Enforcement Actions Could Return “Direct Oversight” to the NJDEP Under SRRA

This is the second of two blogs about the critical role of enforcement by the NJDEP in the Site Remediation Reform Act of 2009

As discussed in the previous blog: section C.58:10C-27a of the SRRA clearly mandates “Direct Oversight” by the NJDEP if they have issued two enforcement actions to a “Responsible Party” during any five-year period after 2009. But section C.58:10C-27b lists four circumstances when the NJDEP “may” opt for Direct Oversight. 

Two of these are convoluted: “the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16).” Secondly, how is an “environmentally sensitive natural resource” defined? At least two of these need to have been impacted before Direct Oversight would be considered.

Let’s illustrate this by testing a common hypothetical: a plume from an old gas station seeps into a nearby storm drain, producing a sheen and a foul odor in a stream, that after several miles flows through wetlands into an estuary.

First, is more than one “environmentally sensitive natural resource” affected, defined as “environmentally sensitive” in N.J.A.C. 7:1E-1.8 (Discharges of Petroleum and Other Hazardous Substances). There are fifteen of them; the NJDEP has written a 61-page guidance document on environmentally sensitive areas. Only two of the fifteen might apply to this scenario: a discharge to “surface waters” and “wetlands and … wetland buffers and transition areas.” Proving this sheen is contaminating five or more acres of water or sediment would also bump up the priority, according to the NJDEP guidance on Direct Oversight.

But isn’t it reasonable to argue that a sheen will dissipate long before this plume discharges into the wetlands that are miles downstream? Since only one resource - surface water - is impacted, it fails this test.

Secondly, could the property polluting this stream be ranked by the NJDEP as a high priority site? The NJDEP has yet to follow through on the SRRA mandate to rank contaminated sites and revise their Known Contaminated Site List that was developed in 1994. The new Remedial Priority System database will rank most contaminated sites using five categories, the fifth having the highest risk to public health, safety or the environment. The criteria is: how long the remediation is taking; the economic impacts to the town or surrounding properties; and other relevant factors deemed appropriate by the NJDEP, according to N.J.S.A. 58:10-23.16.

Would the hypothetical sheen that is only polluting a stream receive a high RPS score just because the cleanup is taking so long? My guess until the RPS is completed is that it won't.

So we are back to 27a and those two enforcement actions that need to be issued by the NJDEP.

With Legislative Relief Comes Responsibility

SRRA-specific enforcement actions could identify and correct potential abuses of the 2-year reprieve. But the number of enforcement actions is generally declining, according to an article in the Asbury Park Press this past July. Citing a NJDEP report on compliance and enforcement highlights, “... the number of DEP and county enforcement actions dropped from 29,579 in 2008 to 18,360 in fiscal 2011 and 13,555 in fiscal 2012.” There is no way to know how many of these enforcement actions were specifically related to “any rule or regulation adopted pursuant thereto” the SRRA. The SRRA data was not separated from the data for the entire Site Remediation Program, which was not separated from the enforcement categories used for the report's statistics and graphs: Air, Hazardous Waste, Land Use, Pesticides, Solid Waste, Underground Storage Tanks, Water Quality, and Water Supply.   

According to the report, high priority cases are being targeted for enforcement by the SRP – when “nearby sensitive receptors such as residences, childcare centers, schools or drinking water supplies” have already been impacted - but not lower priority cases, when just the groundwater or surface water is being polluted.

NJDEP spokesperson Larry Ragonese explained in the APP article that “We still fine people … We still take people to court. We still issue notices of violation, but we do it a lot less because we’re reaching out and trying to get off the old bureaucratic way of doing things.”

That sounds reasonable, generally speaking. S3075 should trust but verify. The bill should add a requirement that the NJDEP report about their enforcement actions as defined by the SRRA, taken before and after its implementation in 2009.

Are repeat offenders being penalized, or are they getting recurring NODs, NOVs, or other directives that are not counted as enforcement actions by the SRRA? How long are enforcement actions and cleanups delayed when cases are referred from Emergency Response, to SRP, to Enforcement, etc.? When a Bureau inherits a case, do they reset the clock by re-issuing another warning instead of a penalty? 

If a RP is issued a directive to stabilize some of the discharges from a site that can not wait until final cleanup measures can be implemented (an Interim Remedial Measure), what's the average time that it's taking before the RP is issued a penalty for not implementing the temporarily measures? An RP who decides to dismiss his LSRP is allowed 45 additional days to retain a new LSRP, even if he has been issued an IRM. How long does that go on; how many times can you do that before you are issued a penalty? How long can a RP stall enforcement actions pursuant to the SRRA by transferring the ownership of the property? What's that limit? 

What is being done with Unknown Source cases that haven't evolved into an immediate threat to human health, but are still “identified as having ground water contamination, but the source of the contamination is unknown”? How many are there, how effectively are investigations of individual sites upgradient of the contamination being coordinated to identify the source and get the RP into the system?

How many SRRA-defined enforcement actions taken before and after 2009 were for lower ranked cases, like the hypothetical discharge to the stream?

Enforcement is quality control for deadline extensions. The next statutory deadline in the SRRA is for cases occurring after May 7, 1999. The deadline will be in 2015 or 2017, according to Table 2 in “Summary of Regulatory and Mandatory Timeframes for Remediation” on the SRRA web page. Adding a new requirement in S3075 for a report about how enforcement has been trending since 2009 – enforcement actions specific to “any rule or regulation adopted pursuant thereto” the SRRA, not for broadly defined categories - would be reasonable.

ADDITIONAL RESOURCES

Bates, Todd. Jul 11 2013. “Number of environmental enforcement actions plummet, report says”. Asbury Park Press. http://www.app.com/article/20130712/njnews10/307120033/number-environmental-enforcement-actions-plummet-report-says

Kratina, Kevin. September 16, 2013. Site Remediation Program Online Services, the “May 2014” Deadline and Enforcement. New Jersey Department of Environmental Protection. http://www.cianj.org/2013/09/2013-fall-environmental-conference-presentations/ [4th on list]

Kropp, Irene. Accessed 12/7/13. Site Remediation Reform. New Jersey Department of Environmental Protection. http://www.elminc.com/images/LSRP/Irene%20Kropp%20-%20Site%20Remediation%20Reform%205-11-2009.pdf

NJDEP. 11/04/2009. Direct Oversight Guidance: When the Department of Environmental Protection May Undertake Direct Oversight of a Remediation of a Contaminated Site Version 1.0, issued 11/04/2009. http://www.nj.gov/dep/srp/guidance/srra/direct_oversight.pdf

NJDEP. December 29, 2011. Alternative and Clean Fill Guidance for SRP Sites Version 2.0. Site Remediation Program. http://www.nj.gov/dep/srp/guidance/srra/fill_protocol.pdf

NJDEP. May 2013. NJDEP Compliance & Enforcement Highlights for Fiscal Year 2011-2012. Office of Strategy Management. http://www.nj.gov/dep/enforcement/docs/FY11-12HighlightsReport.pdf

NJDEP. Accessed 12/7/13. Environmentally Sensitive Areas Guidance Document Revised 6/1/12. Bureau of Release Prevention. http://www.nj.gov/dep/rpp/brp/dp/downloads/DPCC_Environmentally_Sensitive_Areas_Guidance.pdf

NJDEP. Accessed 12/7/13. Summary of Regulatory and Mandatory Timeframes for Remediation. See “Table 2. Remedial Investigation Timeframes”. http://www.nj.gov/dep/srp/srra/training/matrix/new_responsibilities/timeframe_req.pdf

NJDEP. Accessed 12/7/13. Site Remediation Reform Act (SRRA). http://www.nj.gov/dep/srp/srra/

Wolfe, Bill. November 7th, 2010. Friday Afternoon Massacre at DEP http://www.wolfenotes.com/2010/11/friday-afternoon-massacre-at-dep/

Wolfe, Bill. December 7th, 2013. Lame Duck Alert: Polluters Seek Rollback of Key Deadline In Privatized Toxic Site Cleanup Law. http://www.wolfenotes.com/2013/12/lame-duck-alert-polluters-seek-rollback-of-key-deadline-in-privatized-toxic-site-cleanup-law/

BILL TRACKING SITES

Open States. Accessed 11/28/13.  http://openstates.org/nj/bills/?search_text=remedial+investigation&session=&sponsor__leg_id=NJL000048&type

Commerce and Industry Association. Accessed 11/28/13. http://www.cianj.org/issue-advocacy/pending-legislation/