Grace Period Rule Guidance
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New Jersey Department of Environmental Protection
Site Remediation and Waste Management
September 18, 2006
(rev. 23 October 2006)
NOTICE
The Department has amended subchapter 10 of the Department Oversight
of the Remediation of Contaminated Sites Rule, N.J.A.C. 7:26C (Oversight
Rule), to set forth penalties for violations of portions of the Underground
Storage Tank Rule, N.J.A.C. 7:14B (UST Rule), the Industrial Site Recovery
Act Rule, N.J.A.C. 26B (ISRA Rule), the Oversight Rule, and the Technical
Requirements for Site Remediation Rules, N.J.A.C. 7:26E (Technical Requirements).
Through the amendments the Department has identified these violations
as either minor or non-minor in accordance N.J.S.A. 13:1D-125 et seq,
commonly known as the Grace Period Law. In addition, the Department has
amended Subchapter 3 of the Oversight Rules regarding the Memoranda of
Agreement (MOA) application and termination process, establishing a period
of time, consistent with the grace period applicable for non-MOA cases,
for the correction of deficiencies prior to MOA termination. The rule
adoption was published in the New Jersey Register on September 18, 2006,
and the rule became effective on that date.
Implementation of the Grace
Period Rule
The adoption of the Grace Period rule necessitates some policy and procedural
changes for SRWM that will affect parties responsible for conducting remediation,
as summarized below.
Notices of Deficiencies
The Department currently relays the results of its review of remediation-related
submittals and activities in the form of comment or deficiency letters.
The Department intends to modify this process slightly by changing the
name and form of this communication. Instead of a comment or deficiency
letter the Department will issue a Notice of Deficiency (NOD) to the person(s)
responsible for conducting remediation that details the deficiencies that
need to be addressed. The NOD will link each deficiency to the related
regulatory requirement. The party must address each deficiency in accordance
with the timeframe established in the NOD. Failure to address deficiencies
will result in the Department’s issuance of a Notice of Violation
(NOV), or a Notice of Intent to Terminate (NOIT) for MOA cases. Non-compliance
with the NOV or NOIT, or the occurrence of a non-minor violation, will
lead to assessment of penalties prescribed by the Grace Period Rule or
the termination of the MOA.
If a party fails to submit a required document at all, the Case Manager
will issue a NOV or NOIT, for all violations, instead of a NOD since no
submittal will have been made for the Department to evaluate. If a submittal
is made in response to the NOV or NOIT, the Case Manager will review the
submittal and issue a NOD for deficiencies. If no submittal is made in
response to the NOV or NOIT, penalties or termination will follow.
Point of Contact
Previously the Department’s communication was directed to the
person designated by the person responsible for conducting remediation.
That may have been their attorney or consultant or registered agent. Moving
forward the Department will direct all correspondence to the person responsible
for conducting remediation. Designated contacts will receive a copy of
the correspondence as well. This change is needed for two reasons. First
the Department wants to clearly place responsibility for addressing deficiencies
and meeting compliance deadlines on the appropriate party. That party
may be a person who committed to conduct remediation by applying for a
MOA, a party who executed an ACO or Remediation Agreement, or a party
who is obligated to conduct remediation by the UST or ISRA statutes. Secondly,
the Department’s database facilitates issuance of enforcement actions
against parties who fail to meet their obligations. Since such actions
are taken against the person who has the obligation, all prior correspondence
will be directed to that same party to avoid a situation where a party
may receive an enforcement action and claim that prior communication of
requirements was not received.
Timeframes for Correction of Deficiencies
Currently the timeframes that Case Managers allow for the correction
and re-submittal of a deficient document, and for the completion of field
work related to remediation, varies in consideration of the scope of the
project, site-specific conditions, and the oversight document or rule
governing remediation. Generally these variations will continue to be
allowed with some standardization. When determining the timeframe for
corrective actions included in NODs, Case Managers will consider the amount
of time needed to accomplish the corrective action. This timeframe may
be adjusted in consideration of additional factors including the risk
posed by site conditions, the compliance history of the party, and site
specific conditions that may extend or shorten the time needed to accomplish
the corrective action. Finally, extended corrective action time may be
afforded for deficiencies if the Department’s response was not timely.
Extension Requests
Parties responsible for conducting remediation are encouraged to promptly
raise & resolve disputes with their Case Manager. Time allowed for
the resolution of issues will be determined by the compliance date in
the NOD. Extension requests must be in writing, must specify which corrective
action the extension request applies to, how long is needed and why, and
must be received at least 7 days prior to the compliance date in the NOD
or approved applicable schedule. Extension requests will be granted or
denied in consideration of the details provided in the request and the
risks posed by site-specific conditions.
Note that the above only applies to extensions to compliance dates in
the NOD or approved applicable schedule. It does not apply to compliance
dates included in an enforcement document such as a NOV. The extension
request procedures which apply once an enforcement action is issued are
included in the Grace Period Rule at N.J.A.C. 7:26C-10.3(d)4. These procedures
limit extension approvals to a single extension of up to 90 days.
Extensions to compliance dates included in a NOD or a NOV/NOIT that are
requested due to processing delays on the part of the Department shall
be granted (e.g. well search request backlog).
Rejectable Document Policy
The Policy on Document Rejection, which has been posted for several
years on SRWM’s web site, put forth the SRWM’s procedure for
handling submittals which are missing key required components, or that
depart substantially from providing the technical information required
to allow for meaningful Department review. The adoption of the Grace Period
Rule makes this policy obsolete so it has been removed from the web site
and is no longer an effective SRWM policy. Submittals, which would have
previously been rejected under this policy, will now be the subject of
a NOD. Because these documents depart so significantly from the requirements
of the Technical Requirements that review is not possible or meaningful,
the NOD will necessarily be lacking in details. The submittal sent in
response to the NOD must be fully compliant with the Technical Requirements
or a NOV or NOIT will be issued. Basically, when a party submits a document
of such poor quality they have wasted their opportunity to gain meaningful
Department input prior to becoming subject to the Grace Period requirements.
Technical Review Panel
The Department established the Technical Review
Panel (TRP) as a forum to resolve site-specific technical disputes.
With the adoption of the Grace Period Rule clarification is needed regarding
the role of the TRP. Parties conducting remediation may still request
that disputed issues be reviewed by following the “Review
of Technical Disputes Arising in Remediation and Landfill Closure”
procedure (TRP Guidance). They must follow the instructions in the TRP
guidance on the SRWM web site, and the request must be received prior
to the compliance date established in a NOD or applicable schedule. Note
that the TRP is not an option for issues that are the subject of an enforcement
action. This means that a party may not submit a request for TRP review
of an issue that has been included in a NOV, AONOCAPA or other enforcement
action, and if such a request is received it will be denied. To further
clarify, requests must be received prior to the compliance date specified
in a NOD or applicable schedule. If a TRP request is received just prior
to a compliance date, and if a reviewer in the management chain or the
TRP decides that it will not consider the issue, the reviewer or TRP may
establish a new compliance date. The duration of the extension allowed
for compliance when a request is denied will not exceed the length of
the original corrective action timeframe in the NOD, approved schedule
or rule requirement. If the TRP agrees to consider the issue raised, and
if a stay was requested as part of the request, the TRP will hold the
compliance date in abeyance and enforcement action will not proceed until
such time that a new compliance date is exceeded. The TRP’s decision
will be issued in writing and a new compliance date will be established.
Also, it should be noted the Grace Period Rule does not change the fact
that all reasonable attempts should be made to resolve technical disputes
through discussions between party responsible for conducting remediation
and SRWM case team members prior to submitting a TRP request.
Variance Requests
Requests for variances from the requirements of the Technical Requirement
should be included in submittals for Department approval before implementation
whenever possible. If a submittal that is made in response to a NOD includes
a variance request as a means to address a deficiency noted by the Department,
the variance request must be justified in accordance with N.J.A.C. 7:26E-1.6(c).
If the Department is able to approve the variance request then the deficiency
has been satisfied. If the Department is not able to approve the requested
variance because it is not adequately justified or is not technically
sound, the deficiency will become a violation and included in a NOV or
NOIT. A grace period will be allowed for the correction of minor violations
prior to the assessment of penalties.
Minor and Non-minor Violations
The process of technical submittal review and comment that currently
occurs is being replaced by a similar process. The Department will conduct
a review of the submittal and the issue a NOD, instead of a comment letter,
prior to the application of the Grace Period Rule. Parties responsible
for conducting remediation should evaluate each deficiency included in
a NOD against the violations table at N.J.A.C. 7:26C-10.4(c). Deficiencies
included in a NOD that are not adequately addressed within the specified
timeframe will become violations. Whether they will be minor or non-minor
violations can be determined by reference to this table. Minor violations
included in a NOV or NOIT will be afforded a grace period for correction.
Non-minor violations will be subject to penalty or MOA termination. This
means that some deficiencies included in a NOD may immediately warrant
a penalty assessment or termination of a MOA if not corrected pursuant
to the NOD.
Conditional Approvals
In order to efficiently implement the Grace Period Rule the Department
has determined that it must move away from issuing conditional approvals.
Conditional approvals blur the line between compliance and non-compliance,
cast doubt upon the date that a violation may have occurred, and place
the Case Manager in the difficult position of enforcing conditions of
approval after the fact. The Department therefore expects that parties
conducting remediation will submit documents that can be approved unconditionally.
Prior to approving a submittal the Department will seek written agreement
from the party responsible for conducting remediation that it accepts
and incorporates all Department requirements into the subject work plan
or report. Depending upon the scope and nature of the deficiencies a new
submittal may be required, an amendment or addendum may be required, or
simply a letter documenting correction of the deficiency may suffice.
The consequence of not addressing noted deficiencies within the specified
timeframe would be the issuance of a NOV or a NOIT for MOA cases. Non-compliance
with the NOV or NOIT will lead to assessment of penalties prescribed by
the Grace Period Rule or the termination of the MOA. |
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