october 2008

NJDEP Adopts Rules to Require Notification to the Public of Certain Remediation Activities

BACKGROUND

In September 2008, NJDEP adopted rules designed to keep the public informed of certain remediation activities by requiring the posting of signs or the mailing of letters to property owners and tenants within 200 feet of the site boundary.

The rules also require that NJDEP be notified of sensitive populations in the area (residences, potable wells, schools, parks and the like) and the mailing of fact sheets with more detailed information regarding contamination which has migrated off-site.

The rules were mandated by a 2006 amendment to the New Jersey Brownfield Law which required NJDEP to apply the rules to parties in or subject to NJDEP oversight documents. The rules broaden the applicability of the notice requirements to include anyone performing a remediation.

As adopted, the rules are nearly identical to those proposed in August 2007 (see our September 2007 Legal Update here). The following key revisions should be noted:

  • The requirement to identify all non-English speaking within 200 feet of the site boundary and to include the languages spoken by those people in the notices has been relaxed to require only those non-English languages which are predominantly spoken. NJDEP has issued guidance in this regard.

  • The adopted rules allow for the use of a certificate of mailing in addition to certified mail to document mailing of notice letters. This method does not require signature by the recipient and can be addressed to “current resident”.

    Parties who commenced the remedial investigation phase of their cleanup or a single phase remediation prior to September 2, 2008 are provided a one year grace period to come into compliance with the rules.

    Violations for a number of the provisions of the rule are considered non-minor violations which carry a base penalty of $8,000.

    RECOMMENDATIONS

    Parties conducting remediation should develop a system to ensure compliance with the public notification rules and should incorporate compliance into their site remediation strategies to avoid penalties and administrative delays.

    If you have any questions concerning NJDEP’s public notification rules or site remediation in New Jersey, please contact Susan Karp.