april 2007

NJDEP Enforces Biennial Certification and CEA Groundwater Sampling Requirements

In March 2007, NJDEP's Bureau of Operations and Maintenance, charged with monitoring engineering and institutional controls, began to enforce the department’s regulations for submission of Biennial Certifications and Classification Exception Area (CEA) groundwater sampling requirements.

Enforcement starts with letters from NJDEP to parties with either a CEA or a Deed Notice who have not submitted Biennial Certifications, and to parties with CEAs who have not submitted groundwater sampling results at the end of the duration period set forth in the CEA.

As background, NJDEP’s technical regulations were amended in 2003 to require submission of a report every two years from the date a groundwater CEA was established and the date a Deed Notice was recorded. The submission, known as a Biennial Certification, must address the specific items set forth in the technical regulations that demonstrate how these engineering and institutional controls continue to be an appropriate remedy for the contaminated soil and groundwater permitted to be left behind at the site. The regulations also require groundwater sampling at the end of the duration period set forth in the CEA to confirm the accuracy of the date when groundwater was projected to meet NJDEP's cleanup criteria.

NJDEP's letters demand submission of Biennial Certifications by September 18, 2007, and require the submission of groundwater sampling results, if already collected, within 90 days of receipt of its letter and, if not yet collected, within 180 days of receipt of the letter. The letters further state that NJDEP will not review sample results unless the party obtains NJDEP oversight under its voluntary cleanup program by entering into a Memorandum of Agreement.

It should also be noted that NJDEP has sent letters to parties who had received No Further Action letters prior to the rule adoption.

Failure to submit Biennial Certifications and failure to perform the requisite groundwater sampling at the end of the CEA duration period are violations that carry significant penalties.

If you have any questions concerning the proposed regulations on notification requirements, please contact Susan C. Karp.