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DEP Imposes Expansive Public Notification Requirements for Site Remediation

Fall 2008Cole Schotz DocketAttorney: Jill B. Bienstock

On September 2, 2008, the New Jersey Department of Environmental Protection (“DEP”) amended the Technical Requirements for Site Remediation (“Tech Regs”), to impose an expansive public notification requirement for parties performing the remediation of contaminated properties.  In an effort to increase the public’s access to information about contaminated sites, the Tech Regs have imposed a series of notification requirements in advance of initiating a remedial investigation. 

Under the new rules, the public, DEP and local municipality must now be notified at least two weeks prior to the initiation of field activities associated with remedial investigation, and further updates may be required during the course of remediation.  Failure to comply with the deadlines and the nuanced mechanics of the notification provision may result in a base fine of between $3,000 and $8,000, though a number of offenses provide for a 30-day cure period.  Those sites already undergoing remediation as of September 2, 2008 have a phase-in period of one year within which to become compliant or complete remediation, and to receive a No Further Action Letter as proof.

Under the new rules, remediating parties must now, in advance of the notification deadline, identify and submit information relative to “sensitive populations & resources” located within 200-feet of the property boundary of the site to be investigated.  Remediating parties will need to identify, among other things, residences, potable wells, schools, child-care facilities, parks and playgrounds.  To keep the public informed, remediating parties must either: (i) post a sign, to be maintained throughout the remediation, containing the DEP’s and responsible party’s contact information, as well as stating “Environmental Investigation/Cleanup in Progress at This Site”; or (ii) distribute letters by certified mail to the identified sensitive population (e.g., residences located within 200 feet of the property boundary), two weeks before the remediation activities begin.  Notification may be required in additional language(s) if the predominant language of the “sensitive population” is other than English.  While the DEP has made available a checklist and supporting guidance, compliance is complex and requires a trained eye to avoid enforcement proceedings by the DEP. 

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