Tackling post-remediation care in New Jersey

Environmental remediation projects are rarely a one-and-done undertaking. A site may need to be monitored and maintained long after regulatory agency closure, if the active remediation did not achieve the most stringent cleanup standards.

Post-remediation care encompasses the use of legal and/or physical controls to allow cleanups to be performed safely and cost effectively. Thousands of these controls are in play throughout New Jersey, with many requiring decades-long commitments to their monitoring and maintenance. What exactly does post-remediation care entail, how long does it last for, and is there any way to ease the burden of this long-term responsibility?

What does post-remediation care address?

Post-remediation care addresses certain types of low level contamination once an active remediation has concluded. When the concentration levels and the extent of contamination are well defined and have been deemed to have been cleaned up to the lowest practical levels, the use of these controls in the post-remediation care phase of the project is often the only way to achieve and maintain regulatory closure objectives.

There are two key types of site controls in the post-remediation care phase of a property: a legal institutional control and a physical engineering control. In many states, post-remediation care programs are required to oversee the long-term implementation of these site controls associated with soil and groundwater. Post-remediation care is applicable whether the control used is an engineering control such as a cap or a fence on a site, or an institutional control, such as a permit or registration with the state or county.

What is involved in post-remediation care?

Post-remediation care requirements vary from state to state. New Jersey has one of the most structured programs to ensure post-remediation care regulatory compliance obligations are met. Remedial action permits are used for both soil and groundwater to document and track compliance with post-remediation care obligations. These permits establish the length of time the control is predicted to be in place, the parameters and schedule for groundwater monitoring, and the requirements for inspection and certification of control protectiveness.

Most post-remediation care requirements involve inspection, follow-up and recertification every two years. Overseen by a licensed site remediation professional (LSRP), this biennial certification is based on the results of an annual or biennial site inspection or more advanced continuous monitoring technology, along with a review of whether the controls are still protective of public health and the environment. If any cleanup standards have changed significantly since the last certification, an LSRP examines the site to determine if any other measures need to be taken to ensure compliance with the original response action outcome (RAO) issued upon completion of site remediation.

Groundwater not meeting the most restrictive cleanup standards can be designated in a New Jersey Department of Environmental Protection (NJDEP) Classification Exception Area (CEA). This institutional control notifies potential users of the presence of these contaminants. Biennial certification requirements ensure that the area continues to meet the conditions of the CEA, as stated in the remedial action permit. Some sites may require groundwater plume monitoring, which are sampled on a predetermined monitoring schedule arranged with and approved by the NJDEP.

Who is responsible for post-remediation care?

The individual, or individuals, responsible for post-remediation care is still a subject up for debate, because of the wide liability net cast by New Jersey’s regulations. These regulations state that the person responsible for conducting the remediation and utilizing post-remediation care will not be able to shed this liability even after the property is sold. This means that the originator may ultimately be the responsible party if a new or different owner does not follow through on the post-remediation care obligations.

In some cases, even when an originator cannot be identified, the current owner may still be responsible for remediation and post-remediation care. This is especially evident in cases using “historic fill,” soil with low levels of contamination which was used to improve undevelopable land more than 100 years prior. Because of its age, there is no party responsible to clean it through active remediation such as excavation and disposal offsite. However, property owners who discover it have an obligation to mitigate its potential exposure risk to human health and the environment using engineering and institutional controls. There are several thousand of such sites in New Jersey, many of which are clustered in and around major urban centers such as Jersey City, Camden, and Newark.

How long does post-remediation care last?

The length of post-remediation care changes, depending on the level of contamination and which contaminants are being monitored. For groundwater, the post-remediation care period can typically last anywhere from seven to 20 years. Soil, however, is a very different and often-misunderstood situation. Sites with soil control measures in place must be monitored in perpetuity – yes, quite literally forever.

Minimizing risk in post-remediation control

Considering the burden of a decades-long (or even an infinite!) timeline, it can seem impossible to properly predict what may need to be done years into the future, or what these fixes and associated monitoring activities may cost. Thankfully, property owners can utilize two important tools to help cap the costs: insurance and financial assurance.

Legal liability insurance can adequately cover select aspects of post-remediation care to help reduce the burden a property owner may be saddling. For example, insurance coverage could shield a property owner from the costs related to a regulatory re-opener directive. In this scenario, the current owner may get stuck with the requirement to perform additional remediation, because the state changed the contamination type and concentration deemed acceptable.

New to New Jersey thanks to SRRA 2.0, the responsible party now has more options to post financial assurance to implement an engineering control. This set-aside sum is dedicated to funding the operation, maintenance, monitoring, and certification of the engineering control. If the site is not being maintained to the state’s satisfaction, or the responsible party is not responsive, the state may tap into the fund to finance necessary maintenance and repairs. SRRA 2.0 introduces surety payment bonds as a way to meet these financial assurance obligations. This method may be more attractive than a cash escrow trust or a letter or line of credit.

How SECUR-IT manages post-remediation care

Drawing on decades of experience in environmental remediation management, EWMA developed SECUR-IT® to manage these long-term responsibilities and control the associated costs.

• One contract covers up to a decade of service. SECUR-IT contracts are designed to cover multiple years at a time, up to 10 years. One contract covers all services necessary to operate, maintain, monitor, and certify any engineering control or institutional control in place.
• Help put the transfer of responsibility into action. Having a program such as SECUR-IT in place ensures a smooth transition between owners. From the beginning, it will be clear who will provide maintenance, monitoring, and recertification of the site.
• Integrate customized environmental insurance to manage risk. EWMA can work closely with clients to obtain optional insurance coverage for potential risks directly associated with the long-term post-remediation care activities. Through the implementation of creative continuous monitoring strategies, we can assist underwriters to significantly reduce the risk of site actions in conflict with post-remediation care specifications.

Some clients choose SECUR-IT because it brings peace of mind to a process that feels like it will never end, literally and figuratively. Others appreciate how SECUR-IT clearly appoints EWMA as entity with single point responsibility for maintaining the controls, no matter who owns the site at any given time. Capping certain costs certainly has its advantages, too, allowing developers to plan properly for the long run. No matter what brings a developer to SECUR-IT, EWMA is happy to leverage our experience to minimize the headache of post-care remediation.