Site Remediation Reform Act: Will the Act Affect the Choice and Pace of a Remedy at My Site?

October 15th, 2009 | Posted by: Christopher DeGrezia 0| comments:

Site Remediation Reform Act - RemedyThe Site Remediation Reform Act (SRRA) will affect the choice and pace of remedies. SRRA provides that, for any site that is to be used for residential purposes, a licensed day care center, a public or private school, or a charter school, the Licensed Site Remediation Professional (LSRP) must ensure that the person responsible for conducting the remediation completes the remediation in a manner that complies with either unrestricted use standards, a soon to be established “Presumptive Remedy,” or an alternative remedy approved by the NJDEP.

Only time will tell what the new Presumptive Remedies will look like after they make their way through the regulatory process.  Given the array of variables that SRRA has identified as being capable of influencing a Presumptive Remedy selection for a specific site, it is difficult to predict exactly what the Presumptive Remedy regulations will look like.  One thing is clear, however, prior to the introduction of Presumptive Remedies a party remediating a site had substantial latitude to develop cost effective remedies that utilized engineering controls and that may now be in jeopardy.  The simple fact that SRRA now requires the use of Presumptive Remedies at sites that once could be remediated to restricted use standards suggests that Presumptive Remedies will focus more on “cut and scrape” excavation or other permanent remedial alternatives than they will on institutional or engineering controls.  Because SRRA also provides that NJDEP may authorize a person conducting a remediation to divide a contaminated site into one or more areas of concern (AOC) and apply a different remedial action at each AOC, it also seems plausible that requirements for use of Presumptive Remedies need not always be applied on a site-wide basis.

More precise guidance is to be provided by NJDEP. [On July 31, 2009, NJDEP issued a preliminary draft guidance addressing presumptive remedies in select cases, click here to view ].  In the meantime, SRRA does provide some guidance concerning the overall requirements for “Presumptive Remedies.” According to SRRA, Presumptive Remedies, which may include the use of engineering or institutional controls, must be based on:

  • the historic use of the property;
  • the nature and extent of the contamination at the site;
  • the future use of the site; and
  • any other factors deemed relevant by NJDEP.

With respect to the Presumptive Remedies that must be employed for properties that were once used as landfills, SRRA provides that the construction of single family residences, public schools, charter schools, or child care centers on such sites is prohibited if engineering controls are used for the management of landfill gas or leachate.  Given that SRRA is silent about whether single family residences, public schools, charter schools or child care centers may be constructed on former landfill sites that do not require the use of engineering controls for the management of landfill gas or leachate, the implication is that such construction will be permissible under SRRA.  That said, at least insofar as municipal landfills are concerned, there is little likelihood that former landfill sites will not require the use of engineering controls for the management of landfill gas or leachate.

While SRRA provides that Presumptive Remedies will be required for sites that are intended to be used for residential purposes, licensed child care centers or schools (public, private or chartered), it does not appear to limit the application of Presumptive Remedies to such a small universe of sites. Indeed, by requiring the evaluation of the historic use of a property, the extent of contamination at a property and “any other factors deemed relevant” by NJDEP, the language of SRRA seems to open the door for NJDEP to require Presumptive Remedies at many more locations.

There are provisions in SRRA that allow a person conducting remediation to escape the use of a Presumptive Remedy.  The burden to do so, however, will be on the person performing remediation and that burden may be quite high.  Under SRRA, if the person responsible for conducting the remediation demonstrates to NJDEP that the use of an unrestricted use remedial action or a Presumptive Remedy is impractical due to conditions at the site, or that an alternative remedy would be as equally protective over time as a Presumptive Remedy, then an alternative remedy for the site that is as protective of the public health and safety as the Presumptive Remedy may be proposed for review and approval by NJDEP.  Although remedial actions using engineering and institutional controls are protective, it may be difficult to argue that such remedies are as protective as a permanent excavation remedy. That leaves only the argument that a Presumptive Remedy is impractical due to site conditions – perhaps NJDEP will not require excavation from beneath a building, for example. But what about site conditions that make excavation more costly without presenting technical difficulties – will such conditions permit use of an alternate remedy? It seems unlikely, but the final decision will rest with NJDEP.  Except to say that NJDEP may require the person responsible for conducting the remediation to supply the information necessary to show that an alternative remedy is protective of public health, safety and the environment, as the case may be, SRRA is silent about the requirements for proposing that NJDEP approve an alternative remedy.  In all likelihood, the question of whether an alternative remedy is proposed will be incorporated into a form that must cover LSRP submittals and will operate to trigger NJDEP heightened review under the statute.

As regards the pace of a remedy (whether “presumptive” or otherwise), SRRA provides that NJDEP must establish Mandatory Remediation Time Frames and Expedited Site Specific Time Frames for:

  • conducting receptor evaluations;
  • control of ongoing sources of contamination;
  • establishment of interim remedial measures;
  • addressing immediate environmental concern conditions;
  • performance of each phase of a remediation (Preliminary Assessment, Site Investigation, Remedial Investigation and Remedial Action);
  • completion of Remediation; and
  • any other activities that NJDEP deems necessary to effectuate timely remediation.

SRRA does not contain any requirements or insights for when an Expedited Site Specific Time Frame must or may be employed in lieu of a andatory Remediation Time Frame.  Rather, SRRA simply provides that, when establishing Mandatory Remediation Time Frames and Expedited Site Specific Remediation Time Frames, NJDEP must consider and evaluate each of the following factors:

  • potential risk to the public health and safety and the environment;
  • results of the receptor evaluation;
  • ongoing industrial or commercial operations at the site;
  • whether, for operating industrial or commercial facilities, there are releases of contamination to the groundwater of surface water from the site; and
  • site complexity.

Presumably, mandatory time frames will be established by rule-making.  Such an approach, however, does not seem practical for use in creating a site-specific expedited time frame.  It appears that NJDEP has been given the authority to override a mandatory time frame established by rulemaking by the exercise of discretion in a given case.  How NJDEP chooses to wield that discretion will be a critical point to monitor going forward.  While the law provides protection against abuses of discretion by government agencies, the deck is usually stacked in favor of the government and the fight against abuse of discretion can be costly.

According to SRRA, NJDEP must grant extensions to the Mandatory Remediation Time Frames and the Expedited Site Specific Remediation Time Frames whenever there is:

  • a delay by NJDEP in reviewing a technically and administratively complete permit application that was timely filed;
  • a delay in the provision of state funding for remediation after a technically and administratively complete application for funding has been timely filed; or
  • a delay by NJDEP in approving a technically and administratively complete permit required for long-term operation, maintenance and monitoring of an engineering control at the site.

Similarly, NJDEP may, on a case-by-case basis, grant extensions of the Mandatory Remediation Time Frames or the Expedited Site Specific Remediation Time Frames when:

  • the person responsible for conducting the remediation experiences a delay in access to a property and demonstrates that good faith efforts to obtain access have been taken and a Complaint has been filed in Superior Court demanding access to a property;
  • there are circumstances beyond the control of the person responsible for conducting the remediation, such as fire, flood, riot or strike; or
  • there are other site-specific circumstances which, in the opinion of NJDEP, warrant an extension.

SRRA provides that there will be significant consequences for those who fail to comply with either the Mandatory Remediation Time Frames or the Expedited Site Specific Remediation Time Frames.  If the person required to perform the remediation fails to meet a required time frame, NJDEP will make a written determination of the failure.  Following delivery of the written determination to the person required to perform the remediation, NJDEP may perform the remediation and make disbursements from the remediation funding source.

As with Presumptive Remedies, there are a broad array of variables that will complicate the process of creating regulations for Mandatory Remediation Time Frames and Expedited Site Specific Remediation Time Frames.  For instance, if the results of the Preliminary Assessments (PA) for sites A and B are generally similar in nature, but site A contains a condition of Immediate Environmental Concern (IEC)7 or has different site receptors than site B, it seems logical to conclude that sites A and B will have, or should have, differing mandates for the completion of each subsequent phase of their remediation. Moreover, under this scenario, it seems logical that an Expedited Site Specific Remediation Time Frame would be imposed at site A in order to address the threats presented by the IEC.  Just exactly how NJDEP will craft the Mandatory Remediation and Expedited Site Specific Time Frame regulations to account for the multiple variables presented in SRRA remains to be seen. However, at this point in time, it seems reasonable to speculate that the regulations for Mandatory Remediation Time Frames and Expedited Site Specific Remediation Time Frames will create a formula for calculating deadlines rather than any “across the board” proclamations.  For example, when the new regulations are promulgated, rather than saying that all pre-existing cases must complete a PA by the end of calendar year 2012 and a Remedial Investigation (RI) by 2014, etc., it is likely that the regulations will state that a pre-existing case must complete a PA within 180 days of adoption of the regulations and an RI must be completed within one year of the PA.  Further, it is expected that the new regulations will include provisions to impose Expedited Site Specific Remediation Time Frames for sites with IECs or sensitive receptors and that the imposition of an Expedited Site Specific Remediation Time Frame will suspend or stay the formulaic calculation for setting deadlines to complete the remaining phases of a remediation.

After the Mandatory Remediation Time Frames and Expedited Site Specific Remediation Time Frames are implemented by new regulations, the new time frames will – barring the creation of a “grace period” for existing Administrative Consent Orders (ACOs) – preempt and supersede any compliance timelines that are set forth within existing ACOs.  Everyone involved in site remediation will need to carefully review and comment on NJDEP’s rule proposals involving the development of “Presumptive Remedies,” Mandatory Remediation Time Frames, and Expedited Site Specific Remediation Time Frames under SRRA.

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