NJDEP Posts Compliance Alert!
On April 12, 2017, the NJDEP posted a Compliance Notice for businesses and individuals who have received a Departmental issued limited restricted use or restricted use No Further Action Letter (NFA), and have not complied with the "continued protectiveness" conditions of the NFA. Such conditions may include a biennial certification of institutional controls (e.g. deed notice and classification exception area) and engineering controls (e.g. cap, slurry wall) required to protect the public health and safety and the environment. The Site Remediation Reform Act, which became effective May 7, 2009, authorizes the NJDEP to regulate compliance with this continued protectiveness obligation through the issuance of Remedial Action Permits. A person's failure to comply with these requirements allows the NJDEP to rescind the NFA letter and the covenant not to sue indicated in that letter and to take other enforcement actions.
According to the NJDEP, the Department will be increasing its enforcement in response to noncompliance with biennial certification of the institutional and engineering controls and remedial action permit obligations. The failure to retain a Licensed Site Remediation Professional, failure to apply for a remedial action permit, and failure to pay annual remedial action permit fees collectively carry a minimum per day penalty of $30,000 plus 100 percent of the outstanding annual remedial action permit fees.
Those who may be affected by this Compliance Alert:
- Acquired a property with known environmental concerns (even if the responsible party is the previous owner)
- Environmental Attorneys
- Real Estate Developers
If NJDEP rescinds an NFA Letter, the current property owner may be required to bring the site into compliance and may be required to meet current regulatory standards and guidelines.