Sweeping Regulatory Changes Impact All Contaminated Sites

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Title:
Sweeping Regulatory Changes Impact All Contaminated Sites
Date:
November 19, 2009
Publication:
Environmental ALERT
Area(s) of Practice:
Environmental Law

New remediation regulations now apply to all sites where there has been a discharge of hazardous substances. Effective November 4th, the Administrative Requirements for Remediation of Contaminated Sites (ARRCS) provide details of the new site remediation program instituted by the Site Remediation Reform Act (SRRA). These interim regulations include significant substantive changes to the Technical Requirements for Site Remediation (Tech Regs) that immediately impact ongoing as well as new cases.

If you are involved in a site remediation project, if you buy, sell or own contaminated property, or if you are an environmental professional, you should learn more about this special regulatory adoption and its applicability to your business or property.

Under the new site remediation program, the New Jersey Department of Environmental Protection (NJDEP) will have a limited role in the vast majority of cleanups. Instead, private Licensed Site Remediation Professionals (LSRPs) will oversee the work and, in lieu of NJDEP-issued no further action letters, LSRPs will issue Response Action Outcomes (RAOs) certifying that the investigation and cleanup of contaminated sites have been completed in accordance with State standards.

New Cases vs. Existing Cases

  • Status as a "new" or "existing" case will determine whether you must use an LSRP now or can wait until May 2012 to do so.
  • Broad definition of "new case" and limited definition of "existing case" increase the number of sites required to use an LSRP now.
  • Finality of RAOs depends upon potential for NJDEP audit of the work.
  • New remediation fees will be assessed depending upon the number of areas of concern and type of contaminated media present.

Technical Requirements Applicable to All Cases

Regardless of status as a new or existing case, the following apply now to all remediation cases:

  • New requirements for receptor evaluations, including vapor intrusion assessments, and the presence of newly defined Immediate Environmental Concern (IEC) conditions may require urgent action.
  • Mandatory timeframes apply to complete Preliminary Assessment/Site Investigation, IEC action, receptor evaluations and remediation of certain free or residual product.
  • New forms and screening checklists, including the new Case Inventory Document (CID), must be included with next submittal.
  • Significant new technical guidance applies, many recently issued either in final or draft form.
  • Substantial document retention requirements have been imposed and include required submission of documents to NJDEP, potentially affecting claims of privilege and confidentiality.
  • New "single point" compliance standard is required for delineation in all media during the remedial investigation phase.
  • Use of restricted use remedies may be limited by presumptive remedies and the NJDEP direct oversight program.
  • New remedial action permits will be issued for all restricted use remedies.

Transactions and ISRA

The interim rules affect transactions, due diligence and the ISRA compliance process. For pre-acquisition due diligence:

  • New requirements apply for All Appropriate Inquiry.
  • Reporting standards for LSRPs may trigger remedial obligations.
  • Use of an LSRP for pre-acquisition due diligence may not be advisable.
  • ISRA subject transactions need to take into account the following:
  • Expedited compliance options are limited for "new cases" but a Remediation Certification may allow for faster closing.
  • Use of surrogate amounts to establish the required remediation funding source may delay preparation of LSRP detailed cost estimate.
  • An irrevocable letter of credit as a funding source is now permitted.