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Important Deadline Nears for Compliance with NJDEP Public Outreach and Notification Regulations


August 15, 2009
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By John M. Scagnelli and William A. Baker | September 2, 2009 is an important date for all persons responsible for conducting New Jersey environmental remediations initiated prior to September 2, 2008.

September 2, 2009 is the deadline for compliance with the New Jersey Department of Environmental Protection’s (NJDEP) Public Outreach and Notification Regulations (“Regulations”), which apply to all New Jersey environmental remediation sites. All persons responsible for conducting New Jersey remediations initiated prior to September 2, 2008 must be in compliance by this date or potentially face penalties. Failure to comply with the Regulations could carry penalties of up to $8,000 per day. N.J.A.C. 7:26C-10.4.

Compliance Obligations – Public Notification

For sites where remediation began after the September 2, 2008 effective date of the Regulations, public notification, either by posted signs or letters, must be made not later than two weeks prior to either initiating field activities associated with a remedial investigation or a multi-phase remediation, or initiating a single phase remediation. For those sites where remediation was initiated prior to the September 2, 2008 effective date of the Regulations, compliance with the Regulations must occur by September 2, 20091. N.J.A.C. 7:26E-1.4(h), (i).

The person responsible for conducting the remediation must either post a sign of at least two feet by three feet in size with specified wording at the remediation site or send notification letters with specified content to owners and tenants of real property, and to administrators of school and child care facilities, located within 200 feet of the site.

If a language other than English is predominantly spoken by property owners and tenants in the area within 200 feet of the site, the sign or notice letter must be in the non-English language. If notice letters are sent, new update letters must be sent every two years until a No Further Action Letter is issued by NJDEP for the site. N.J.A.C. 7:26E-1.4(h), (i).

Compliance Obligations – Identification of Sensitive Populations and Resources

As part of the required public notice (regardless of whether notice is given by posting a sign or sending a notice letter), the person responsible for conducting the remediation must identify sensitive populations and resources located within 200 feet of the site, including residences, potable wells, schools, child care facilities, public parks and playgrounds, surface water and Tier I wellhead protection areas. This information must be submitted to the NJDEP case manager, the NJDEP Office of Community Relations, and the municipal clerk and designated local health official of the municipality where the site is located not later than two weeks prior to initiating field work associated with the remedial investigation, or by September 2, 2009 for sites where remediation was initiated prior to September 2, 2008. N.J.A.C. 7:26E-1.4(f).

Compliance Obligations – Fact Sheet Publication

If contamination has migrated off-site in any environmental medium, a fact sheet with specified content must be prepared and distributed by the party responsible for conducting the remediation. The fact sheet must contain certain specified information concerning the site, including the site history and a description of contamination on the site. The fact sheet must be distributed to owners and tenants of real property located within 200 feet of the site within two weeks after a determination is made that contamination has migrated off the site, or by not later than September 2, 2009 for sites where contamination migrated off site prior to September 2, 2008. Within four weeks of the discovery of off-site contamination, the person responsible for conducting the remediation must publish the fact sheet as a display advertisement in a daily or weekly newspaper of general circulation in the vicinity of the site and sent a copy to the NJDEP case manager, the NJDEP Office of Community Relations, and the municipal clerk and designated health official of the municipality where the site is located. N.J.A.C. 7:26E-1.4(k).

Compliance Obligations – Additional Public Outreach

NJDEP is permitted to require that additional public outreach be conducted for certain sites if it determines that additional outreach is needed due to site-specific circumstances or if it determines that there is substantial public interest in remediation activities concerning a site. These public outreach measures may include, but are not limited to, hosting a public information session or public meeting, publishing a notice with information about the site in a local paper of record, or establishing a local information repository. N.J.A.C. 7:26E-1.4(o).

Summary

The Regulations were designed to enhance public notification of remediation activities on contaminated sites and to provide local municipalities and affected communities with notice and opportunity to have input in the site remediation process. These requirements, however, create yet another layer of compliance obligations for persons responsible for conducting site remediations which need to be considered and dealt with at all New Jersey environmental remediation sites. It is important that all persons responsible for conducting New Jersey environmental site remediations understand and comply with NJDEP’s Public Outreach and Notification Regulations.

This Scarinci Hollenbeck Client Alert has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.


1One requirement that took effect immediately was the obligation of the party responsible for conducting the remediation to provide a copy of the remedial action workplan and any updates or status reports to the municipality in which the site is located, when requested by the municipality. N.J.A.C. 7:26E-1.4(d)