SteveK November 13th, 2009
The NJDEP has recently issued documents to provide direction and guidance for remediation of contaminated sites by Licensed Site Remediation Professionals (LSRPs) including Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) Rules and the Guidance for the Issuance of Response Action Outcomes (RAO) under Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq. (summarized in a prior posting NJ Governor signs law addressing remediation of contaminated properties ). The Guidance for Issuance of the RAO provides direction to the regulated public and the LSRPs in the structure and requirements for the appropriate issuance of an RAO, which, in essence, replaces the No Further Action letter (NFA). Under the SRRA an RAO constitutes the LSRP’s professional opinion that there are either a) no longer discharged hazardous substances or wastes present at the site or in the area that requires remediation (area of concern or AOC), or b) that are no discharged contaminants at the site, AOC, or migrating from the site above the regulatory limits for such substances, and the remedial action taken was “protective of public health, safety and the environment.”
The two primary factors to determine which RAO is to be issued:
The scope of the remediation: whether the remediation will involve the entire site or just particular areas of concern; and
Whether the remedy will involve institutional or engineering controls.
The Guidance suggests that reporting obligations can be streamlined when the scope of the remediation involves the entire site as opposed to submissions on each AOC. Institutional controls can be employed where they “protect the public health and safety and the environment.” The LSRP is to designate each RAO according to the following categories:
An Unrestricted Use RAO: where there are no contaminants found or where all contaminants are remediated to the most stringent standards.
A Limited Use RAO: where a) the soil is remediated at a non-residential site to the more restrictive standard of either non-residential direct contact or the impact to ground water soil standard, and there is a remedial action permit issued by the NJDEP for a deed notice, or b) contaminants exist above applicable remediation standards for ground water, no engineering controls are employed, and the NJDEP has issued a ground water remedial action permit.
A Restricted RAO: where an engineering control, in combination with an institutional control, has been issued by the NJDEP to ensure that the remedy will provide protection for the long-term.
The Guidance sets forth when it is appropriate for an LSRP to issue an RAO, including when contaminants remain on site. The NJDEP identifies 9 scenarios where it is permissible to issue an RAO when contaminants remain on site. Some the scenarios include: where the contamination is migrating onto the subject property and the actions on the site did not contribute to the contamination; where there are naturally occurring contaminants; where contamination has been remediated and a remedial action permit with engineering controls has been issued; where groundwater contamination is found on-site that has not triggered a ground water remedial investigation and has not otherwise been investigated; where the remediation has been completed under an approved RAW but the standards have changed in the interim. RAOs involving ground water remedies can be issued where the ground water is remediated to Ground Water Remediation Standards, which allows an unrestricted RAO; where ground water remains above the Standards where a limited use restriction is employed (which requires that the LSRP demonstrate a decreasing trend of contaminants), or that contaminants remain above Standards due to the technical impracticability of achieving the Standards (requiring engineering controls and remedial action permit.)
The Guidance includes a shell RAO to be followed by the LSRP. The shell document presents language to be used by the LSRP for the various remedial options. The LSRP is prohibited from modifying the language of the shell RAO unless specifically permitted by the Guidance.
The regulated community, their counsel and consultants have been eagerly awaiting direction from the NJDEP on the new program with the hope that the process will be more efficient, that site closure can be effectuated more quickly and that the costs will also be decreased without compromising the health and safety of the public and the environment. The Rules and Guidance documents that have been issued have begun to provide the framework for the new program; hopefully the expectations of the public will be realized.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental Department.