The DEP now requires public notice and community outreach by persons who investigate and remediate contaminated sites in New Jersey.1 New amendments to the Technical Requirements for Site Remediation (Tech Regs) will raise public awareness and scrutiny from the early stages of investigation of the site through the remediation. At least two weeks prior to performing any remedial investigation activities or remediation, either a sign must be posted or a public notice letter issued. With respect to sites at which a remedial investigation or remediation began prior to Sept. 2, 2008, the posting of a sign or the issuance of a notice letter need not take place until Sept. 2, 2009.
These new amendments provide an opportunity for communities, the media and elected officials to question, shape and perhaps even challenge the remedial selection process. There are other significant potential ramifications as well. In this article we will not only identify these potential ramifications, we will also set forth some questions we suggest you consider as we walk you through the public outreach requirements and then elaborate on the planning you may want to initiate to “manage” these potential ramifications.
The DEP’s new public outreach requirements may: (1) influence selection of remedial action; (2) create tension between property owners and the persons who are responsible for conducting a remediation; (3) increase the risk of liability for off-site contamination; and (4) affect the reputations of persons responsible for performing the site remediation. Given these possible consequences, it is wise, if not imperative, for persons who are responsible for performing a remediation to anticipate and address their needs for public relations and legal assistance before this public notice and outreach process begins. Some questions to consider include:
- Do you need an attorney or a public relations expert, or both, to assist you in preparing the required notification letters and fact sheets?
- Do you need to prepare a list of “talking-points” to have handy to respond to inquiries from the public, the media, community organizations and/or elected officials?
- Should you designate and train specific employees or company representatives to respond to inquiries from the public, the media, community organizations and/or elected officials?
- Should you prepare a “Questions & Answers” document about the site and distribute it to the public along with the required notification letters?
- Would it be a good idea to hold a meeting or to establish a Citizen’s Advisory Panel (CAP) to discuss site conditions and your plans for remediation before you are required to make public notifications in accordance with the new amendments to the Tech Regs?
A discussion of DEP’s new public notice and outreach requirements along with their potential ramifications and possible actions to mitigate these impacts follows.
Summary of Public Notice and Community Outreach Requirements
The new public notice and outreach requirements apply to “any person responsible for conducting a remediation.” See N.J.A.C. 7:26E-1.4 et seq. This includes any person who executes or is otherwise subject to an oversight document, and any person who is performing the remediation or has control over the person who is performing the remediation. See N.J.A.C. 7:26E-1.8.2 Moreover, the notice obligations of this person responsible for conducting the remediation are not triggered solely by cleanup activities. They are triggered by “actions taken to investigate contamination and the problems presented by a discharge.” See 40 N.J.R. 5014. According to the DEP’s response to comments on the Public Notice Requirements, “actions taken to investigate contamination and the problems presented by a discharge” include the Remedial Investigation and site cleanup, but not the Preliminary Assessment or Site Investigation.
Sensitive Population and Resource Checklists
The new amendments to the Tech Regs require that the person responsible for conducting a remediation must:
- Identify all sensitive populations and environmental resources (i.e. residences, schools, child care centers, public parks, playgrounds, surface waters, drinking-water wells and priority well-head protection areas) that are located within 200 feet of the site; and
- Submit a Sensitive Population and Resource Checklist to the DEP Case Manager, the DEP Office of Community Relations, the clerk of each municipality in which the site is located and the local health official.
The Sensitive Population and Resource Checklist must be prepared and submitted no later than two weeks prior to either: (1) initiating field activities associated with the remedial investigation of a multiphase remediation; or (2) initiating a single phase remediation.3
Public Notice: Signs and Notification Letters
After preparing and submitting the Sensitive Population and Resource Checklist to the DEP, the person responsible for conducting the remediation must provide the public with notice of the status of the remediation by using one of the following options:
- Post and maintain a sign at least 2 feet by 3 feet in size, that is visible to the public (see details below); or
- At DEP prescribed times, issue Notification Letters to advise property owners and tenants within 200 feet of the site of the status of the remediation (see details below).
The form of notification may be changed at any time (e.g., from posting a sign to sending periodic notification letters, or from sending periodic notification letters to posting a sign).
The sign must state that an environmental investigation/cleanup is in progress at the site and it must include:
- The telephone numbers for the person responsible for conducting the remediation and the DEP Office of Community Relations;
- Either the DEP Preferred ID Number for the site, the EPA Identification Number for the site or the DEP Hotline Number for the site; and
- The date that the sign was posted.
The sign must remain posted until such time that the DEP deems the remediation complete by issuing a No Further Action and Covenant Not to Sue Letter (NFA/CNS) for the site.
If public notice is provided by sending Notification Letters, the following requirements apply:
- The Notification Letters must be sent by certified mail, or there must be a certificate of mailing.
- The Notification Letters must be sent to the following:
— Each owner of real property as shown on the current municipal tax duplicate4, and tenants of those properties, located within 200 feet of the site boundary.
— The administrator of each school and child care facility identified in the Sensitive Resource Checklist.
- The Notification Letters must include the following site information:
— The name and address of the site.
— Tax block(s) and lot(s) for the site.
— The DEP Preferred ID Number for the site, the EPA Identification Number for the site, or the DEP Hotline Number for the site.
— A statement that contamination has been identified.
— A brief description of the type of contamination in common language, the affected environmental media and action(s) being taken at the site.
— Contact information for the person responsible for conducting the remediation and for the DEP Office of Community Relations.
— A statement that the person responsible for conducting the remediation will provide a copy of all environmental reports to the municipality upon the municipality’s request.
Additional notification letters that reflect the current condition and progress of the remediation must be sent every two years after the initiation of the single-phase remediation or the remedial investigation until an NFA/CNS is issued by the DEP. If a sign was posted, no additional notification letters are required. Also, a sign does not need to be updated every two years. The follow-up required when using a notification letter may be a significant consideration when deciding whether to post a sign or issue a notification letter to comply with these new public notice requirements.
For sites that are in the early stages of remediation, the posting of signs or the mailing of notification letters must occur no later than two weeks prior to either: (1) initiating the field activities associated with the remedial investigation of a multiphase remediation; or (2) initiating a single phase remediation. For sites where the remedial investigation or single-phase remediation was initiated prior to Sept. 2, 2008, the posting of a sign or the mailing of a notification letter must occur no later than Sept. 2, 2009.
All notifications must be in English, unless a language other than English is predominately spoken by property owners and tenants in the area within 200 feet of the site. If that is the case, the notification must also be provided in the predominant language.
Documentation of compliance with public notice requirements must be provided when the person conducting the remediation seeks to close the case by requesting an NFA/CNS from the DEP. Failure to comply with the mandatory notification requirements, whether the remediation is being conducted voluntarily or with DEP oversight, will trigger possible enforcement action and penalties under the Department Oversight of the Remediation of Contaminated Site Rules (N.J.A.C. 7:26C-1 et seq.).
Additional Notification Requirements for Off-Site Contamination
If contamination migrates off site in any way (e.g., air, land or water, etc.), the person responsible for conducting the remediation must prepare a fact sheet that contains detailed information regarding the magnitude and potential effects of the contamination. The fact sheet must be distributed to property owners and tenants within 200 feet of the site within two weeks after the determination that contamination has migrated off site. For sites where contamination migrated off site before Sept. 2, 2008, the fact sheet must be distributed no later than Sept. 2, 2009. Further, within four weeks of discovery of the off-site contamination, the person responsible for conducting the remediation must publish the fact sheet as a display advertisement (not as a legal notice) in a daily or weekly newspaper, and submit a copy of the fact sheet and display advertisement to the DEP Case Manager, the DEP Office of Community Relations, the clerk of each municipality in which the site is located and the local health official.5 Finally, within four weeks after the horizontal and vertical extent of the off-site contamination has been delineated, the person responsible for conducting the remediation must send updated fact sheets to property owners and tenants within 200 feet of the site, publish an updated fact sheet as a display advertisement in a daily or weekly newspaper, and submit the updated fact sheet and updated display advertisement to the public officials who received the original fact sheet.6
These requirements for preparation, distribution and publication of fact sheets when there is off-site contamination do not supersede the general notification requirements to send notification letters or post a sign.
Additional Potential Community Outreach Requirements
The new amendments to the Tech Regs represent the minimum notice requirements. The person responsible for conducting the remediation must provide additional public outreach if the DEP determines that it is needed due to site-specific circumstances (which are undefined in the amendments) or when the DEP determines that there is substantial public interest in the remediation activities at a site.
According to the new amendments, the DEP may determine that there is “substantial public interest” in the remediation activities at a site when:
- Contamination has not migrated off site and it receives a petition containing the signatures of 25 or more people who live or work within 200 feet of the site;
- Contamination has migrated from the site boundary and it receives a petition containing the signatures of 25 or more people who live or work within 200 feet of the extent of the contamination; or
- It receives a request by a municipal official such as a mayor, chairperson of an environmental commission or health official.
Presumably, it should not be too difficult for interested groups to meet the “substantial public interest” threshold and significantly raise the visibility of your remediation with the community and the press. When the DEP determines that there is “substantial public interest,” the DEP must notify the person responsible for conducting the remediation and post a summary of its determination on the DEP website.
After receiving notice of “substantial public interest” from the DEP, the person responsible for conducting the remediation must develop and implement a plan for additional public outreach that is based upon the needs expressed by the community. The outreach may include, without limitation, the following:
- Publicizing and hosting an information session or public meeting;
- Publishing a notice containing basic information about the site in the local newspaper; and/or
- Establishing a local information repository.
Potential Ramifications from Implementation of These Public Notice Requirements and Possible Planning Aids to Mitigate the Ramifications
We foresee the following potential ramifications of this public outreach process and suggest these possible planning aids to mitigate them:
Influence on Remedial Action Selection
While the DEP stated that the new amendments to the Tech Rules will not affect the remedial action selection process for any site,7 there could be delays and pressure to accept the public’s choice of the remedy during the new public notification and outreach process. Indeed, the new public notice and outreach requirements appear to be yet another step in the DEP’s efforts to encourage public influence and pressure over the remedial selection process. While the person performing the remediation may have negotiated the right to remediate the site to nonresidential standards, the public and politicians may seek more permanent and less cost-effective remedies. Only time will tell whether the DEP’s remedial approval discretion will be swayed by a public outcry for a permanent remedy at a site.
Planning Response: Well crafted notification letters and fact sheets that are drafted with the assistance of a public relations team and counsel, in conjunction with early meetings with local officials, should certainly be considered. The new amendments to the Tech Regs make planning for public notification and outreach an integral part of your remediation strategy.
Tensions between Property Owners and Persons Responsible for Conducting the Remediation
In instances where the property owners and persons responsible for conducting a remediation are not one in the same, these new public outreach requirements have the potential to create tension. For example, the owner of the site may prefer that notice letters be issued but the person responsible for conducting the remediation may prefer to post a sign. It may be too late for the new owner to negotiate against the use of a sign when the person responsible for the remediation is under time restraints to satisfy DEP deadlines.
Planning Response: While it may be too late in some situations, the best way to avoid this problem, and to minimize expense and delay, is to address the responsibilities for compliance with the public notice and outreach requirements of the Tech Regs within the property transaction documents. These documents can address the type of public notice/outreach that will be issued and the communications role of the buyer/seller and tenant/landlord.
Increased Risks of Liability for Off-Site Contamination
The new amendments to the Tech Regs specify that the person responsible for conducting the remediation determines whether contamination has migrated off site. See 40 N.J.R. 5016. However, the new amendments to the Tech Regs do not address requirements for preparation and distribution of fact sheets when a person responsible for conducting the remediation and the DEP disagree as to whether contamination has migrated off site. We assume DEP will assert that it has the final say. What happens when the person performing the remediation is willing to investigate off site but is concerned about issuing these notices, fact sheets, etc., which may be deemed as admissions of liability? In these cases, there may be instances where a person responsible for conducting a remediation is required to prepare, distribute and publish a fact sheet when he or she contests the DEP’s determination.
Failure to comply with the new requirements for public notice and outreach will trigger potential penalties and prevent a site from receiving an NFA/CNS. Thus, a person in this situation has a real Hobson’s choice that, no matter what the answer, results in increased risk of liability for off-site contamination.
Planning Response: This is a situation where the dilemma is best viewed from the team perspective. The key will be to craft a response that “cooperates” with the DEP but preserves the legal rights of the company by not making an admission. Consultation among team members, including management, environmental managers, public relations representatives and legal counsel is vital to achieve this objective.
Impacts to Reputation
Words shape perceptions and perceptions shape reality. A hard-earned reputation for being a good corporate citizen can be eroded when community activists, politicians and the press do a better job of spreading their messages than does the company.
Planning Response: This is where the company that prepares and has answers to the questions we initially asked in this article will have the best opportunity to preserve its reputation.
The sooner a company starts preparing to implement these new public notice and outreach requirements, by creating the appropriate management, technical, legal and public relations team that will anticipate the issues and develop a plan, the better chance a company has of “managing” the potential ramifications of the DEP’s new public outreach requirements.