News

NJDEP to Commence Enforcement Actions for Failure to File Site Remediation Certification Reports

Introduction: Beginning in October, the New Jersey Department of Environmental Protection ("NJDEP") will commence a new enforcement initiative against parties who have failed to file timely reports certifying that any engineering and institutional controls approved in connection with the issuance of a no further action ("NFA") letter under NJDEP's Site Remediation Program are being properly maintained and continue to be protective of public health, safety and the environment. Examples of engineering and institutional controls to which the certification requirement applies include caps, fences and deed notices for soil remedies and trenches, dikes and classification exception areas ("CEAs") for groundwater. NFAs issued under the voluntary cleanup program, the underground storage tank program, the Industrial Site Recovery Act ("ISRA") and sites under administrative orders may be affected.

Basis of Requirement for Certification: Under the Brownfield and Contaminated Site Remediation Act and the NJDEP’s Technical Regulations ("Tech Regs"), NJDEP may approve a remediation that leaves contamination in place provided the remediator controls the public's exposure to unsafe levels of contamination through the use of appropriate engineering or institutional controls. In turn, this requires periodic monitoring and maintenance of the controls and the filing of a biennial report with the NJDEP which certifies to the continued maintenance and protectiveness of the controls. The party responsible for the remediation (typically the one who receives the NFA letter) and any subsequent owner, lessee or operator during that person’s ownership, tenancy or operation, are obligated to inspect and maintain the controls and file the biennial certification with NJDEP. Where applicable, the requirement to file the certification is a condition of the NFA letter, so that failure to comply can void the letter for both the original recipient and any subsequent owner of or operator at the property; however, the requirement is triggered as of when the control is first established, not the date the NFA letter is issued.

Grace Period and Amnesty: The certification requirement was enacted in 1998, though enforcement had been minimal; however, on September 18, 2006, NJDEP adopted rules, known as the Grace Period Rules, which established minimum penalty amounts that would be assessed for violations of the Tech Regs, including failure to file the biennial certification. This spring, NJDEP sent out over 2000 letters to parties who had received NFA letters approving remedies using engineering and institutional controls which offered what amounted to an amnesty from the assessment of penalties under the Grace Period Rules provided the requisite biennial certifications were filed by September 18, 2007. We assisted a number of clients with the filing of these certifications during the amnesty period.

Enforcement Initiative: With the expiration of the amnesty, NJDEP announced on September 24, 2007 that it intends to begin to issue notices of violation and penalties to enforce the biennial certification requirements under the Grace Period Rules. Because the failure to file is categorized as a "non-minor" violation under those rules, NJDEP may assess a base penalty of $8,000, with each day of delay being a separate violation potentially subject to additional penalties. Further, as noted above, failure to file the certification may void an NFA letter. A link to NJDEP's Enforcement Alert on this subject containing additional information may be found at http://www.nj.gov/dep/enforcement/advisories-sr.htm. The Enforcement Alert also contains a link to a list of parties against whom enforcement action may be brought. Our preliminary review of the list indicates that it may contain errors.

For further information on this enforcement initiative, please contact Bruce Katcher (bkatcher@mgkflaw.com or 484-430-2320).