september 2007

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

BACKGROUND

On August 6, 2007, NJDEP proposed amendments to its Technical Requirements for Site Remediation, as directed by a 2006 amendment to New Jersey’s Brownfield Law. The Brownfield Law amendment requires NJDEP to facilitate public outreach by compelling parties who conduct remediation activities in the state to notify the public of certain of these activities.

The amended Brownfield Law applies only to parties who have executed or are otherwise subject to an NJDEP oversight document, and already requires certain notice to the municipality where remediation is taking place. However, NJDEP's proposed rules, if adopted, would require the party conducting the remediation, whether under an NJDEP oversight document or not, to comply with the enhanced notice requirements.

The proposed rules require the party conducting the remediation to undertake the following tasks no later than two weeks prior to initiating remedial investigation field activities or a single-phase remediation:

Identify sensitive populations and resources within 200 feet of the site being remediated and submit a checklist of those locations with a scaled map to NJDEP with a copy to the municipality.

• Sensitive populations and resources consist of residences, potable wells, public and private schools, child care facilities, public parks and playgrounds, surface water, and Tier I well-head protection areas.

• The party must also identify in the checklist whether any of the populations are non-English speaking and must specify the languages spoken.

Post a 2 foot x 3 foot sign on the site being remediated OR send a letter providing notice of the remediation to property owners and tenants residing within 200 feet of the contaminated site. Signs and letters must be in English and other languages spoken by residents within any sensitive populations.

• Proof that the sign has been posted must be provided to certain NJDEP and local officials. The sign must remain at the site until NJDEP issues a No Further Action letter.

• If letters are sent, they must include certain prescribed information, including a brief description of the contamination and an indication that environmental reports will be provided to the municipality upon request. NJDEP and local officials must be copied on the letters.

Conduct additional community outreach, such as establishing a local information repository and hosting a public meeting, in cases where substantial public interest in the remediation activities has been demonstrated.

Notify property owners and tenants within 200 feet of the site boundaries, and NJDEP as well as certain local officials, in instances where a remediator proposes to bring contaminated fill material onto the site in an amount that exceeds what is needed to complete the remediation or construction of an NJDEP-approved engineering control.

If contamination has migrated off-site, then within two weeks of its discovery, the party conducting the remediation must:

Publish a fact sheet with information concerning, among other things, the site's commercial and industrial history; a description of the contamination; the source of the contamination, if known; the date the contamination was identified; the applicable remediation standards; actions being taken to minimize impact to the public; contact information.

The fact sheet must be mailed to anyone identified on the sensitive populations and resources checklist and must be published as a display advertisement in a daily or weekly newspaper of general circulation in the vicinity of the contaminated site within four weeks of the discovery of off-site contamination. Proof that the fact sheet has been mailed must be provided to NJDEP and local officials.

If the off-site contamination has affected only one adjoining property, and only soil has been impacted, notice is only required to be provided to the adjoining property owner or tenant.

NEXT STEPS

We recommend careful review of the proposed rules to determine how they may impact your remediation efforts and your business. A public hearing on the rule proposal will be held on Friday, September 7, 2007.

If you have any questions concerning NJDEP’s proposed amendments to its Technical Requirements for Site Remediation, please contact Susan C. Karp.