Legal Updates

The New Jersey Department of Environmental Protection (NJDEP) recently reinforced its position on the May 2016 deadline to complete the remedial investigation of cleanup sites for cases open since 1999 or earlier. In anticipation of this deadline, the NJDEP also published earlier guidance documents addressing the investigation of the potential impact of contaminated sites on surface waters.⁽¹⁾

The New Jersey Department of Environmental Protection (NJDEP) recently reinforced its position on the May 2016 deadline to complete the remedial investigation of cleanup sites for cases open since 1999 or earlier. In anticipation of this deadline, the NJDEP also published earlier guidance documents addressing the investigation of the potential impact of contaminated sites on surface waters.⁽¹⁾

Failure to meet the May 2016 deadline places onerous statutory requirements on the site owner, including: (a) continued retention of a licensed site remediation professional (LSRP) plus NJDEP oversight; (b) payment of NJDEP oversight costs; (c) financial assurances for remaining work plus surcharges; and (d) NJDEP remedy cleanup selection. Missing the May 2016 deadline is not recommended, but non-compliance, if identified before May 2016, may be addressed depending on the nature of such non-compliance.

NJDEP stressed the following points relating to its recent guidance documents: 

• Technical Requirements for Site Remediation, N.J.A.C. 7:26E, apply to every site, even when there is an industrial or developed environment or the delineation will overlap with other projects.
• An Ecological Receptor Evaluation, under N.J.A.C. 7:26E-1.16, must be completed to determine whether environmentally sensitive natural resources exist on the site, adjacent to the site, or could potentially be affected by current or historical impacts from the site. Both historic and current contamination migration pathways must be identified and investigated if contaminant concentrations are greater than the screening criteria and a pathway exists.
• NJDEP acknowledged that there are complicating factors that should be evaluated in the context of conducting a remedial investigation of sediment and surface waters in certain situations, for example: (a) where the site falls under federal jurisdiction, such as CERCLA or RCRA; (b) sites are adjacent to water bodies in industrialized or developed areas; and (c) sites impacted by complicated tidal systems or legacy contamination. The NJDEP noted that for sites under CERCLA or RCRA jurisdiction, the responsible party should coordinate with the NJDEP case team and the USEPA regional project manager; this coordination should be documented in the Remedial Investigation and Remedial Action report.

NJDEP’s positions with respect to its recent guidance documents may be subject to legal and technical challenges and objections. However, these will likely vary and be specific to the conditions of each specific site and its historical operations and investigation strategy.

The May 2016 deadline for completion of investigation for some sites is approaching. If you have questions about your property or NJDEP cleanup case, please call us to discuss your requirements and possible options.

⁽¹⁾ DEP Guidance Documents “Characterization of Contaminated Ground Water Discharge to Surface Water” (January 2016) and “Investigating Impacts from Contaminated Sites to a Surface Water” (November 2015).