15 Jan Understanding NJDEP’s Direct Oversight Action
Reading Time: 3 minutesWhen a property is out of environmental compliance and significantly behind mandatory remedial timeframes, the New Jersey Department of Environmental Protection (NJDEP) will take action to effect compliance. In such cases, NJDEP may elect to initiate Direct Oversight, Adjusted Direct Oversight, or Enforcement. Enforcement is NJDEP’s final directive for a Responsible Party (RP) to achieve compliance, and no one wants to be under NJDEP enforcement. Well before an enforcement directive is issued, however, NJDEP will put the RP (typically, the property owner) in a direct oversight program. When placed in oversight, knowing which path to compliance is best for you could make a significant difference in the outcome of your project. Here’s what you need to know in order to exploit every legal administrative advantage possible when addressing an NJDEP oversight action.
Direct Oversight vs. Adjusted Direct Oversight
Complications and delays in remediating contaminated sites may push projects behind schedule, causing the RP to miss mandatory remedial timeframes. When this happens, the RP may find themselves in NJDEP Direct Oversight. Of two potential options — Direct Oversight and Adjusted Direct Oversight — the latter is more favorable to the RP. In Adjusted Direct Oversight, the RP must enter an Administrative Consent Order (ACO) with NJDEP, pay a fine, develop a public participation plan, and establish a remedial funding source based on a remedial cost estimate. While Adjusted Direct Oversight may seem onerous, it is far less burdensome than Direct Oversight and offers the following key advantages:
- Remediation can proceed prior to NJDEP approval;
- The RP can pay annual remediation fees in lieu of Direct Oversight costs; and
- Remedial phase documents and submittals continue to go through the Inspection/Review process vs. the Direct Oversight review and approval process, saving both time and money.
Understanding the ACO Process
Whether in Direct Oversight, Adjusted Direct Oversight, or Enforcement, an ACO is the legal mechanism the Department uses to compel action. NJDEP ACOs are legal agreements between the NJDEP and RPs that address environmental violations and restore compliance with state and federal regulations. ACOs are essential tools used to enforce environmental standards and ensure the protection of public health and the environment.
The ACO process typically begins when an environmental violation is identified by the NJDEP. The agency then investigates to gather evidence and determine the nature and severity of the violation. If the NJDEP finds that the RP has violated environmental laws, it may issue a Notice of Violation (NOV) or a complaint.
If the RP wishes to resolve the issue without going to court, they may enter negotiations with the NJDEP to reach a settlement. If the parties reach an agreement, the NJDEP will draft an ACO that outlines the terms of the settlement, including corrective actions, penalties, and a compliance schedule. The ACO is a binding legal agreement with which the RP must comply. The NJDEP monitors the progress of ACOs through regular inspections, reports from the RP, and follow-up investigations. If the RP fails to comply with the terms of the ACO, the NJDEP can take enforcement actions, such as imposing additional penalties, seeking a court order to enforce compliance, or initiating a new enforcement action against the RP.
The Critical Role of the LSRP in an NJDEP Oversight Action
Licensed Site Remediation Professionals (LSRPs), along with environmental attorneys, play a crucial role in developing and implementing the ACO. The LSRP prepares remediation plans, oversees the remediation process, and ensures that the RP complies with the terms and conditions outlined in the ACO. LSRPs work closely with the NJDEP to ensure that the remediation process is carried out effectively and efficiently, maintaining ongoing communication with the NJDEP throughout the process.
Compliance with an ACO is essential for the RP to avoid further enforcement actions and potential legal consequences. The ACO outlines specific corrective actions, deadlines, and monitoring requirements that the RP must meet. To ensure compliance, the RP must maintain accurate records, report progress to the NJDEP, and conduct regular inspections to verify that the corrective actions are effective. The NJDEP may also require the RP to submit a closure report once the corrective actions are complete. This report verifies that the environmental violation has been resolved and that the site complies with all applicable regulations. A competent LSRP and environmental attorney will guide you safely through this process.
Ask ESA
ESA’s LSRPs have years of experience helping RPs navigate NJDEP Direct Oversight and ACO compliance. They are experts at designing and implementing efficient and effective environmental strategies, so property owners can feel confident in knowing that ESA is leading their remedial efforts. If you’re facing NJDEP oversight, ask ESA. We’re here to help.
References
New Jersey Department of Environmental Protection (NJDEP)
New Jersey Administrative Code (N.J.A.C.) Title 7 – This reference contains the regulations governing the issuance, enforcement, and compliance of ACOs in New Jersey. The regulations outline the requirements for issuing ACOs, monitoring compliance, and enforcement actions.
United States Environmental Protection Agency (EPA)