From CEA to RAP: What to do when NJDEP Changes the Game - AskESA
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From CEA to RAP: What to do when NJDEP Changes the Game


From CEA to RAP: What to do when NJDEP Changes the Game

Imagine, if you will, a world where environmental regulations remain constant and cleanup standards never change; where state representatives have a unified voice regarding the direction an environmental cleanup should take; and where once a project is closed, it remains closed. If this sounds like science fiction, that’s because it is — especially in New Jersey.

How Did You Get Here?

Consider the following scenario: it is 1990 and you, an inspired entrepreneur, purchase a property to use for your new manufacturing operations. A few years later, an accidental discharge occurs at your property and you, as the property owner/operator, are responsible for the cleanup. As a steward of the environment, you accept responsibility for the spill, hire an environmental consultant and environmental attorney, and remediate your property. Due to the nature of the spill, however, you are left with residual, low-level groundwater contamination that requires you to file a Classification Exception Area (CEA) with the New Jersey Department of Environmental Protection (NJDEP), which you do. All that is required is that you sample several groundwater monitoring wells, perform periodic inspections, and submit a Biennial Certification (BC) every two years.

Fast-forward to May 7, 2012, the date on which the phase-in of the NJDEP Site Remediation Reform Act (SRRA) ended, ushering in a completely new environmental management philosophy. Notwithstanding the SRRA, you have remained in compliance with the terms of the CEA issued for your property so these regulatory changes certainly won’t affect you… or will they?

So, What’s the Problem?

A common question since the implementation of the SRRA has been, “How will the NJDEP address existing CEAs?” The NJDEP has largely managed existing CEAs using the status quo; complete your site inspections and sample (if necessary), fill out the Biennial Certification, and submit it to the NJDEP.  However, toward the end of 2015, the NJDEP began to formally require Persons Responsible for Conducting Remediation (PRCR) to convert their existing CEAs to a new mechanism NJDEP developed to address sites with persistent groundwater contamination — the Remedial Action Permit (RAP). Thus, although your facility has remained compliant with its regulatory obligations, you must now hire an environmental consultant to reopen your case, retain an LSRP to evaluate current groundwater contaminant concentrations, terminate your existing CEA, and undertake a new RAP for Groundwater — all at significant cost to you, the compliant property owner. To make matters worse, because the RAP conversion process was completely new to the environmental industry, a significant number of RAP applications were returned to the PRCR/LSRPs to correct errors.  Previously, an NJDEP representative would help the PRCR/LSRP revise the application. Unfortunately, that level of cooperation has ended.

On July 13, 2017, the NJDEP issued to following statement:

“The New Jersey Department of Environmental Protection is notifying Persons Responsible for Conducting Remediation and their Licensed Site Remediation Professionals that when applying for Remedial Action Permits that the Department intends to reject as “incomplete” administratively and/or technically deficient RAP applications when: (1) a response to a Notice of Administrative Deficiency or Notice of Technical Deficiency is not received within 30 days, (2) an application is not withdrawn in order to address the deficiencies, or (3) the response to the Notice does not sufficiently satisfy all of the deficiencies identified in the notice. Once a RAP application has been rejected as incomplete, the PRCR will be required to re-apply for a RAP in accordance with N.J.A.C. 7:26C-7.5, including submission of appropriate RAP application fees. Rejection of an incomplete RAP application does not constitute a final agency action.” This represents a significant change to NJDEP policy in that incomplete applications will require full re-submittal to the NJDEP and will no longer be treated as being ‘in process.'”

Hence this hypothetical but not unrealistic scenario of a responsible property owner who falls into the middle ground between compliance and confusion, between science and supposition… the dimension we call The NJDEP Zone.

What should you do and how can ESA help?

If you have an existing CEA that has not yet been converted to a RAP for groundwater, the NJDEP will require that it be converted when your next biennial certification becomes due. ESA has successfully managed this process proactively for dozens of clients, and we can help you get it right the first time, too, saving you time and money and avoiding unnecessary fines. Give us a call. There’s never a fee to ask a question.

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