Expired! Are Environmental Closures Valid Forever?

19 Nov Expired! Are Environmental Closures Valid Forever?

ESA often has conversations with clients who claim, “My site is clean,” to which ESA replies, “How do you know?” And the client says something like, “Because the site underwent ISRA back in 2002 and there is an  affidavit of Negative Declaration.” Or, they might say, “We pulled two tanks 10 years ago and NJDEP issued an NFA letter.” Sometimes the client’s comment reflects a more current activity: “An LSRP just issued an RAO three years ago.”

In each of these examples, clients view their prior closure approvals as definite and sacrosanct. Unfortunately, that may not be the case.

The Problem

There are three forms of environmental closure that you may encounter. When a case was closed under New Jersey’s former environmental case management system, New Jersey Department of Environmental Protection (NJDEP) case managers issued No Further Action (NFA) letters at the project’s conclusion. If the case was part of the Environmental Cleanup Responsibility Act (ECRA) or the Industrial Site Recovery Act (ISRA – ECRA’s successor), responsible parties would submit an affidavit of Negative Declaration. Upon passage of the Site Remediation Reform Act (SRRA) on May 7, 2009, environmental closure was granted by Licensed Site Remediation Professionals (LSRPs) in the form of Response Action Outcomes (RAOs).

The problem is easy to summarize: All closure approvals from the NJDEP or any LSRP are only good on the date they were issued. Therefore, ESA always asks the question, “What happened at that location after closure was approved?” In addition, ESA also needs to examine the remedial activities and laboratory data that supported the former closure approval. We need to be certain that the remedial actions and analytical tests match those that are required today. Then we must compare those analytical results against the current cleanup standards because some of the analytical testing requirements – as well as some of the cleanup standards – may have changed.

ESA’s primary responsibility is to protect our clients. And there are a series of reasons why old closure approvals may be suspect. In the case of the examples above, each client would need ESA to determine if the prior closure approval is still valid and, if not, ESA would advise the client what degree of effort is needed to gain a new and valid closure.

The devil is in the details.

So, here’s what you need to know:

1. For cases that closed prior to May 7, 2009 (the date when the SRRA became law), the laboratory data that certified closure must be re-examined to determine if it falls within the NJDEP’s current cleanup standards. That is, for those examining old, long-closed cases, the SRRA grants those individuals one order of magnitude (10x) leeway above the current cleanup standard. NJDEP did this to reduce the number of cases that might have to be re-opened.
2. For cases that closed after May 7, 2009, the laboratory data that certified closure must still be re-examined to determine if it falls within the NJDEP’s current cleanup standards because cleanup standards have been modified several times by the NJDEP. Thus, even LSRPs may have issued RAOs using standards that no longer conform to the SRRA’s most current cleanup standards.
3. When reviewing ECRA and ISRA cases, in addition to reviewing the analytical data, ESA must also determine if the closure was site-wide or Area of Concern (AOC)-specific. Let’s assume that an AOC-specific closure occurred in the past and that closure stands up under today’s new cleanup standards. But now, the entire site is being sold. The current ISRA investigation must account for the entire property, not just the former AOC.
4. Finally, to be fully compliant, ESA almost always recommends that a Preliminary Assessment (PA) be performed. A PA is very similar to an ASTM Phase I, but it differs in that it includes an all-important data evaluation that examines these potential data and cleanup standard differences. The other important question addressed by PAs is, “What happened at the site before and after closure?” That is, have any activities occurred that could have impacted the environment?

Conclusion

In summary, the only closure you can count on is the closure that you perform in real time. While this may seem grossly unfair, it is highly protective of you. This is especially true if you are buying a property. ESA Environmental Consultants will ensure that you do not unwittingly become responsible for environmental impacts you did not cause.