Request for Stakeholder Input

Request for Stakeholder Input — Step 2
Posted 19 April 2010

On November 4, 2009, the Department filed Interim Rules with the Office of Administrative Law as required by the Site Remediation Reform Act (“SRRA”), which created a new program for cleaning up contaminated sites in New Jersey.  The law authorizes the creation of an independent board to license professional environmental consultants who oversee the remediation of these sites. These rules, known as the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) rule, became effective upon filing as authorized by SRRA at N.J.S.A. 58:10C-29 without the opportunity for public comment. The Department is now preparing to propose to readopt the ARRCS Rules. That proposal will be subject to formal public comment under the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. and thereafter, will be adopted before the expiration date of the specially adopted interim rules. 

In order to engage the public early in its efforts at implementing SRRA and the licensed site remediation professional program, the Department has conducted an extensive public outreach program concerning this new program, including speaking engagements before a variety of groups that represent the regulated community, business and industry, and the environment. Additionally, the Department launched a website dedicated to site remediation reform, https://www.nj.gov/dep/srp/srra/, and that website is continuously being updated with new information.

On February 23, 2010, the Department published Step 1 of a Request for Stakeholder Input on its Web site inviting interested parties to identify broad-based issues with the ARRCS rule for further stakeholder input.  The request noted that the next step would be for the Department to post and distribute via the SRRRA listserve, the top issues and ask stakeholders to provide detailed discussion on these issues. The Department reviewed the submitted issues and identified five subject areas, which it has outlined below. The Department is seeking public input on these questions to help inform and guide the Department as it prepares to propose to readopt the ARCS rules.

The Department invites all stakeholders and other interested parties to submit their ideas concerning these questions to SRRA@dep.state.nj.us. The Department would appreciate receiving all comments no later than close of business May 17, 2010. (Now extended to close of business May 24, 2010.) Please ensure that the subject line read: Stakeholder Input.

1.  Regulatory and Mandatory Timeframe Extensions

Issue:  Are the regulatory and mandatory timeframe extension provisions in the ARRCS rule at N.J.A.C. 7:26C-3.1 to 3.5 reasonable and adequate to address clean-up delays that may prevent a remediating party from meeting these deadlines?

Background:  The intent of the Site Remediation Reform Act (SRRA), N.J.S.A. 58:10C, was to ensure that contaminated sites are remediated in an efficient and expedient manner.  To achieve this goal the Department’s Technical Requirements for Site Remediation, N.J.A.C. 7:26E establishes regulatory timeframes for the completion of certain remediation tasks. In addition, SRRA requires the Department to promulgate mandatory timeframes for certain remedial activities (see N.J.S.A. 58:10C-28). Recognizing that there may be site-specific situations which could result in a remediating party not achieving these timeframes, the Legislature required the Department to adopt  rule provisions for granting extensions of these timeframes. The mandatory timeframe provisions are found in the ARRCS rule at N.J.A.C. 7:26C-3.1 through 3.5.   When developing these timeframes, the Department established timeframes it believed would be appropriate for the majority of clean-up sites in New Jersey. To address the remediation of sites that fall outside of these typical parameters, the rules include provisions that provide for extensions to both the mandatory and regulatory timeframes.

The Department is seeking input on how to achieve the statutory mandate in SRRA to ensure that contaminated sites are remediated in an efficient and expedient manner while allowing for stakeholder concerns that the timeframes  are unachievable and unrealistic particularly for large sites with many areas of concern and for sites where operational issues make remediation from SRRA.

2.  Process For New And Existing Cases

Issue:  What regulatory amendments should the Department make to better define the difference in the remediation process for existing cases (those triggering the requirement to remediate a site prior to November 4, 2009) and new cases (those triggering on or after November 4, 2009)?

Background: SRRA fundamentally changes the way site remediation is regulated in New Jersey, having a most significant affect for all new discharges and other remediation triggers that occur on or after November 4, 2009. As required by SRRA at N.J.S.A. 58:10C-29, the Department adopted the ARRCS rule as an interim rule to serve as a bridge between the site remediation program in existence prior to the adoption of SRRA and the new program established by the law. Until May of 2012, the Department’s remediation rules will serve this dual function, continuing to provide the regulatory framework for the traditional site remediation paradigm, as well as the regulatory framework for the new LSRP paradigm.  As of May, 2012, only the new site remediation paradigm will apply.

The Department recognizes that the transition period from the traditional paradigm to the LSRP paradigm poses special challenges.  The Department is therefore seeking constructive and specific suggestions on improving and streamlining these regulations. Those who comment must keep in mind that during this interim period the rules must address the requirements related to both parties who initiated remediation prior to and those who initiate remediation after November 4, 2009.

3.  Record Retention For The Person Responsible For Conducting The Remediation

Issue:   Are the record retention and submittal requirements in the ARRCS rule at N.J.A.C. 7:26C-2.5 overly burdensome? If so, what regulatory amendments would make this requirement less onerous but ensure the protectiveness of the RAO?

Background: The Department has codified the record retention requirements of the person responsible for conducting remediation at N.J.A.C. 7:26C-2.5. This requirement mirrors the records retention and submittal requirements imposed on the LSRP by ARRCS at N.J.S.A. 58:10C-20 and codified at N.J.A.C. 7:26C-6.2(a)2ii. The Department adopted the record retention requirements for the person responsible for conducting the remediation in order to ensure that records the Department might need to confirm the protectiveness of a RAO are available from a source other than just the LSRP.  However, unlike the record retention policy required of the LSRP, there is no statutory provision requiring a person responsible for conducting the remediation to maintain records.

In light of the fact that the LSRP has extensive and enduring records retention requirements, the Department is considering whether to limit the records retention requirements of the person responsible for conducting remediation.

The Department is considering amending the rule at N.J.A.C. 7:26C-2.5 to allow the person responsible for conducting remediation to discard the listed records 10 years after the issuance of a full site NFA issued by the Department or full site RAO issued by a LSRP.  This would reflect the record retention requirements currently found in Department administrative consent orders and remediation agreements. The Department seeks feedback on this potential amendment and seeks other ideas to affect a balance between the Department’s and the public’s need for access to the information versus the impact the requirement to maintain the information may have on the person responsible for conducting remediation.  In providing comments, please consider the statutory requirement that the LSRP also retain the same records.

4.  Record Retention for LSRP

Issue: Is the records retention requirement for Licensed Site Remediation Professionals (LSRP) too burdensome? If so what regulatory amendments will ease the burden on the LSRP but ensure that the Department meets its statutory obligations?

Background: SRRA at N.J.S.A. 58:10C-20 requires that LSRPs retain a comprehensive list of records without listing a date when the LSRP can dispose of the records, and that the LSRP submit 3 electronic copies of the records to the Department at the time the response action outcome (RAO) is filed. The Department has codified this statutory requirement at N.J.A.C. 7:26C-6.2(a)2ii. Stakeholders contend that the statutory requirements imposed on the LSRP are burdensome and excessive, with specific objection to the inclusion of financial documents and contractual documents that may contain sensitive material such as consultant pricing information. The Department believes that the retention and submittal of records is a key consideration in the Department’s ability to effectively inspect and review remediation activities conducted by a LSRP, and to meet its obligations under OPRA. 

In light of the fact that the LSRP’s records retention requirements are specified in the statute, the Department has little flexibility as to how much it can revise these rules; however, the Department seeks input on regulatory changes that would meet the requirements imposed by the statute and at the same time, address the issues raised.  For example, the Department is considering whether it could hold the requirement to submit certain documents in abeyance unless or until the document is specifically requested by the Department. In addition, the Department is interested in obtaining input regarding which documents might be routinely submitted with the RAO and which might be submitted only upon a request for submittal from the Department.

5.  Cleanup And Removal Costs

Issue:  What regulatory amendments would facilitate a third party action to recover cleanup and removal costs from a responsible party considering that the definition of   “cleanup and removal costs,” in the Spill Compensation and Control Act (Spill Act) at N.J.S.A. 58:10-23.11b requires a party to obtain the Department’s written approval of a remediation as a prerequisite to bringing an action?

Background: Under the old remediation paradigm, the Department issued Memoranda of Agreement or No Further Action Letters as the mechanism a private party would use to show Department approval of a remediation.  These documents were used to meet the prerequisite to bring an action to recover costs against a responsible party.  Under the new remediation paradigm, the Department will no longer be issuing these documents. Instead a licensed site remediation professional will issue a response action outcome as the “approval” of the remediation.  Stakeholders have expressed concern as to whether there is a mechanism under this new approach that documents the approval required in the Spill Act.

The Department is considering amending the ARRCS rule to acknowledge that a response action outcome issued by a licensed site remediation professional is equivalent to a no further action letter issued by the Department for the purpose of bringing a third party action against a responsible party to recover clean-up costs.  However, a response action outcome invalidated by the Department pursuant to SRRA at N.J.S.A. 58:10C-22, would not meet the prerequisite of Department approval.  The Department is seeking feedback on this suggested regulatory change and alternate ideas for addressing the issue.

6. Presumptive Remedies

Issue: What information can be provided to document that a project falls within the grandfather protections in SRRA relating to presumptive remedies?  In addition, what language needs to be incorporated into the rules and guidance relating to presumptive remedies to effectuate the use of alternative presumptive remedies as provided for under SRRA?

Background:  SRRA at  N.J.S.A. 58:10B-12g(10) authorizes the Department to "establish presumptive remedies, use of which shall be required on any site or area of concern to be used for residential purposes, as a (licensed) child care center, . . . as a public school, . . . or a charter school.” Under SRRA the requirement to use presumptive remedies is required for "any remediation initiated" after May 7, 2010. N.J.S.A. 58:10B-12g(1). For "any remediation initiated between May 7, 2009 and May 7, 2010 the Department "may require" the use of presumptive remedies. N.J.S.A. 58:10B-12g(1). Alternative presumptive remedies are permitted when the remediating party demonstrates to the Department that either a presumptive remedy identified by Department is "impractical due to conditions at the site" or if the proposed alternative is "equally protective over time" as the presumptive remedy identified by the Department. N.J.S.A. 58:10B-12g(10). The Department is interested in obtaining input on these two issues.