim deadlines are also specified and a mandatory deadline for these requirements has been set for March 1, 2011.