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Site Remediation News
July 2000 (Vol 12 No 1) - Article 01

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Biennial Requirements for Deed Notices and Engineering Controls

By: Gerald M. Hahn and Kevin F. Kratina
Bureau of Underground Storage Tanks

As a result of the January 6, 1998 "Brownfield and Contaminated Site Remediation Act" N.J.S.A. 58:10B-1 et seq., specifically N.J.S.A. 58:10B-13.1a(2)(a), "a covenant not to sue shall contain the following, as applicable: a provision requiring periodic monitoring for compliance, and submit to the Department, on a biennial basis (every two years), a certification that the engineering and institutional controls are being properly maintained and continue to be protective of public health and safety and of the environment. The biennial certification shall state the underlying facts and shall include the results of any tests or procedures performed that support the certification…".

Due to this statutory requirement, the Department began issuing No Further Action\Convenant Not to Sue letters with an institutional control (i.e. a Classification Exception Area and/or Deed Notice) that contain a condition requiring biennial certifications attesting to the periodic monitoring and protectiveness of the controls. A covenant not to sue is included in each no further action letter issued for an area of concern or a full site. As a condition of the No Further Action\Convenant Not to Sue letters, and in order to maintain the benefit of the Covenant Not to Sue, the engineering and institutional controls must be evaluated every two years to insure these measures remain protective. For the purposes of this article, biennial requirements for Deed Notices will only be discussed at this time. Additional information regarding Classification Exception Area biennial certification requirements will be presented in future articles.

The Brownfield Amendments to the Technical Requirements for Site Remediation codified the biennial certification requirements at N.J.A.C. 7:26E-6.4 (g). This guidance is intended to assist in meeting those requirements.

Please note that the procedures below are easy to accomplish if land and resource uses have not changed in and around the institutional controls. If land and resource uses change for a parcel of property, inclusive of a Deed Notice, the person(s) responsible must demonstrate within the biennial certification that these changes remain protective of public health and safety and of the environment.

One of the more frequently asked questions is who has the obligation to monitor for compliance and submit the biennial certification to the Department when an institutional control is part of a remedial action for a contaminated site? The person(s) responsible for complying with these provisions include: (1) the person who undertook the remediation, whether that person is a responsible party or an innocent purchaser, pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11g, or any other person (e.g., non-owner developer); (2) the owner at the time the Department issues the no further action letter, and (3) any subsequent owner, lessee or operator of the site at the time that the biennial certification is required (hereinafter collectively referred to as "persons responsible").

Another frequently asked question is what is required in a biennial certification to ensure that a remedial action with a deed notice remains protective of the public health and safety and of the environment?

Deed Notice

A deed notice is required when contaminated soils are present at a site above the Residential Direct Contact Soil Cleanup Criteria before the issuance of the No Further Action\Covenant Not to Sue letter. If a property is sold, the deed notice will provide notice to subsequent owners and other prospective users (i.e. lessee's, etc.). The deed notice will provide information regarding the site, presence of contaminants and any compliance monitoring requirements. The requirements may include; but not limited to; cap maintenance, inspection requirements and notification requirements, etc. In order to comply with the biennial certification, the person responsible for monitoring the institutional control must certify:

  • That the deed notice has been properly filed and remains on file with the office of the county recording officer and no subsequent notices have been filed to nullify the original notice;

  • That the land use is consistent with the use restrictions identified in the deed notice; The person responsible submitting the information must ensure that land use did not change in a manner that may create an unacceptable exposure. Current land use and any land use changes subsequent to the issuance of the No Further Action\Covenant Not to Sue shall be reported. For example, it is acceptable for a commercial property to be redeveloped for residential use after the No Further Action\Covenant Not to Sue. However, it must be demonstrated that the protectiveness of any existing engineering controls (i.e., soil cap, etc.) are not breached so that protection of public health and safety and of the environment are not compromised.

  • That any excavation or disturbance that has taken place within the restricted area(s) enumerated in the deed notice, since the last biennial certification, do not, or did not present an unacceptable risk to the public health and safety or the environment. The Department shall be advised in the biennial certification if any excavation\disturbance activities have taken place within the restricted areas. The nature of any disturbance, dates and duration of the disturbance, name of individual and their affiliation conducting the disturbance, notifications made to that party, amounts of soil generated for disposal, final disposition and any precautions taken to prevent exposure shall be reported.

  • That any engineering controls (i.e., caps, fencing, slurry walls, etc.) are being inspected and maintained and their integrity remains so that the remedial action continues to be protective of the public health and safety and of the environment. The biennial certification shall include a record of the self-inspection dates, name of the inspector, results of the inspection and condition(s) of the engineering control. Sampling, for example, may be necessary if it is not possible to visually evaluate the integrity/performance of the engineering control such as in the case of a slurry wall.

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Last revision: 4 August 2000