Site Remediation Reform Act: Will the New Permit Program for Operation, Maintenance and Inspection of Engineering and Institutional Controls be Different from NJDEP’s Current Biennial Certification Program?

October 30th, 2009 | Posted by: Christopher DeGrezia 0| comments:

Site Remediation Reform Act - Biennial CertificationCurrently, NJDEP requires a biennial certification for engineering and institutional controls.  Every two years, a certification must be prepared, signed and submitted to NJDEP reporting on the monitoring, inspection and maintenance for caps, covers, fences, signs, Classification Exception Areas (CEAs), deed notices and other engineering and institutional controls implemented as part of the remediation of a contaminated site.  Under the Site Remediation Reform Act (SRRA), NJDEP will now be implementing a new permit program for this purpose.  NJDEP is wrestling with the best way to move forward with the transition of these requirements into a permit program.

One of the most important potential changes with the new permit program could be an expensive one.  NJDEP is poised to require insurance or another form of financial assurance to guarantee that money is available to operate, maintain and inspect approved engineering and institutional controls.  A few exemptions to this requirement have been provided under SRRA:

  •  government entities;
  • a person not otherwise liable for cleanup and removal costs under the Spill Compensation and Control Act who purchased a property prior to SRRA’s effective date (or before May 7, 2009);
  • a person remediating their primary or secondary residence;
    the owner or operator of a child care center remediating a licensed child care center;
    a person responsible for remediating a public, private or charter school; and
  • the owner or operator of a small business remediating their business property.

SRRA regulations should provide further clarification of these exemptions.  In fact, NJDEP always had the authority to require some sort of financial assurance. In practice, however, NJDEP seldom enforced this requirement.  But, it appears that NJDEP is now, for the first time, serious about implementing this new funding requirement as required by SRRA. In addition, we can anticipate that NJDEP will implement a new fee program for these new permits.  An initial application fee, annual fee and periodic renewal fee appear likely as part of this program. Currently, NJDEP fees for review of a biennial certification submission is $375.  The new permit program will probably result in higher fees for permit holders.

Another issue with the present biennial certification program is who should be preparing and submitting the required certification.  The NJDEP regulations at N.J.A.C. 7:26E-8.4(a)1 list those individuals and entities defined as the “person responsible for monitoring the effectiveness of a remedial action.” Identifying the party responsible for compliance with the biennial certification requirements was often a difficult issue as parties attempted to insure that this ongoing obligation was met into the future. With the new permit program, one party should be identified and named as the permittee for the purpose of monitoring, inspecting, maintaining and reporting on engineering and institutional controls.  Although NJDEP is unlikely to let others completely off the hook, the permit should identify the primary or lead person responsible.  As with the old system, parties will need to carefully draft documents to name the responsible party and insure compliance with these requirements (and proper protections and indemnifications if the lead responsible party fails to comply with the new permit requirements).

NJDEP is authorized to implement this new requirement by issuing permits, permits by rule or general permits. It is likely that the final regulations will include each of these regulatory options in one form or another.  Currently, NJDEP is considering two types of permits: a Soil Remedial Action Permit issued for engineering controls and a Groundwater Remedial Action Permit issued for CEAs groundwater natural attenuation and groundwater pump and treat systems.  Based on recent information from NJDEP, a permit for groundwater may be issued after initial monitoring confirms that natural attenuation or a treatment program is a “success.” We will need further guidance from NJDEP to determine when a groundwater permit may be issued. The current requirement to issue a certified report to NJDEP every two years will likely become a condition of the new permits.  It appears that NJDEP will have discretion to determine whether persons with engineering and institutional controls approved prior to the effective date of SRRA (or May 7, 2009) are part of the new permit program.  The nature of other “boiler plate” permit conditions is unknown at this time.  NJDEP has an opportunity to add all sorts of provisions into the conditions of a permit (whether individual, general or by rule).

Whether general or individual permits, a careful review of the new permit conditions will be needed to determine whether these provisions add or create new liabilities for permittees.  If a CEA requires revision, what will be the permit modification process?  How will non-compliance with these new permits be handled by NJDEP?  Also, will Licensed Site Remediation Professionals (LSRPs) be able to issue the new permits along with a Response Action Outcome (RAO) (and, later, review biennial certifications on the status and conditions of engineering and institutional controls)?  Time will tell as NJDEP implements this new program.  As with all of the new SRRA requirements, the proposed of regulations to implement this new permit requirements must be read in order to determine the full impact and cost of this permit program.

If you need assistance or have any specific questions, feel free to contact: 

Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Leave a Reply

What's this?

You are currently reading Site Remediation Reform Act: Will the New Permit Program for Operation, Maintenance and Inspection of Engineering and Institutional Controls be Different from NJDEP’s Current Biennial Certification Program? at New Jersey Zoning and Land Use Law.