Four Steps to that No-Further-Action Letter

By: Wayne C. Howitz
Industrial Site Evaluation

Over the years, developers, banks and other lending institutions have become increasingly aware of environmental responsibilities and liabilities. This is evidenced by the contractual agreement between private parties that requires a "No Further Action/Covenant Not to Sue" letter (NFA/CNS) being obtained as one of the prime contractual obligations for financing to be approved to develop or to transfer the property.

This type of contractual stipulation between private parties has focused additional pressures on the Site Remediation Program. While these contracts specify the NFA/CNS as the end product, the contracts rarely specify that the quality of work conducted at a site to obtain the NFA/CNS must be in accordance with the Technical Requirements for Site Remediation (N.J.A.C. 7:26E). The Department is then inadvertently placed in a position to judge the quality of the remedial effort within a "private party" specified timeframe. Poor quality work at this critical period only leads to frustration with the developer, lending institution and the Department. Only through open communication and predictable requirements can we work in remediating a contaminated site for development.

The Site Remediation Program reviews all submissions in accordance with the Technical Requirements for Site Remediation. The technical requirements provide the minimum requirements necessary to identify areas that require investigation and remediation. Review and approval times can be reduced (along with frustration levels) when the technical requirements are followed. All too often, the Site Remediation Program has seen contracts terminated or penalties incurred when remediations are not conducted in accordance with the Department's technical requirements. This often results in the case management team spending additional time and resources performing the work the consultant should have provided. This not only delays reviews and approvals, but also diverts limited resources from other projects.

Taking Department review times into account when establishing contractual milestones is also critical. The Department's review times are specified in the Environmental Accountability and Management Act (N.J.S.A. 13:1D-114) as follows:

 

	Preliminary Assessment/Site Investigation Review (PA/SI)	45 days
	Remedial Investigation Review (RI)	60 days
	Remedial Action Workplan Review (RAW)	120 days

The Site Remediation Program has dedicated professional staff who will do everything within their authorities to conduct timely reviews and approvals. In order to minimize or eliminate any delays, the following should be used as a guide.

1. If approvals are required from the Department, our review times must be incorporated within your schedules.
   
   
2. Identify and delineate all areas of concern for which approval is needed. For example, coordinating RI work on a single underground storage tank system will not result in a full site NFA/CNS unless all potential areas of concern are evaluated under a PA/SI and remediated as appropriate.
   
   
3. Perform all work in accordance with the Department's Technical Requirements for Site Remediation (N.J.A.C. 7:26E). Contracts should specify that the remedial work must be conducted pursuant to N.J.A.C. 7:26E. This will focus the contractual obligation on compliance with N.J.A.C. 7:26E.
   
   
4. Notify your case manager in advance of any critical milestones. The key to a timely review and approval is communication.