Dennis M. Toft, Robert H. Crespi and Todd W. Terhune, all members of Wolff Samson's Environmental Group, provided the reminder below to their law firm's clients and friends.
May 7, 2014 Remedial Action Permit Application Deadline
It is widely known in the environmental community that May 7, 2014 marks the statutory deadline for responsible parties to complete the Remedial Investigation at sites where a discharge was discovered before May 7, 1999. Unless an extension was obtained, environmental consultants across New Jersey are racing the clock to complete their delineation sampling and prepare a Remedial Investigation Report for submittal to the New Jersey Department of Environmental Protection ("NJDEP"). Less known is the fact that May 7, 2014 is also the deadline to submit a Remedial Action Permit application for previously closed sites.
A Remedial Action Permit application must be submitted by May 7, 2014 if a Restricted Use No Further Action ("NFA") letter or Limited Use NFA letter was issued for the site prior to May 7, 2012 by the NJDEP and a Remedial Action Permit has not already been issued.
Restricted Use NFA letters are issued where the remedial action employed at the site includes the continued use of engineering and institutional controls in order to meet the established health risk or environmental standards. Limited Use NFA letters are issued where the remedial action requires the continued use of institutional controls but does not require the use of an engineering control to meet the established health risk or environmental standards.
Engineering controls are physical mechanisms used to contain or stabilize contamination, such as an asphalt cap, building foundation, leachate collection system or fence. Institutional controls are used to provide legal notice of contamination that remains on site and may restrict the use of the site. Examples of institutional controls include deed notices, well restricted areas ("WRAs"), groundwater classification exception areas ("CEAs") and declarations of environmental restrictions.
Sites that were issued a Restricted or Limited Use NFA letter were required to submit certifications to the NJDEP on a biennial basis, certifying that the engineering or institutional control remains in place (known as a "biennial certification"). With the enactment of the Site Remediation Reform Act, a new requirement was imposed that sites with restricted cleanups also obtain a Remedial Action Permit. The Administrative Requirements for the Remediation of Contaminated Sites established the deadline for responsible parties at previously closed sites to apply for the Remedial Action Permit. Responsible persons that fail to apply for the permit by the deadline could be subject to a violation and assessment of a base penalty of $15,000.