BRDN-001:
Biennial Requirements for Deed Notices and Engineering Controls
Revision Date: 6-12-00 BRDN001
By: Gerald M. Hahn and Kevin F. Kratina
Bureau of Underground Storage Tanks
As a result of the January 6, 1998 "Brownfield
and Contaminated Site Remediation Act" N.J.S.A. 58:10B-1 et
seq., specifically N.J.S.A. 58:10B-13.1a(2)(a), "a covenant
not to sue shall contain the following, as applicable: a provision
requiring periodic monitoring for compliance, and submit to the
Department, on a biennial basis (every two years),
a certification that the engineering and institutional controls
are being properly maintained and continue to be protective of public
health and safety and of the environment. The biennial certification
shall state the underlying facts and shall include the results of
any tests or procedures performed that support the certification…".
Due to this statutory requirement, the Department
began issuing No Further Action\Convenant Not to Sue letters with
an institutional control (i.e. a Classification Exception Area and/or
Deed Notice) that contain a condition requiring biennial certifications
attesting to the periodic monitoring and protectiveness of the controls.
A covenant not to sue is included in each no further action letter
issued for an area of concern or a full site. As a condition
of the No Further Action\Convenant Not to Sue letters, and in order
to maintain the benefit of the Covenant Not to Sue, the engineering
and institutional controls must be evaluated every two years to insure these measures remain protective. For the purposes of
this article, biennial requirements for Deed Notices will only be
discussed at this time. Additional information regarding Classification
Exception Area biennial certification requirements will be presented
in future articles.
The Brownfield Amendments to the Technical Requirements
for Site Remediation codified the biennial certification requirements
at N.J.A.C. 7:26E-6.4 (g). This guidance is intended to assist in
meeting those requirements.
Please note that the procedures below are easy
to accomplish if land and resource uses have not changed in and
around the institutional controls. If land and resource uses change
for a parcel of property, inclusive of a Deed Notice, the person(s)
responsible must demonstrate within the biennial certification that
these changes remain protective of public health and safety and
of the environment.
One of the more frequently asked questions is who
has the obligation to monitor for compliance and submit the biennial
certification to the Department when an institutional control is
part of a remedial action for a contaminated site? The person(s)
responsible for complying with these provisions include: (1) the
person who undertook the remediation, whether that person is a responsible
party or an innocent purchaser, pursuant to the Spill Compensation
and Control Act, N.J.S.A. 58:10-23.11g, or any other person (e.g.,
non-owner developer); (2) the owner at the time the Department issues
the no further action letter, and (3) any subse-quent owner, lessee
or operator of the site at the time that the biennial certification
is required (hereinafter collectively referred to as "persons
responsible").
Another frequently asked question is what is required
in a biennial certification to ensure that a remedial action with
a deed notice remains protective of the public health and safety
and of the environment?
Deed
Notice
A deed notice is required when contaminated soils
are present at a site above the Residential Direct Contact Soil
Cleanup Criteria before the issuance of the No Further Action\Covenant
Not to Sue letter. If a property is sold, the deed notice will provide
notice to subsequent owners and other prospective users (i.e. lessee’s,
etc.). The deed notice will provide information regarding the site,
presence of contaminants and any compliance monitoring requirements.
The requirements may include; but not limited to; cap maintenance,
inspection requirements and notification requirements, etc. In order
to comply with the biennial certification, the person responsible
for monitoring the institutional control must certify:
- That the deed notice has been properly filed and remains on
file with the office of the county recording officer and no subsequent
notices have been filed to nullify the original notice;
- That the land use is consistent with the use restrictions identified in the deed notice; The person responsible submitting
the information must ensure that land use did not change in a
manner that may create an unacceptable exposure.
Current land use and any land use changes subsequent to the issuance
of the No Further Action\Covenant Not to Sue shall be reported.
For example, it is acceptable for a commercial property to be
redeveloped for residential use after the No Further Action\Covenant
Not to Sue. However, it must be demonstrated that the protectiveness
of any existing engineering controls (i.e., soil cap, etc.) are
not breached so that protection of public health and safety and
of the environment are not compromised.
- That any excavation or disturbance that has taken place within
the restricted area(s) enumerated in the deed notice, since the
last biennial certification, do not, or did not present an unacceptable
risk to the public health and safety or the environment. The Department
shall be advised in the biennial certification if any excavation\disturbance
activities have taken place within the restricted areas. The nature
of any disturbance, dates and duration of the disturbance, name
of individual and their affiliation conducting the disturbance,
notifications made to that party, amounts of soil generated for
disposal, final disposition and any precautions taken to prevent
exposure shall be reported.
- That any engineering controls (i.e., caps, fencing, slurry
walls, etc.) are being inspected and maintained and their integrity
remains so that the remedial action continues to be protective
of the public health and safety and of the environment. The biennial
certification shall include a record of the self-inspection dates,
name of the inspector, results of the inspection and condition(s)
of the engineering control. Sampling, for example, may be necessary
if it is not possible to visually evaluate the integrity/ performance
of the engineering control such as in the case of a slurry wall.
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