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NJDEP Undertakes Storage Tank Review

The NJDEP’s review is focusing on USTs installed before 1998 that do not comply with the U.S. Environmental Protection Agency (EPA) safety standards that came into effect that year. The 1998 EPA standards required, among other things, that all active USTs be retrofitted with specified spill, overfill, and corrosion protection, that all registered UST owners provide documentation confirming that their USTs were appropriately retrofitted, and that any USTs not retrofitted be removed and closed according to applicable regulatory requirements.

The Agency began sending notice letters to property owners with potentially non-compliant USTs this fall. If the owner fails to respond to the NJDEP notice or fails to document and confirm that the UST in question was retrofitted or removed in compliance with applicable law, NJDEP will automatically enroll the property/owner in the State’s Site Remediation Program (SRP) and begin assessing an annual Site Remediation Program fee, retroactive to 2012 (the year NJDEP began assessing fees under the SRP).  The notice letters from NJDEP direct the owner to retain a Licensed Site Remediation Professional (LSRP), to remove any non-compliant UST, to investigate the surrounding area to determine if soil or groundwater has been impacted, to conduct any required remediation, and to obtain a Response Action Outcome (RAO) determination from the LSRP, formally closing the UST and certifying that all required remediation is complete. As you can imagine, the costs associated with investigating the existence and location of potentially non-compliant USTs, removing non-compliant USTs, and conducting any necessary soil and/or groundwater remediation can be substantial. 

If you receive an NJDEP notice letter alleging that you have a non-compliant UST on your property, it is important to understand (before responding) that because NJDEP’s records review is internal and therefore limited to NJDEP records, the results of that review may be unreliable.  Mistakes are made. Often NJDEP’s records are dated, disorganized, and inaccurate. Records being relied upon frequently have been prepared by prior property or UST owners, and may not be complete or accurate. Often those records cannot be verified, as the former owners cannot be located.  We are aware of instances where USTs were improperly registered to the wrong location, or where NJDEP was unable to determine the registered UST owner and therefore contacted several potential owners, assessing each an SRP fee.

In the event that you receive a non-compliant UST notice letter from NJDEP that raises questions, you should review available property files to determine whether any such UST actually is or was present on the property. You also should consider conducting a review of NJDEP’s files to determine on what basis the Department identified and characterized the UST as non-compliant, and to confirm whether or not such characterization was accurate.  If you find discrepancies or errors in the records, it is best to first contact NJDEP in an effort to correct the records and obtain a determination that you are not, in fact, responsible for a non-compliant UST. 

On the other hand, if NJDEP’s files are correct, and a non-compliant UST for which you are responsible is (or likely is) present, you will need to retain an LSRP promptly to investigate and close the UST pursuant to applicable NJDEP requirements.  Delay will result in NJDEP assessing additional fees and possibly fines and penalties.

Whether you want to challenge an NJDEP notice letter alleging that you are responsible for a non-compliant UST, or if you need to retain an LSRP and formally investigate and close a non-compliant UST, qualified technical consultants and experienced environmental counsel will help to expedite the process. Please contact a member of Post & Schell's Environmental Practice Group if you have any questions or if you would like additional information.

Disclaimer: this E-Flash does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this E-Flash without first seeking the advice of counsel.

 

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Author

Stephen C. Jones is a Principal and Co-Chair of the Firm's Environmental Practice Group. He has practiced environmental law for over 25 years, and represents venture capital and private equity investors, real estate opportunity funds, private developers, chemical, health care, energy, and manufacturing companies, among others.

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