Certain parties that are responsible for conducting environmental cleanups have recently received a compliance alert letter from the New Jersey Department of Environmental Protection (the “Department”) indicating that, pursuant to the Site Remediation Reform Act, N.J.S.A. 58:10C-1, et seq. and the rules which implement it (collectively, “SRRA”), if the site investigation is not completed by May 7, 2014 (the “Statutory Deadline”), the parties are subject to the Department’s direct oversight. What does all of this mean? This article sets forth (1) to whom the statutory deadline applies; (2) what exactly the statutory requirement is; and (3) what the consequences are for failure to meet the statutory deadline/requirement.
To Whom does the Statutory Deadline Apply?
The statutory deadline applies to parties that are responsible to investigate and remediate: (a) all discharges/contaminated areas of concern at any site where the contamination was identified on or before May 7, 1999 and (b) all discharges/contaminated areas of concern where the contamination should have been identified on or before May 7, 1999 due to an obligation to complete a preliminary assessment and/or site investigation pursuant to the Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6, et seq., or a Spill Act Directive (see N.J.S.A. 58:10-23.11f), amongst other such legal requirements (collectively, “Subject Parties”).
It is important for parties that are potentially responsible for conducting a cleanup to understand that even if the contamination wasn’t discovered until much more recently than 1999, the Statutory Deadline might apply to them anyway, depending upon whether or not the contamination should have been identified on or before May 7, 1999. This analysis is not so cut and dry, since, first, the party might not realize that he/she even falls into the category of a party potentially responsible for a particular cleanup, and second, whether the contamination should have been identified on or before May 7, 1999 is likely open to some level of interpretation. A party with understanding that he/she might fall into the category of a party potentially responsible for a particular cleanup might evaluate whether he/she was subject to any requirement to conduct a preliminary assessment and/or site investigation on or before May 7, 1999, pursuant to any law, rule, court order, contract, directive, settlement agreement or other legal obligation. If so, that party should immediately assess the contamination and expedite a proper investigation.
Who is Exempt from the Statutory Deadline?
It should be noted that the following parties are not considered Subject Parties and as such, are not responsible for complying with the Statutory Deadline: parties responsible for sites/cases being overseen by the Federal government, including Federal facilities; Spill Act Exempt entities (i.e. certain public entities and certain parties that may be voluntarily conducting a cleanup which are not otherwise legally obligated to do so); parties to certain litigated cases that were settled; and parties responsible for sites that are undergoing long-term monitoring after receiving a No Further Action determination from the Department.
What is the Statutory Requirement?
The SRRA requires that Subject Parties complete the remedial investigation of the contamination by May 7, 2014. “Remedial investigation,” as defined by the SRRA, is a “process to determine the nature and extent of a discharge of a contaminant at a site or a discharge of a contaminant that has migrated or is migrating from the site, the problems presented by a discharge…and the gathering of any other sufficient and relevant information necessary to determine the necessity for remedial action and to support the evaluation of a remedial action if necessary.” N.J.S.A. 58:10C-2. In a policy statement, the Department has synthesized and summarized this definition and has clarified that in order for a “remedial investigation” to be deemed completed for purposes of complying with the Statutory Deadline, the following must be determined by a Licensed Site Remediation Professional (LSRP): (a) the nature and extent of the discharge both on and off site (i.e. a full delineation); (b) the impacts and potential impacts to receptors of the contaminant(s); and (c) the need for remedial action, if any, and the data to support the conclusion. Additionally, certain administrative tasks must be completed which would evidence that the requisite remedial investigation has been performed. Specifically, a Remedial Investigation Report and Receptor Evaluation must be completed and submitted to the Department.
The purposes of the Statutory Requirement are in line with the overall purpose of the SRRA itself, including the LSRP Program which it created – to achieve cleanups that are protective of human health and the environment in an efficient manner. It should also be noted that the May 7, 2014 date is not an arbitrary one. It marks the five (5) year anniversary of the enactment of the SRRA, such that Subject Parties must have completed the remedial investigation within ten (10) years (by May 7, 2009) but in no event beyond five (5) years of the date of enactment of the SRRA (by May 7, 2014). Regardless, if a Subject Party fails to comply with the Statutory Deadline, the consequences can be very serious.
What are the Consequences for Failure to Comply with the Statutory Deadline?
The consequences for a Subject Party failing to complete a remedial investigation by the Statutory Deadline are dire. In those cases, the Department is required by law to undertake direct oversight of the cleanup. N.J.S.A. 58:10C-27A(3). Stated simply, direct oversight by the Department will result in a more expensive, more drawn-out cleanup with more stringent standards and additional, heightened requirements. Pursuant to N.J.S.A. 58:10C-27c, such direct oversight by the Department offers the following noteworthy disadvantages to a party remediating a contaminated site:
● the Department must review and approve every document submitted by the LSRP responsible for the site, thereby causing the cleanup to take a longer period of time than if it were not subject to direct oversight;
● unlike other cleanups, a costly feasibility study must be performed and submitted to the Department for approval;
● the Department, not the remediating party, will select the final remedy for the site;
● generally a task reserved for parties which must comply with ISRA, the party responsible for conducting the remediation shall establish a remediation trust fund in the amount of the estimated cost of the remediation and any disbursement from the remediation trust fund must be pre-approved by the Department; and
● akin to parties conducting Superfund cleanups under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the person responsible for conducting the remediation shall implement a public participation plan, which must be pre-approved by the Department, in order to solicit public comments from the surrounding community regarding the remediation of the site.
In short, it is easy to see why direct oversight is not palatable to remediating parties. It should also be noted here that the Department may undertake direct oversight in certain cases, as opposed to being required to undertake direct oversight in cases where a Subject Party has failed to meet the Statutory Deadline. In cases where the Department may undertake direct oversight, certain factors are to be considered including, but not limited to, the compliance history of the remediating party and the extent of the damage to natural resources. However, pursuant to the plain language of the law, there is no room for such an evaluation in a case where the Subject Party has failed to meet the Statutory Deadline, unless the remediating party falls into one of the extremely narrow exceptions.
In conclusion, all remediating parties need to be aware of the Statutory Deadline, which is quickly approaching. Parties that are responsible (or potentially responsible) for conducting a cleanup should evaluate whether (1) the Statutory Deadline applies to him/her; and (2) if so, whether he/she is on target for compliance. The Department has compiled certain resources of useful information, which are available at: http://www.state.nj.us/dep/srp/timeframe/. The Department has also established a call center specially to assist remediating parties with compliance; the contact phone number is 855-MAY-2014.
This article was first published in the August 12, 2013, issue of the New Jersey Law Journal and is republished here with permission. Copyright 2013 ALM Media Properties, LLC. All rights reserved.