New Jersey’s New Public Outreach Rule: Public Participation During the Site Remediation Process

In-Sites Special Alert
(Edward F. McTiernan)
September 5, 2008
On September 3, 2008, the New Jersey Department of Environmental Protection (“DEP”) announced a new rule requiring parties that are conducting remediation to engage in a process of written notification to property owners and tenants located within 200 feet of a cleanup site boundary. According to Commissioner Lisa Jackson, “This public outreach significantly improves how neighbors are kept informed about cleanups and will become an invaluable tool for everyone involved in those cleanups by eliminating misperceptions and speculation that can create conflict and unnecessary delays.”

The new rule, adopted as an amendment to the Technical Requirements for Site Remediation (“Tech Regs”), N.J.A.C. 7:26E-1.4 et seq., goes into effect as of September 2, 2008. Parties responsible for cleanups must take the outreach steps no later than two weeks prior to initiating certain phases in investigation or remediation of a site. Parties in on-going cleanups have one year to provide the required notification. This rule envisions extensive and repeated written notices to neighbors, bi-lingual signs and fact sheets as well as reporting to local officials. All of these activities must be supervised and coordinated with DEP. In certain situations, the rule goes well beyond mere notification. When it appears to DEP that there is public interest in the remediation, DEP requires a protocol which sets the stage for two way communications.

However, because there are no changes to the criteria for remedial investigations or remedy selection, it is unclear how notice or two way dialog will benefit the remediation process. Indeed, until this amendment, the Tech Regs provided no role for the community during site investigations and only a passing reference to community acceptance during remedy selection. Previously, the primary test for evaluating impacts on the local community under the Tech Regs governing remedy selection was whether “the proposed remedial action is consistent with the local land use Master Plan.” See N.J.A.C. 7:26E-5.1(c)4. A new test for “substantial public interest” is met if DEP receives a petition containing signatures of 25 or more people who live or work within 200 feet of the site, or within 200 feet of any contamination that has migrated from the site boundary, or if DEP receives a written request from a municipal official. Therefore, it is difficult to understand how this new program will achieve the Legislature’s goal to “reform the site remediation process in order to promote faster clean-ups of contaminated property while at the same time furthering the State’s economic well-being and development by improving the State’s business climate.” Assembly Policy and Rules Committee, Statement to Senate Committee Substitute for S. 1070 (June 3, 1993).

Past Practices Regarding Public Notice and Participation in Site Remediation
In the early days of New Jersey’s Site Remediation program public notice and public participation were generally an after thought. However, the emergence of the Environmental Justice movement (which culminated with President Clinton’s Executive Order 12898 in 1994) and a growing emphasis on redevelopment of distressed urban properties caused DEP to chart a course which assumes that public notice and community input improves the remediation process. The often stated justification for public involvement is that the public requires complete information in order to properly understand risk and order their activities. Thus, even without any particular Legislative direction or authority in the past several years, DEP began to include public notice requirements in certain elements of the Site Remediation Program. See N.J.A.C. 7:26E-6.3(c).

One striking example of DEP’s growing emphasis on public notice and participation can be seen in the October 2005 Vapor Intrusion Guidance. Vapor Intrusion Guidance, DEP, October 2005 at page 148. This widely disseminated, albeit informal, guidance document envisions an extensive program to encourage “two way communication with residents, business owners and local officials…” Furthermore, the Vapor Intrusion Guidance anticipates active involvement by DEP’s Office of Community Relations (“OCR”). The outline in the Vapor Intrusion Guidance anticipates that OCR will have direct contact with the public, issue letters to the public reporting data and facilitate public meetings and other information sessions.

The Brownfield and Contaminated Site Remediation Act
In 1993, “in response to criticism that the complicated [ECRA] program had stagnated the transfer of commercial property and had created other problems,” the Legislature amended New Jersey’s primary program governing site remediation. Besides renaming ECRA as the Industrial Site Responsibility Act, the 1993 statute instituted major reforms of the site remediation process, based on legislative findings that the site remediation program was not working and needed to be fixed. The Legislature acknowledged that prior legislation had been enacted at a time when “the cost and complexity of remediations were not well understood,” that the knowledge base regarding how to conduct remediations had advanced significantly in the intervening decade, and that it was in the interest of both the environment and the economy to “promote certainty in the regulatory process by incorporating that knowledge to create a more efficient regulatory structure.” N.J.S.A. 13:1K-7. The Legislature therefore declared that it was the policy of the State to “protect the public health, safety, and the environment, to promote efficient and timely cleanups, and to eliminate any unnecessary financial burden of remediating contaminated sites.”

The Legislature went well beyond ECRA reform, however, in pursuing its goal of promoting efficient, timely, and cost-effective cleanups by enacting the Hazardous Discharge Site Remediation Act. N.J.S.A. 58:10B-1 et seq. See L.1993, c. 139, §§ 23-43, 45. This new chapter was later amended and renamed the “Brownfield and Contaminated Site Remediation Act.”

As part of this continuing reform effort, in 2006 the Legislature amended the Brownfield and Contaminated Site Remediation Act and instructed DEP to promulgate rules requiring “written notification” to property owners and tenants who “reside within 200 feet of the contaminated site.” DEP was given six months to promulgate these rules. N.J.S.A. 58:10B-24.3.

The Rule on Public Outreach
DEP’s new rule, proposed in August 2007, basically requires that responsible parties:

(i) identify “sensitive” population using a mandatory checklist (available on DEP’s website: http://www.nj.gov/dep/srp/guidance/public_notification/checklist.pdf); and

(ii) provide public notice by either (a) issuing periodic notification letters, or (b) posting a conspicuous sign.

Notification letters must be sent to all property owners and tenants of property within 200 feet of the boundary of the contaminated site. The rule establishes seven mandatory items to be included in each notification letter. If the responsible party elects to use a sign to provide notice, the rule specifies the minimum size and required language. The rule does not distinguish between residences and business. More information on the rule can be found on DEP’s website: http://www.nj.gov/dep/srp/guidance/public_notification/.

Notices and signs must be in English. However, "where ... the person responsible for conducting the remediation determines that a language other than English is predominantly spoken by property owners and tenants in the area within 200 feet of the site boundary, notices shall also be provided in the non-English language ..."

Once contamination moves off site, the notice issues get more complex and the program starts to move toward public participation. Parties responsible for remediation of off-site contamination must satisfy additional requirements, including at a minimum:

(i) preparation and distribution of a project fact sheet;

(ii)establishing a listing of “on-line resources” for information about the contaminants; and

(iii) publication of the fact sheet as “a display advertisement” (not legal notice) in a local newspaper.

Moreover, for reasons that are not apparent, if the off-site contamination is limited to a single adjoining property and the affected contaminated medium is limited to soil, the owner and tenant notice must be given by certified mail or by using the certificate of mailing service. The required notice must describe the nature and extent of the contamination.

The deadlines in the rule are very aggressive. Notice of field investigative activities must be given two weeks in advance of each phase of the investigation. Notice letters must “be sent every two years after the initiation of the …remediation… until a No Further Action and Court No To Sue letter is issued …” If contamination is identified and has migrated off-site the mandatory fact sheet must be mailed out within two weeks.

The rule also contains the now familiar list of civil administrative penalties and classification of various violations pursuant to the Grace Act. N.J.S.A. 13:1D-125 et. seq.

Subsection O of the rule contains what are arguably the most troubling, and are certainly the most far-reaching, requirements. N.J.A.C. 7:26E-1.4(o). Under subsection O, a petition signed by 25 or more neighbors or people who work within 200 feet of the site (or the off-site contamination), or any municipal official, triggers additional requirements which may include:

(i) public meeting(s);

(ii) additional publication; and/or

(iii) establishment of a local site information repository.

The rule provides very little guidance concerning how DEP will decide which sites warrant enhanced two way communication in addition to basic notice. Furthermore, once DEP elects to require an enhanced program there are basically no limits on the type, number and frequency of the communications.

The language of DEP’s rule, as well as recent guidance documents, strongly suggest that the agency favors a public hearing process similar to National Contingency Plan procedures used by EPA for public participation at National Priority List sites. See generally 40 C.F.R. §300.430(f)(3)(i)(C). The Federal regulations require, among other things, that EPA (or the lead agency), after properly providing public notice of a proposed remedial plan and making the plan publicly available for review, “[p]rovide a reasonable opportunity, not less than 30 calendar days, for submission of written and oral comments on the proposed plan and the supporting analysis and information located in the information repository, including the RI/FS.” 40 C.F.R. §300.700(c)(6) (“Private parties undertaking response actions should provide an opportunity for public comment concerning the selection of the response action ...”).

Of course, EPA’s rules apply to abandoned waste sites that have been determined to represent the greatest threats, on a national level, to human health and the environment. With limited exceptions for residential oil tanks, New Jersey’s rule applies to all clean-ups. Thus, the rule will be applied to countless gasoline stations, properties containing nothing more than historic fill and ISRA sites. It is noteworthy that the May 2006 version of DEP’s Known Contaminated Sites list includes 14,079 properties. When the number of properties within 200 feet of these locations, plus off-site locations impacted by contamination, are included, a staggering number of properties are implicated by this rule.

In contrast to EPA’s rules, New Jersey’s Tech Regs do not provide much opportunity for community acceptance to be considered as a factor during remedy selection. In New Jersey, remedy selection is based on effectiveness - which is in turn determined using concentration based clean-up criteria. The responsible party is supposed to consider “the potential impact of the proposed remedial action on the local community.” N.J.A.C. 7:26E-5.1. However, community acceptance is presently judged only on the reaction of local officials (or lack thereof) and the local land use Master Plan.

Indeed, the Tech Regs afford responsible parties and their environmental professionals few opportunities to use professional judgment, site specific considerations or risk based factors in the remedial decision-making process. Clean-ups in New Jersey remain subject to the long-standing ‘command and control’ framework of the Tech Regs. Neither the public nor the responsible parties are afforded many occasions to influence the outcome of remedial investigations or remedy selection. As a result, DEP’s decision to move beyond the minimum notice suggested by N.J.S.A. 58:10 - 24.3 has the potential to result in additional delays and litigation without any meaningful potential for improving clean-ups.

Conclusion
Responsible parties performing clean-ups in New Jersey must pay careful attention to DEP's evolving requirements concerning public notices. Past practices developed under various informal guidance documents are now formalized into a binding rule. This public notification program will capture most clean-ups without regard to risks or location. Indeed, once the rule takes effect and parties begin compliance it is not difficult to imagine walking down a street in an urban area in New Jersey and seeing entire blocks where there are signs on every lot announcing remediation; bi-lingual letters in every mailbox and pages of display ads announcing remedial activities in all the local papers.

As adopted, the rule will generally impose additional costs on responsible parties and further demands on finite public resources. The risk of additional delay is great. Additional friction between owners performing clean-ups and neighbors seems likely. More litigation over site remediation issues - ranging from the use of institutional controls to citizens suits - seems inevitable. Unfortunately, what is missing from this program is any opportunity for meaningful site specific factors -- including but not limited to community acceptance -- to be weighed while making the decisions about clean-ups.

Click here for a PowerPoint presentation of the new rule.