NJDEP’s Handling of Unregulated Heating Oil Tanks after May 7, 2012

As everyone in the environmental community in New Jersey is now well-aware, the privatization of environmental clean-ups in New Jersey as required by the Site Remediation Reform Act (“SRRA”), which was signed into law by Governor Corzine on May 7, 2009, comes into full effect on May 7, 2012.  As of May 7, 2012, all parties remediating sites in New Jersey will be required to hire a Licensed Site Remediation Professional (“LSRP”) to conduct the remediation and they will be required to remediate the site without prior New Jersey Department of Environmental Protection (“NJDEP”) approval. While there are numerous significant changes precipitated by SRRA that will dramatically change the process used to conduct environmental investigations and clean-ups, one major highlight is that the NJDEP will no longer be issuing No Further Action letters (“NFA”) once a remediation is complete. Instead, LSRPs will be issuing Response Action Outcomes (“RAO”), which is the new equivalent to a NFA.

However, to further confuse environmental consultants, lawyers, and responsible parties alike, effective May 7, 2012, a LSRP may no longer issue a RAO for cases were the only area of concern (“AOC”) being remediated is a discharge from an unregulated heating oil tank (“UHOT”) system. In general, an unregulated heating oil tank is a residential heating oil tank or a heating oil tank system on a non-residential property with an aggregate capacity of less than 2,000 gallons. In those situations, the case must be processed through the UHOT program at the NJDEP, and the NJDEP will issue a NFA.

Be careful, this only relates to situations were the only AOC is a discharge from an UHOT. For cases where there is a discharge from an UHOT and there are other AOCs, such as discharges from regulated tanks, a LSRP must be hired to address the remediation and, ultimately, the LSRP will issue a RAO that relates to discharges from all AOCs, including the discharge from the UHOT.

Moreover, site owners and responsible parties should note that the person responsible for conducting the remediation of an UHOT discharge may continue to use a LSRP, but the LSRP would not be required to submit an LSRP Notification of Retention or Dismissal form unless, of course, there are other AOCs aside from a discharge from an UHOT.

This change, as well as other recent changes to environmental clean-ups in New Jersey, will be reflected in an amendment to the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”) rules at N.J.A.C. 7:26C-13.