Environmental Alert

Environmental Alert

On September 24, 2007, the New Jersey Department of Environmental Protection announced that it will commence enforcement actions on or about October 1st against approximately 950 parties for their alleged failure to submit Biennial Certification reports for engineering and institutional controls at known contaminated sites. The parties are listed here: http://datamine2.state.nj.us/dep/DEP_OPRA/Biennial%20Certifications%20Overdue.pdf.

Since September 2006, the agency has classified the failure to submit Biennial Certifications as a non-minor violation, subject to a daily $8,000 fine. It is apparently still a matter of internal discussion at the NJDEP whether the clock for these fines will start with September 2006, or with October 1, 2007. If it is the former, then a responsible party theoretically could have accrued penalties in excess of $2.6 million. Of course, fines are negotiable, but nevertheless it is a shocking amount to consider.

Many of the responsible parties do not know that they are in violation. If a party received a No Further Action letter in the mid-1990s, for example, the NFA would not have included the Biennial Certification requirements. If that party later sold its property, then it would not have received notice from the NJDEP of the new obligation. Thus, a party in this position could be facing an enormous penalty without being aware it is in violation.