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November 2007

New Jersey takes action against negligent contamination monitoring

The Department of Environmental Protection (DEP) is launching enforcement actions against approximately 950 parties who have failed to monitor and report on the condition of caps, areas of groundwater contamination, and status of deed notices as required under department-approved remediation plans, Commissioner Lisa P. Jackson announced.

“We realize that the state’s system that allows self-reporting for monitoring of these contaminated properties is broken, and we are taking the first steps toward fixing this,” Commissioner Jackson said.

The DEP published an alert notifying the responsible parties that they face enforcement actions on its website.

The DEP will begin issuing notices of violation with penalties that could be assessed at $8,000 for every day out of compliance.

Laws governing contaminated site cleanups currently allow measures to be in place to ensure remedies, such as construction of caps, remain protective. Measures include deed restrictions to alert any future property owners that an engineering control or use restriction is being utilized at the property.

The law also allows responsible parties to delineate certain areas of groundwater contamination, and requires regular monitoring to ensure site conditions have not changed since the area was established.

As a condition of the department’s approval of these remedies, the responsible parties agreed to evaluate site conditions and submit a report every other year through a document known as a Biennial Certification.

In September 2006, DEP adopted grace period rules that classified the failure to submit Biennial Certifications as a “non-minor” violation subject to penalties. In March, the DEP sent out nearly 2,100 letters advising that an amnesty period for attaining compliance would expire September 18, 2007.

The properties subject to the letters include commercial and residential redevelopment sites, industrial sites, gas stations, and public institutions.

Of the responsible parties sent notifications, approximately 840 responded by returning the necessary biennial certifications, work plans, or requests for an extension. The department is investigating approximately 300 additional sites to determine if enforcement action is warranted.

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