Greenbaum Rowe Smith & Davis LLP

NJDEP Site Remediation Notification and Public Outreach Rules: One-Year - August 2009

The one-year phase-in period for the New Jersey Department of Environmental Protection’s Notification and Public Outreach Regulations (N.J.A.C. 7:E-1.4) (the “Rules”) is almost over.  September 2, 2009 is the compliance deadline for “responsible parties” at sites where a remedial investigation or single-phase remediation was initiated prior to the effective date of the Rules.  Responsible parties include anyone who is subject to an oversight document and any person conducting a clean up, such as an owner or operator subject to the Industrial Site Recovery Act (ISRA) or the leaking underground storage tank program.
 
The Rules are designed to inform local communities about the nature of remediation work being conducted in their area.  They apply to virtually all remediation work in New Jersey, other than heating oil tank cleanups at one-to-four family residential properties, until a no further action letter (NFA) is approved for the case.    If the responsible party cannot demonstrate that public notice was properly completed at the time of an NFA application, the application could be deemed deficient until the notice requirements are satisfied. 

The person responsible for conducting the remediation must provide public notice either by posting signs on the property, or by sending periodic notification letters to property owners, tenants, schools and child care facilities within 200 feet of the site boundary.  Richard D. Britton, P.G., VP of Site Investigation for Whitman, an engineering firm in East Brunswick, estimates roughly that the cost to conduct a sensitive population and resource search at approximately $3000, and the preparation and posting of a site information sign to be about $500.

A determination of off-site migration of contamination triggers the requirement to prepare and distribute a “fact sheet” to the local community, and publish the fact sheet in a local newspaper. Notice must include information about the site history and contamination, and contact information for the responsible party, the NJDEP and the NJDEP’s Office of Community Relations.

Compliance and Connection to Existing Legal Documents
The Rules add yet another layer of compliance requirements and transaction costs to New Jersey environmental clean up cases. Failure to comply with the rules may result in penalties of up to $8,000/day.  In addition, the notice letters, signs, facts sheets and newspaper ads are likely to result in greater scrutiny of contaminated properties by the community, interest groups and local governments.  Particularly where off-site migration of contamination has occurred or indoor air sampling is conducted, public notice and outreach may create or increase tensions between the responsible party and landlords, tenants, neighbors, employees, municipal officials and other affected parties. 

Responsible parties should carefully review the content of and alternatives for presentation and distribution of public notices.  They also should be aware that in suitable situations the Department is authorized to approve a public notice and outreach plan that varies from the requirements for notice letters, signs or fact sheets.  Depending upon the company, site and nature of the contamination there may be benefits to working with a public relations firm. 

The implications of the public notification and outreach requirements should be considered in connection with the provisions of existing legal documents, such as leases, confidentiality agreements, access agreements and purchase and sale contracts, as well as in the drafting of documents for new transactions.

Summary of Compliance Timeframes
September 2, 2009:    For existing cases, comply with notification and public outreach requirements for sites where the remedial investigation or single-phase remediation was initiated prior to September 2, 2008 or off-site migration was determined prior to that date.

Two weeks prior to initiating “new” remediation:    No later than 2 weeks prior to either initiating field activities associated with the remedial investigation of a multiphase remediation or initiating a single phase remediation:
  • Identify all sensitive populations and resources within 200 feet of the site boundary and record the information on the NJDEP’s Sensitive Population and Resource Checklist;
  • Generate a map that shows the location of the site and identified sensitive populations and resources;
  • Submit a copy of the completed Sensitive Population and Resource Checklist and the map to the recipients identified in the Rules; and
  • Provide public notice by posting signs, or by sending public notification letters to property owners, tenants, schools and day care facilities within 200 feet of the site.
Two weeks after posting signs:  If a sign is used for public notification, within two weeks after the sign is posted, submit required site information and a photograph of the sign showing its location and content in both electronic/digital format and hard copy to the recipients identified in the Rules.

Two weeks after determination of off-site migration: 
Within two weeks after the determination that contamination has migrated off-site in any environmental medium, prepare and distribute a fact sheet; update and redistribute the fact sheet at the completion of the remedial investigation when the extent of the contamination has been determined.

Four weeks after discovery of off-site contamination: 
Within four weeks of the discovery of off-site contamination:
  • Publish fact sheet as a display advertisement in a daily or weekly newspaper of general circulation in the vicinity of the site; and
  • Submit a copy of the fact sheet, a list of persons to whom the fact sheet was mailed, and a copy of the display advertisement to the recipients identified in the Rules.   
Four weeks after determining extent of contamination:  Where there is off-site migration, within four weeks after the horizontal and vertical extent of contamination has been determined:
  • Publish an updated fact sheet as a display advertisement in a daily or weekly newspaper of general circulation in the vicinity of the site; and
  • Submit a copy of the fact sheet, a list of persons to whom the fact sheet was mailed, and a copy of the display advertisement to the recipients identified in the Rules. 
Two year update letters:  If letters are used for public notification, additional notification letters that reflect the current condition and progress of the remediation must be sent every two years after the initiation of the single phase remediation of the remedial action until a No Further Action and Covenant Not to Sue letter is issued by the NJDEP (“NFA”) unless an alternate schedule is approved by the NJDEP.

Identification of Sensitive Populations
No later than 2 weeks prior to either initiating field activities associated with the remedial investigation of a multiphase remediation or initiating a single-phase remediation, the person responsible for conducting the remediation of the site must:
  • Identify all sensitive populations and resources located within 200 feet of the site;
  • Record the information on the NJDEP’s Sensitive Population and Resource Checklist;
  • Generate a scaled map that shows the location of the site and the location of each identified sensitive population and resource; and
  • Submit a paper copy and an electronic copy of the completed Checklist and the map to the NJDEP case manager, the NJDEP Office of Community Relations, the clerk of the municipality in which the site is located, and the designated local health official.
The following sensitive populations and resources must be identified: Residences; Potable Wells; Public and Private Schools with any students in grades K to 12; Child Care Facilities; Public Parks and Playgrounds; Surface Water; and Tier 1 Well-head Protection Areas.

The responsible party also must:
  • Determine if the site is located in a municipality where an Environmental Justice Petition neighborhood has been designated;
  • Determine if a language other than English is predominantly spoken by property owners or tenants in the area within 200 feet of the property boundary and record the information on the Sensitive Population and Resource Checklist; and,
  • Generate a scaled map that shows the location of the site and each identified sensitive population and resource.
Public Notice of Remediation Activities
Public notice of the remediation must be provided either by posting signs or by sending periodic notification letters.  All public notices must be in English and in a non-English language if the non-English language is predominantly spoken by property owners and tenants in the area within 200 feet of the site undergoing remediation.

 If public notice is provided by posting a sign(s):
  • Sign(s) must be posted no later than 2 weeks prior to initiating fields activities in new cases, and no later than September 2, 2009 where the remedial investigation was initiated prior to September 2, 2008;
  • A minimum of one sign must be posted so that it is clearly visible to the public, and must remain posted so that it is legible at all times until issuance of an NFA;
  • The sign must be at least 2 feet by 3 feet, have specific wording that is printed in font of sufficient size to be readable from the street or sidewalk, and contain the information required by the Rules, including contact information for the responsible party and the NJDEP;
  • Within 2 weeks after the sign is posted, site information, and a photograph of the sign showing its location and content must be submitted to the NJDEP case manager, the NJDEP Office of Community Relations, the municipal clerk, and the local health official; and
  • The sign must comply with all applicable local laws and requirements.
If public notice is provided by sending notification letters:
  •  The letters must be sent no later than 2 weeks prior to initiating fields activities in new cases, and no later than September 2, 2009 where the remedial investigation was initiated prior to September 2, 2008;
  • The letters must contain the name and location of the site; a description of the type of contamination identified, the affected environmental media and actions being taken; and contact information for the responsible party and the NJDEP Office of Community Relations;
  • The letters must contain a statement that the responsible party will provide a copy of all environmental reports to the municipality upon request;
  • Additional letters reflecting the current condition and progress of the remediation must be sent every 2 years after the initiation of the remedial action or a single remediation until an NFA is issued, or on an alternate schedule approved by the NJDEP;
  • The letters must be sent by certified mail or by using the USPS certificate of mailing service to each property owner, tenant, school and child care facility located within 200 feet of the site boundary; and
  • Each time letters are sent copies must be provided to the NJDEP case manager, the NJDEP Office of Community Relations, the municipal clerk; and the designated local health official. 
Enhanced notice for Off-Site Migration
Additional notification and outreach requirements are triggered by a determination that contamination has migrated off-site.  The enhanced notification requirements involve the preparation, distribution and publication of “fact sheets.” 

Determination of Off-Site Migration.  
According to NJDEP guidance, contamination, for purposes of  this requirement, is assumed to be “a contaminant detected above applicable remediation standards for the relevant medium.”  NJDEP guidance indicates that while the “determination that contamination has migrated off-site standard for triggering a fact sheet requires data to confirm presumed off-site migration, the Department expects responsible parties to act expeditiously to confirm or rule out whether contamination has migrated off-site once there is a reasonable presumption that it has.”

Timing.  
Fact sheets must be completed and distributed within two weeks of determining that contamination has migrated off-site, or if contamination has migrated off-site before September 2, 2008, by September 2, 2009.  They must be updated/redistributed at the completion of the remedial investigation when the extent of the contamination has been determined.

Within four weeks of the discovery of off-site contamination, and within four weeks after the horizontal and vertical extent of contamination has been determined pursuant to the Technical Requirements for Site Remediation, the responsible party must:
  • Publish the fact sheet as a display advertisement in a daily or weekly newspaper of general circulation in the vicinity of the site; and
  • Submit a copy of the fact sheet, a list of the fact sheet recipients, and a copy of the display advertisement to the NJDEP case manager, the NJDEP Office of Community Relations, the municipal clerk and the designated health official.
Fact Sheet Content/Distribution.  
The fact sheets must contain a significant amount of information concerning the site location and history, the nature of contamination (including the contaminants of concern, the affected media, concentrations, applicable remediation standard, extent and source), and remedial actions taken to minimize impact to the public.

Contact information for the responsible party, the NJDEP and the NJDEP Office of Community Relations must be included in the fact sheet.

Fact sheets and updates must be in English and in a non-English language if the non-English language is predominantly spoken by property owners and tenants in the area within 200 feet of the site undergoing remediation.  They must be sent by certified mail or by using the USPS certificate of mailing service to each property owner and tenant within 200 feet of the site boundary.

Exceptions.  
The enhanced public notice requirements for off-site migration of contamination do not apply if the contamination has only affected one adjoining property and the affected contaminated medium is limited to soil.  In that instance, notice may be limited to the affected adjoining property owner and tenant(s).  Also, the responsible party is exempt from the off-site migration/fact sheet requirements if the contamination migrates off-site and the affected media is limited to historic fill.

Alternate Public Notice Plans
A responsible party may propose an alternative public notice and outreach plan to the Department for review and approval that varies from the requirements of the Rules.  NJDEP guidance encourages responsible parties to submit an alternative plan for sites that conducted adequate public notification before the Rules were promulgated and for sites where an alternative method of public notification may “better suit the community.”

For example, according to the Rules, notice letters and fact sheets must be distributed to all property owners and tenants within 200 feet of the “site boundary” regardless of the size of the site or the area where the contamination exists.  According to NJDEP guidance, “in most cases, the site boundary is easily identified as the block and lot on the municipal tax map. In cases where the remediation is being conducted on a small subsection of an extremely large site, the remediating party can request the Department to approve an alternative boundary for the purpose of public notification.”

The NJDEP may require additional public outreach if it determines that additional outreach is needed or that there is a “substantial public interest” in the remediation activities. Substantial public interest may be evidenced by the NJDEP’s receipt of a petition from persons living or working in the site vicinity or a written request by a municipal official.  Additional outreach may include publicizing and hosting an information session or public meeting, publishing a notice containing site information in the local paper, or establishing a local information repository.

Resources
Technical Requirements for Site Remediation
http://www.nj.gov/dep/srp/regs/techrule/

Public Notice/Outreach Guidance
http://www.nj.gov/dep/srp/guidance/public_notification/
•    Guidance for completing the Sensitive Population and Resource Checklist
•    Using i-MapNJ to Identify Sensitive Populations
•    Guidance for Notification Signs and Letters
•    Guidance for Notification and Public Outreach Requirements Triggered By Determination that Contamination Has Migrated Off-Site
•    Public Notification and Outreach Guidance for Retail Gasoline Service Stations
•    General Newspaper Ad Template for Notification of Environmental Investigation & Cleanup

Public Notice/Outreach Frequently Asked Questions
http://www.nj.gov/dep/srp/guidance/public_notification/public_notification_faq.htm

Sensitive Population and Resource Checklist
http://www.nj.gove/dep/srp/community

Environmental Justice
 http://www.nj.gov/dep/ej/.

Census Information/Predominant Language
http://factfinder.census.gov/home/saff/main.html

Site Remediation Program Community Relations
http://www.nj.gov/dep/srp/community/ 


For additional information, contact:
David A. Roth, Esq.
Chair, Environmental Practice Group
droth@greenbaumlaw.com

Joanne Vos, Esq.
Member, Environmental Practice Group
jvos@greenbaumlaw.com