May 2014 is not that far away – New Jersey’s Mandatory Deadline for Remedial Investigations
The Site Remediation Reform Act (“SRRA”) established a May 7, 2014 deadline for completing the remedial investigation for all sites that triggered remediation requirements prior to May 7, 1999. If a responsible party fails to do so, the New Jersey Department of Environmental Protection (NJDEP) is required to undertake direct oversight of the remediation of the contaminated site. As this deadline approaches, it is imperative that responsible parties start this process sooner rather than later. We expect environmental consultants will be extremely busy during the early part of 2014 due to people trying to meet the deadline.
Direct oversight means that the responsible party must fund the remediation as directed by the NJDEP, conduct and submit a feasibility study to the NJDEP for approval, implement each remedial action that the NJDEP selects for the site, submit an initial remediation cost review and submit an annual remediation cost review. Further, the responsible party must establish a remediation trust fund in the amount of the estimated cleanup, pay an annual remediation funding source surcharge of one percent, obtain NJDEP’s prior approval before making any disbursements from the trust fund, ensure that all submissions prepared by the Licensed Site Remediation Professional (“LSRP”) are submitted to the NJDEP simultaneously, submit a proposed public participation plan to the NJDEP for approval that contains a strategy to solicit public comments concerning the remediation and implement the publically approved plan.
In response to this draconian result, in June 2013, the NJDEP issued a policy statement entitled “Interpretation of SRRA Requirement to Complete the Remedial Investigation by May 2014.” (see http://nj.gov/dep/srp/timeframe/policy_statement.pdf). The NJDEP’s goal was to articulate what will be deemed to be “completion of the remedial investigation” and the role of an LSRP’s “professional judgment” in satisfying this requirement.
The NJDEP acknowledges that “delineation” does not mean that all of the contamination has been fully investigated in all media to levels at or below applicable standards. This distinction is important as it is in-line with SRRA’s objective to protect human health and the environment by ensuring that the remedial investigation characterizes: (a) the nature and extent of a discharge both on and off-site, (b) the impacts and potential impacts to receptors presented by the discharge and (c) the need for an appropriate remedial action.
The LSRP has the discretion to utilize multiple lines of evidence, including without limitation, extrapolation or modeling based on existing data; application of conceptual site models; or other means for determining the extent of the contamination. It should be noted that although the remedial investigation phase of the case does not need to include delineation to the “clean zone”, such sampling is required to demonstrate attainment of the applicable remediation standards at the conclusion of the remedial action and prior to the issuance of the final case closure document, the coveted response action outcome.
Therefore, although full contaminant delineation is not required to satisfy the NJDEP’s requirement to submit a remedial investigation by May 7, 2014, enough data must be collected so that an LSRP can determine the nature and extent of the contamination to develop the appropriate remedial alternatives.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.
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