NJDEP Announces Grace Period for Biennial Certification Compliance

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

The New Jersey Department of Environmental Protection ("NJDEP") recently sent a flood of letters to parties that the agency claims have failed to file biennial certifications for engineering or institutional ("E&I") controls approved as part of conditional no further action ("NFA") letters issued by the SRP over the past several years (as far back as 1995 or earlier). The E&I controls include remedies utilizing deed notices, engineering controls such as caps, and classification exceptions areas for groundwater. Under SRP regulations, the party obligated to monitor the E&I controls (i.e., the remediator or the current site owner, lessee or operator) must certify every two years that the controls have been maintained and remain protective of public health and the environment.

The letters indicate that any overdue certifications must be filed by September 17 or NJDEP will apply its Grace Period Rules, pursuant to which failure to file a certification would be a non-minor violation. This means that the person responsible for the certification would not be entitled to a grace period following receipt of a notice of violation and would be immediately subject to the assessment of a penalty. Penalties for these violations can be $8,000 per violation per day. In essence, pursuant to these letters, NJDEP is allowing these parties a special grace period outside the scope of the Grace Period Rules to correct these deficiencies until September 17. Depending on the nature of the E&I controls, projected costs for biennial certifications may range from a few thousand up to ten thousand dollars.