NJDEP Proposes Regulatory Fix to Impending Remediation Deadlines and Overly Conservative "IEC" Definitions

October 6, 2010
MGKF Special Alert
by BRUCE S. KATCHER and JONATHAN H. SPERGEL

The New Jersey Department of Environmental Protection (NJDEP) released a proposed rulemaking and compliance advisory on October 4 that will make significant changes to address two significant concerns of the regulated community under the existing Site Remediation Act Regulations: (1) the need to extend certain rapidly approaching regulatory and mandatory site assessment and remediation deadlines and (2) the need to revise the overly conservative definition of, and requirements for mitigating, vapor intrusion (VI) immediate environmental concern (IEC) conditions. While the announced regulatory changes are only in proposed form, the NJDEP compliance advisory indicates the agency will exercise its enforcement discretion to apply the proposed changes now as if they were final. Public comments on the revisions are due by December 3, 2010.

Extension of Regulatory and Mandatory Deadlines

NJDEP acknowledged the growing concern of the regulated community that, without relief from the current deadlines for (1) submission of receptor evaluations (REs), (2) addressing LNAPL and (3) completion of preliminary assessment s(PAs) and site investigations (SIs), a large number of site remediation cases will end up under the NJDEP direct oversight program rather than in the far more flexible LSRP program. This problem and the significance of the regulatory and mandatory deadlines were the subject of a recent article in MGKF's August 2010 Client Alert. To address this concern, the proposed rules would do the following:

Receptor Evaluation: The deadlines for the initial RE have been extended such that any case initiated prior to March 1, 2010 would have until March 1, 2011 to meet the regulatory time frame to submit the RE and until March 1, 2012 to meet the mandatory time frame (REs for most existing cases were previously due by November 26, 2010). Cases initiated after March 1, 2010 have one year after initiation to meet the regulatory deadline and two years to meet the mandatory deadline.

Free Product Recovery: The regulations have been clarified such that the regulatory and mandatory time frames apply to the installation of “interim remedial measures” to address free product as distinguished from the installation of a free product recovery system. The dates for each deadline have been extended to coincide with the new dates for the initial RE - for cases beginning prior to March 1, 2010, one year from that date for the regulatory deadline, and two years for the mandatory deadline, and for cases initiated after March 1, 2010, one and two years from initiation, respectively.

PA/SIs: The deadlines to submit a PA or SI are modified so as to only apply where either the ISRA or UST regulations require the submission of such reports. The time frames have also been changed to coincide with the dates for submission of the initial RE, as set forth above.

Revisions to VI IEC Regulations

New Regulatory Trigger: The current regulatory trigger for applying the VI IEC requirements – the indoor air screening level (IASL) – was extensively criticized as being overly conservative and inconsistent with NJDEP’s Vapor Intrusion Guidance. In response, NJDEP has proposed that the regulatory trigger for the VI IEC requirements be revised to the rapid action level (RAL) pursuant to the Vapor Intrusion Guidance. The published RALs can typically run anywhere from 2 times to 10 times the IASL. If a published RAL does not exist, you must contact NJDEP which will establish a site-specific RAL.

New IEC Time Frames and Non-IEC Requirements: In addition to eliminating the IEC reporting, notification and mitigation requirements unless an RAL is exceeded, the proposed IEC revisions also extend the time period for mitigating a VI IEC from 5 days to 14 days, in recognition of the fact that site access issues often can not be resolved within 5 days. NJDEP also proposes new requirements when indoor air contaminants are identified above IASLs but below RALs. In these instances, although the condition does not constitute an IEC, a party will still be required to submit the indoor air data to NJDEP within 14 days of identifying the exceedance; submit a mitigation plan to NJDEP within 60 days; implement the mitigation plan within 120 days; and submit a mitigation response action report to NJDEP within 180 days.

If you have any questions about the proposed rulemaking or need assistance formulating comments or addressing other issues related to the SRRA regulations, please contact Bruce Katcher (bkatcher@mgkflaw.com) 484-430-2320 or Jonathan Spergel (jspergel@mgkflaw.com) 484-430-2309.