NJDEP Issues Clarification on Reliance Upon NFA Letters
On August 19, 2019, NJDEP’s Site Remediation Program issued a “clarification” regarding the significance of old no further action or no further investigation statements contained in NJDEP comment letters as compared to No Further Action Letters or NFAs, both of which pre-date the enactment of the Site Remediation Reform Act (SRRA) in 2009.
First, the clarification draws a distinction between mere statements made in comment letters and the more formal “No Further Action” or NFA letters, the issuance of which, together with a covenant not to sue, were contemplated to be the final remediation documents to close out a site under the Brownfield and Contaminated Site Remediation Act pre-SRRA. NFA letters, except for those issued in unregulated heating oil tank cases, have now been replaced by Response Action Outcomes (RAOs) issued by Licensed Site Remediation Professionals (LSRPs) under SRRA.
By comparison, comment letters of the type referenced by NJDEP in its recent notification to the public, were typically issued in response to a submission by the party conducting the remediation that included documentation supporting why the party had completed investigation and had determined that no further remediation was warranted for one or more areas of concern (AOCs) at a site where other AOCs were still being addressed. That practice is no longer followed since NJDEP no longer issues comment letters and AOC-only RAOs are available. However, there are many old comment letters with this type of language left over from pre-RAO days.
According to NJDEP’s clarification, the distinction is that a No Further Action Letter may be relied upon during a subsequent investigation or remediation, provided an LSRP exercises its professional judgment and concludes that the remediation for which the NFA was issued remains protective. By implication, a statement in an old comment letter that no further action or investigation is required apparently cannot be relied upon by an LSRP. This appears to be consistent with existing practice and may be a response to members of the regulated community citing language in comment letters as the equivalent of receiving a No Further Action Letter.
Whether the distinction identified in the clarification is truly meaningful requires closer examination. Thus, the clarification indicates that in relying upon an NFA letter, the LSRP must still exercise his or her professional judgement to determine if the remediation remains protective. According to guidance on the meaning of “independent professional judgment” issued by the LSRP Board, the exercise of the LSRP’s professional judgment requires “applying the specialized knowledge, skill, education, training and experience of an LSRP to the facts, data, reports, site history, and other information regarding contamination or environmental conditions at a site to make informed remediation decisions that comply with all applicable statutes, regulations, and requirements of the New Jersey Department of Environmental Protection (Department) and the Board.” This may entail a fairly exhaustive evaluation by the LSRP of the remediation and documentation that supported the NFA in the first place as well as “other information regarding contamination or environmental conditions at a site” – a fairly ambiguous criterion, but seemingly encompassing any other known information at a minimum The NJDEP further caveats its clarification by noting that “a person responsible for conducting remediation (PRCR) cannot rely solely upon a previously issued ‘No Further Action Letter’ when an LSRP determines additional investigation is necessary to support the issuance of an RAO.” Presumably, the LSRP’s (versus the PRCR’s) decision as to reliance upon an old NFA Letter is conclusive.
By comparison, NJDEP’s clarification notice indicates that where NJDEP reached a determination that no further action or investigation was required for a particular AOC in a comment letter, these AOCs nonetheless “require further evaluation as determined by the” LSRP in “applying professional judgment prior to the issuance of a Response Action Outcome.” This seems like a similar process as the one applied to evaluating the continuing protectiveness of an NFA Letter, but explicitly requires an “evaluation.” Presumably, an NFA letter is afforded greater weight in any subsequent site investigation because it was issued as a final remediation document pursuant to statutory authority as opposed to an interim comment letter. The LSRP may also conclude that in light of the NFA Letter and supporting documentation that a more detailed “evaluation” is not required. Courts may also see a distinction if the adequacy of a cleanup is later litigated or challenged.
However, for purposes of satisfying an LSRP and NJDEP that a pre-SRRA cleanup is protective, this may be a distinction without a difference. Both involve the exercise of the LSRP’s professional judgment in the context of the information available concerning the site. Although the NJDEP uses the term “evaluation” in connection with the process by which the LSRP evaluates an old comment letter, and does not use that term when describing the process by which the LSRP is to determine whether to rely upon an NFA letter, the LSRP is still free, if not required, to evaluate the protectiveness of the prior remediation, and it will ultimately come down to the LSRP’s professional judgment.
At best, the clarification might be read to suggest that an NFA letter might be entitled to some degree of deference in connection with the LSRP’s exercise of its professional judgment, while the NJDEP comment letter statement is entitled to none. Whether that would provide an LSRP with any real solace is still an open question.