Essex Chemical Successfully Challenges NJDEP's Natural Resource Damages Suit

Posted on April 12, 2012 by Douglas I. Eilender

The New Jersey Appellate Division sides with Essex Chemical Corporation, a subsidiary of DOW Chemical, in a suit filed by the NJDEP in its effort to obtain both restoration and compensatory natural resource damages (“NRDs”) pursuant to the Spill Compensation and Control Act (“Spill Act”).  The Court held that Essex Chemical did not need to pay $8 million sought by the NJDEP under the Spill Act. 

In NJDEP v. Essex Chemical Corp., A-0367-10, the Court held that the NJDEP failed to prove by a preponderance of evidence that Essex Chemical’s cleanup plan was inadequate.  The NJDEP’s NRD claims against Essex Chemical stemmed from the discharge of hazardous substances on property that Essex Chemical previously owned and operated as a paper products preparation facility located in South Brunswick, New Jersey.  Essex Chemical was remediating the Property with the oversight of the NJDEP.  The lower court dismissed both of NJDEP’s NRD claims.  The NJDEP subsequently appealed the decision, which was the subject to the recent Appellate Division case.

Primary Restoration Damages

The NJDEP sought $5.7 million in Restoration NRDs to implement an alternative groundwater remedy at the Property, which, it was claimed, would remediate the groundwater in ten years.  The trial court found that the NJDEP did not establish that they were entitled to damages to restore the Property to pre-discharge conditions in that expedited timeframe.  The trial court evaluated several factors including cost and public harm in deciding that the NJDEP’s arguments were lacking.  In this case, the Appellate Division indicated that the NJDEP, which maintained the burden of proof on the issue of damages, had to establish by a preponderance of the evidence that its expedited remediation plan should be implemented rather than Essex Chemical’s plan of in-situ remediation.  The trial court and the Appellate Division both held that the NJDEP did not show the need to restore the Property to pre-discharge conditions within ten years, especially when the NJDEP did not show that contamination remaining on-site was causing harm to any sensitive receptors or pose any threat to the public health, safety or welfare.  The Appellate Division pointed to the fact that Essex Chemical had spent over $5 million in remediating the groundwater with the NJDEP’s oversight.  The pace at which Essex Chemical was performing the remediation was reasonable and the proposed remediation plan was already approved by the NJDEP.  
 
Compensatory Resource Damages

Further, the NJDEP sought over $2 million in Compensatory NRDs for alleged loss of use of NRD services, which in this case was groundwater.  The Appellate Division affirmed the trial court’s dismissal of the claim.  The Court found that they were not required to provide NJDEP’s experts any special deference where the expert’s opinions were based on economic factors in lieu of environmental factors.  Further, and more importantly, the Appellate Division agreed with the trial court’s finding that an award of compensatory NRDs was not warranted based on the expert testimony that the NJDEP presented.  The NJDEP failed to establish why they used the Resource Equivalency Analysis (“REA”) methodology to calculate NJDEP’s loss of use of groundwater for the NRD claim.  The REA determines how much restoration would be needed to offset the nature resource injury.  Using the REA, NJDEP’s expert calculated how much groundwater was allegedly injured by contamination at the Property, and then proposed a certain amount of acreage to be purchased for future protection and re-charge of groundwater.  The assessed value of the acreage to be purchased was the monetary amount of compensatory NRDs sought by the NJDEP.  The trial court noted that the REA is ordinarily used where NJDEP is calculating the injury to wildlife, where it is impossible to quantify lost services or use.  There was no instance presented at trial, where the REA was used to value loss of use for groundwater.  As such, the Appellate Division affirmed that the application of the REA analysis to this case was flawed and unconvincing. 

Even assuming that the application of the REA was accepted, the Appellate Division noted that the expert’s analysis would have potentially provided NJDEP with a windfall because there was no adjustment for the different types and quality of services provided by the undeveloped land that would have been acquired.  For example, the Appellate Division discussed the fact that, in addition to groundwater protection, open space provides for public recreation and suitable habitat for wildlife.  The Court found the expert’s analysis unfairly imposed on Essex Chemical costs that were in no way related to the injury resulting from the contamination.  Further in developing comparables used in the REA, NJDEP failed to utilize industrial properties such as the Property in question nor did it take into consideration zoning, location, utilities, tax rates and aesthetics, all of which effect the price of land.  The Court found that the damages were not indicative or equivalent to the loss. 

Conclusion

This case is good news for those challenging NRDs, as it puts a significant dent in NJDEP’s basis for calculating NRDs.  It is unclear whether the NJDEP will challenge this ruling and appeal to the New Jersey Supreme Court.  However, given the time and money spent in developing and defending the REA methodology, an appeal is likely.

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Watershed Date for N.J. Site Remediation: May 7, 2012

Posted on April 3, 2012 by Susan C. Karp

Article as originally published in New Jersey Law Journal.

In just over two months, nearly every existing site remediation case pending before the New Jersey Department of Environmental Protection (NJDEP) will become subject to the 2009 Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq. The regulated community and NJDEP have been gearing up for this pivotal date since the 2009 reform legislation, which was the culmination of years of political and agency strategy, stakeholder meetings and white papers. All of these efforts have paved the way for the development of New Jersey’s version of a semi-privatized site remediation program, relying on private consultants to oversee the cleanups languishing in a massive NJDEP administrative backlog. The reform act also establishes strict remediation timeframes and solidifies affirmative obligations for cleanups in response to a growing political concern that NJDEP was failing to adequately protect the environment.

In the three years since the reform act was passed, private consultants temporarily licensed under the law as “licensed site remediation professionals” (LSRP) have been both performing and signing off on new cleanups initiated after the reform act was enacted and older cleanups where the remediating party opted in to the LSRP program. During this interim period, NJDEP has been in so-called compliance assistance mode and, for the lion’s share of cases, has been allowing responsible parties to move forward at a much slower pace without threats of penalty.

But the watershed date of May 7, 2012, which once seemed so far away, is nearing — the date when so many of the over 20,000 backlogged cases currently under NJDEP oversight must transition to the LSRP program. The effectiveness of the reform legislation will take years to evaluate, particularly given the dearth of new, well-financed brownfield transactions that should be able to take advantage of the new paradigm which, despite its demands, will allow cleanups to proceed without the delays of waiting for the state to review and dispute each phase of cleanup.

In the near term, parties involved in cleanups are focused on the immediate implications of May 7, 2012, and what they need to do to avoid a regulatory misstep that exposes them to NJDEP’s newly enhanced enforcement capabilities.

Retain an LSRP by May 7, 2012
By May 7, 2012, nearly all cleanups currently under NJDEP oversight must hire an LSRP, who will then assume the primary oversight role of the cleanup. LSRP retention occurs by submission of an LSRP “notice of retention or dismissal” form, identifying the LSRP. The form requires the applicant to state whether the LSRP is being retained to remediate and ultimately certify that the entire site is clean or just a particular area of contamination. This is an important distinction to be considered.

The shift in power from NJDEP case manager to LSRP creates a new dynamic between the environmental consultant and its customer, moving from a partnership based on trust and advocacy to one which has the potential to become adversarial. Under the reform act, the LSRP has new whistle-blower type obligations supported by significant financial penalties, loss of license and even imprisonment. But not all environmental consultants in the state are currently or will ever become licensed, and there are numerous consulting firms that do not have an LSRP on staff, leaving customers to make the business decision of whether to start over with a new consultant or pay a second firm that has an LSRP to oversee their already competent consultant.

Shopping for the right environmental consultant is now, perhaps more than ever, critical to a cleanup, because the degree to which an LSRP is willing to use its professional judgment (as permitted under the reform act), in the face of confusing technical rules and NJDEP guidance documents may make the difference between an efficiently run case or a protracted, overly conservative and expensive cleanup. Careful consideration should also be given to using an LSRP in a transactional due-diligence setting; one of the few instances of invasive environmental investigation where an LSRP is not required. In general, buyers will want to use an LSRP who can investigate the site with the gravitas of the state and then see the matter through to closing, while sellers fear the reporting obligations of the LSRP, which could trigger cleanup obligations before a deal goes to closing.

Address Outdated Agreements
As customers around the state retain their LSRP, they should be re-evaluating the consultant’s or their own template services agreements. The review should focus on making the terms consistent with the reform act and contractually creating protections for the client that the law may have taken away. For example, the LSRP assigned to a case must report discharges and other conditions, as well as deviations from remediation work plans, to NJDEP. Many LSRPs are expecting revisions to the standard confidentiality clause to allow for this self-reporting while customers want to secure the right to object to the obligations to report before a report is made. Customers also want LSRPs to notify them of any investigations of the LSRP being undertaken by NJDEP or the LSRP licensing board, since that can also trigger an audit of the LSRP’s entire body of work under the reform act. Customers need to ensure that the consulting company has notified its insurance carriers where it is employing LSRPs to ensure that standard coverages afforded to employees of the firm apply to the new risks inherent to the LSRP role.

Likewise, parties to real estate transactions need to be aware that contractual provisions and milestones drafted prior to the enactment of the reform legislation may no longer be applicable. A buyer will no longer be obtaining a No Further Action letter from NJDEP, rather the LSRP will be issuing the buyer a Response Action Outcome. Many contracts and insurance policies were not drafted in contemplation of an affirmative audit process by NJDEP. The reform legislation gives NJDEP the right to conduct such an audit up to three years after the issuance of this formal LSRP signoff.

Mandatory Deadlines; March 1, 2012
The reform legislation established four mandatory timeframes covering submissions to NJDEP of a Preliminary Assessment and Site Investigation report for matters subject to the Industrial Site Recovery Act or NJDEP’s underground storage tank law; an initial Receptor Evaluation identifying the effects of contamination on nearby residential properties and schools, groundwater, potable water and indoor air; an Immediate Environmental Contaminant Source Control Report; and a Free Product Interim Remedial Measures Report. The mandatory timeframe for each of these submissions is March 1, 2012, for all cases initiated as of March 1, 2010, except for cleanups triggered after that date by any of the events set forth in N.J.A.C. 7:26C-2.2(b), in which case the submissions are due two years from the date of that event.

Failure to meet a mandatory timeframe requires NJDEP to take direct oversight from the responsible party, a result that NJDEP wants to ensure remediating parties do not strive for. Perhaps the most draconian consequence of direct oversight is the mandatory relinquishment of the right to make decisions about remedial strategy to the state, and the obligation of the remediating party to post a financial assurance in the full amount of the cleanup which the state can then use itself to perform the cleanup.

NJDEP is now issuing Compliance Assistance Alerts warning of the March 1, 2012, mandatory deadline and advising of NJDEP’s right to assume direct oversight. There had been some indication from NJDEP that it would seek a method to defer taking direct oversight, but no such mechanism has yet been identified, at least not to the public.

DEP Staff Reassignments
The role of the NJDEP site remediation case manager has been phasing out over the last year and as of May 7, 2012, will become largely obsolete. While the regulated community has been enjoying NJDEP’s compliance assistance mode, with case managers actually un-assigning themselves from the cases they once managed, most case managers have now been quietly reassigned to NJDEP’s Bureau of Enforcement or to its document review and inspection teams. NJDEP has historically been lax on enforcement on all but the most egregious of site remediation violations. However, with hundreds of personnel moved to these new posts, and with LSRPs now performing what was once NJDEP’s job, it is well within the realm of possibility that NJDEP will use its resources to effectuate much more aggressive enforcement initiatives.

DEP Ranking of Contaminated Sites
The reform legislation also compelled NJDEP to rank all of the sites on its Known Contaminated Site List within a year of passage of the law. NJDEP did not meet this deadline but the ranking is in progress, as NJDEP has confirmed in new boilerplate language that now appears in NJDEP correspondence. Under the reform legislation, cases that have high priority ranking permit NJDEP to conduct a more detailed review of documents submitted by the LSRP than would be otherwise conducted.

As with any major modification to a regulatory process, the final transition to LSRPs required by the Site Remediation Reform Act is being greeted with more trepidation than optimism. A long-awaited rule proposal issued last August, to make NJDEP’s various environmental regulations consistent with the law, went well beyond the intent of the reform legislation and drew wide concern from industry groups, which was expressed during the rule’s public comment period. If history repeats itself, the rules will pass with little change. While NJDEP positions itself in its new role, the regulated community is best advised to prepare itself by coming into compliance during these early stages of the state’s full transition into the LSRP program.


Reprinted with permission from the FEBRUARY 27, 2012 edition of New Jersey Law Journal. © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.  

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NJDEP to Rank Contaminated Properties Based Upon Environmental Risk

Posted on March 29, 2012 by David P. Steinberger

Over the next three to four weeks, the NJDEP will be sending letters to the responsible parties for all contaminated properties in New Jersey (other than residential properties) providing the NJDEP’s proposed ranking for each site.  Responsible parties will have only about 60 days to “challenge” those rankings.

The Site Remediation Reform Act, passed in 2009, not only established the LSRP program, but also requires the NJDEP to establish a “Priority Ranking System” to classify/categorize all contaminated properties in the state.  Specifically, the Act requires the NJDEP to create “a ranking system that establishes categories in which to rank sites based upon the level of risk to the public health, safety, or the environment, the length of time the site has been undergoing remediation, the economic impact of the contaminated site on the municipality and on surrounding property, and any other factors deemed relevant by the department.”  Site rankings are expected to become public in September 2012.

Contaminated sites will be ranked between 1 and 5, with category 5 reserved for sites presenting the highest risk to public health, safety or the environment, or the sites undergoing remediation for the longest time.  Category 1 will be for the sites with the least risk.  The NJDEP has not yet included economic impact or other factors in their ranking system, despite the Act’s mandate that those factors be included in the ranking process.

The rankings have been established using computer modeling, based upon electronic data submitted for contaminated sites as well as the NJDEP’s existing GIS computer data.  The NJDEP’s model considers data inputs such as the proximity of a site to sensitive receptors (e.g., schools, residential properties, wetlands, etc.), the contaminants of concern at the property, the toxicity of those contaminants, and the affected media (soil, groundwater, surface water or vapor intrusion).  The model then generates a score for a property, and that score in turn determines the overall site ranking.

The letters to be sent out by the NJDEP over the next several weeks are expected to allow responsible parties approximately 60 days to challenge the NJDEP’s ranking.  Those challenges will likely be limited to claims that the NJDEP used incorrect, outdated or incomplete data in determining a site’s rank.  The NJDEP has stated that this challenge period will not be extended for any site.  After considering challenges, the NJDEP is expected to issue its final site rankings in September 2012.  Those rankings will be updated periodically by the NJDEP based upon new data received from on-going cleanup cases.

This is a brand new NJDEP program, and it is not known how the NJDEP will ultimately use the rankings or how the public will use them.  With such uncertainty over the potential use of the rankings, a responsible party should minimally make sure that its site ranking is “accurate” under the NJDEP’s model.

With such a short window to present the NJDEP with any challenges to a site’s rank, it is critical that responsible parties discuss this issue with their attorneys and environmental consultants as soon as they receive their letter from the NJDEP.

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NJDEP Adopts Waiver Rule - Waiver of Strict Compliance with NJDEP Rules Now a Possibility

Posted on March 9, 2012 by David P. Steinberger

On March 8, 2012, the New Jersey Department of Environmental Protection announced the adoption of its “Waiver Rule.”  As set forth in the NJDEP’s press release “strict compliance with rules can sometimes produce unreasonable, unfair or unintended results that may actually undermine, rather than advance, the” goal of the underlying environmental law. The Waiver Rule was first proposed in March 2011, and was subject to significant public comment.  The adoption document released by the NJDEP is 355 pages, and over 500 comments were received for the proposed rule.

In its formal rule adoption, the NJDEP further stated that “The Department of Environmental Protection is adopting new rules at N.J.A.C. 7:1B to establish the conditions and procedures for the Department to approve waivers from strict compliance with its rules where appropriate to address situations where rules conflict, or a rule is unduly burdensome in specific application, or a net environmental benefit would be realized, or a public emergency exists.”

The NJDEP will thus consider granting waivers where an applicant can demonstrate that one of these four conditions apply:

1. A public emergency has been formally declared;
2. There is a conflict between regulations that is adversely impacting a project or preventing an activity from proceeding;
3. A net environmental benefit would be achieved by granting a waiver; or
4. strict compliance would be unduly burdensome.

The NJDEP states that “there is no automatic right to a waiver. Waivers will be granted only on a case-by-case basis after careful review by technical staff and approval of the Commissioner. DEP will not compromise its core mission of protecting public health, safety and the environment, and will continue to make decisions based on science, facts, data and common sense.”

Please note that the NJDEP will not accept any requests for waivers under the Waiver Rule until August 1, 2012.

It seems likely to expect that one of the most sought-after waivers will be based upon a regulatory requirement being “unduly burdensome.”  The proposed rules defines “unduly burdensome” as a situation where strict regulatory compliance “would result in either:

1. Actual, exceptional hardship for a particular project or activity, or property; or
2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.”

How the Waiver Rule will be interpreted and applied in any specific case will remain uncertain until after August 1, 2012, when the NJDEP begins accepting applications for waivers.  Additionally, the Waiver Rule provides a list of regulatory requirements for which waivers will not be allowed.

At this time, anyone with a current or expected dispute with the NJDEP over the strict application of a regulatory requirement should begin to consider whether the Waiver Rule might apply to their specific situation.  If the Waiver Rule might provide some needed relief, you should review the Waiver Rule and its comments carefully and start laying the foundation for a waiver application.
 

 

 

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Lack of Control by Insured Over Related Companies Results in Denial of Coverage

Posted on March 4, 2012 by Gerard M. Giordano

In Newport Associates, Phase 1 Developers Limited Partnership v. Travelers Casualty and Surety Company, No. HUD-L-3070-09 ( New Jersey L. Div. January 24, 2012), plaintiff developers brought a declaratory judgment action against its comprehensive general liability and excess insurance carriers seeking indemnification for cleanup costs related to a site located in Jersey City, New Jersey.  Coverage was denied based on two facts:  (i) plaintiffs were not named insureds under the policies; and (ii) the excess policies contained an absolute pollution exclusion clause.

The comprehensive general liability insurer issued a policy to an affiliate of the plaintiffs (the “Insured”).  The policy defined “named insured” to include entities controlled by the Insured.  The plaintiffs contended that they should be included as named insureds.

The Court, in determining whether the plaintiffs were named insureds, focused on the interpretation of the term “controlled,” which was not defined in the comprehensive general liability policy.  In reviewing both common law and statutes defining the concept of “control,” the Court concluded that for the plaintiffs to be named insureds, the Insured had to own an interest in the plaintiffs of 50% or more.  Because the Insured owned less than 50% interest in the plaintiffs, the Court held that the plaintiffs are not named insureds under the policy.

The second issue addressed by the Court was the absolute pollution exclusion provision contained in the excess policies.  Plaintiffs contended that because the excess insurers made misrepresentations to the State Insurance regulators regarding the exclusion, the court should not apply the absolute pollution exclusion clause to preclude coverage.  The Court held that because the policies at issue were issued after 1982, the date of the passage of the law exempting the umbrella and excess policies from regulations governing CGL policies, the absolute pollution exclusion clause was not invalid.  Accordingly, the Court held the absolute pollution exclusion in the excess umbrella policies to be applicable.  The Court granted summary judgment to the insurers on both issues.

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OSHA's Top Ten Citations

Posted on February 9, 2012 by Gerard M. Giordano

The Occupational Safety and Health Administration (OSHA) is an agency within the United States Department of Labor.  OSHA’s primary function is to inspect workplaces including manufacturing facilities and construction sites to ensure compliance with its safety and health standards.  As a result of these inspections, OSHA in most cases issues citations to employers for violations of OSHA’s standards observed during the inspection.  Below is a list of the top 10 most frequently cited OSHA standards violated in 2011.

1. Scaffolding (29 CFR 1926.451) – This standard applies to construction sites and provides the general safety requirements for the construction and use of scaffolding.

2. Fall Protection (29 CFR 1926.501) – This rule is to protect employees from falling off, onto or through working levels and covers most construction workers.

3. Hazard Communication Standard (29 CFR 1910.1200) – The hazard communication standard provides employees with information about chemicals used in the workplace.  Employers are required to label all chemicals used in the workplace, provide employees with material safety data sheets and train employees on the safe handling of such chemicals.

4. Respiratory Protection (29 CFR 1910.134) – Respirators are typically required to protect employees against airborne contaminants such as dusts, smokes, gases or vapors.  In most cases, the use of respirators must comply with this standard.

5. Control of Hazardous Energy (29 CFR1910.147) – Also known as the lockout/tagout standard, this standard requires employers implement practices and procedures to safeguard employees from the unexpected startup of machinery during service or maintenance activities.

6. Electrical Wiring Methods (29 CFR 1910.305) – This standard sets forth the general requirements for wiring methods in the workplace.

7. Powered Industrial Trucks (29 CFR 1910.178) –The use of powered industrial trucks such as forklifts is regulated by this standard.

8. Ladders (29 CFR 1926.1053) – This standard applies to construction sites and governs the use and construction of ladders.

9. Electrical Systems Design (29 CFR 1910.303) – The inspection, installation and use of electrical equipment in the workplace is governed by this standard.

10. Machine Guarding (29 CFR 1910.212) –The general requirements for machine guarding are described in this standard.
 

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Cole Schotz Welcomes New Partner

Posted on February 7, 2012 by LexBlog

Cole Schotz is pleased to welcome Susan C. Karp as a partner in the Environmental Department.

 

Ms. Karp regularly counsels clients on transactional and regulatory environmental issues relating to the sale and purchase of commercial and industrial properties, the cleanup and redevelopment of contaminated properties and the financial incentive programs available to reduce cleanup costs.

Ms. Karp can be reached at 201-525-6348 or skarp@coleschotz.com.

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How Clean is Clean in New York

Posted on February 1, 2012 by Gerard M. Giordano

New York’s highest court recently upheld New York Department of Environmental Conservation’s (“NYDEC”) regulations regarding cleanups at contaminated sites.  In New York State Superfund Coalition Inc. v. New York State DEC, No. 189 (12/15/11), the New York State Superfund Coalition, a group of companies that own contaminated sites in New York, challenged NYDEC’s regulations requiring responsible parties to cleanup contaminated sites to “predisposal conditions.”

The Coalition argued that the regulations were not authorized by the applicable state statute, Article 27, Title 13 of New York’s Environmental Conservation Law, contending that the statute only required environmental cleanups to eliminate significant threats to human health and the environment.  The court rejected the Coalition’s arguments and held that the regulations were a valid and reasonable exercise of NYDEC’s powers.  The Court determined that NYDEC’s regulations, when read in conjunction with the entire statute, were consistent with the legislative intent and goals to require a complete cleanup of inactive hazardous waste sites.

The Court also addressed the Coalition’s concern that NYDEC’s regulations would require that every site be remedied to a pristine condition.  The Court recognized that while NYDEC has the authority to order the cleanup of a site, such power is not unfettered.  In determining the scope and nature of a cleanup, the Court noted that NYDEC must consider a number of factors including the technical feasibility and cost of the remedy, the danger to human health and the environment and the extent to which the remedy would reduce such danger.  The Court concluded that NYDEC is not empowered to unilaterally impose a remedy without considering the practicalities of such remedies.
 

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NJDEP has Finalized its Vapor Intrusion Technical Guidance Document

Posted on January 25, 2012 by Douglas I. Eilender

The NJDEP has recently finalized its revamped Vapor Intrusion Technical Guidance Document to provide more in depth assistance in the evaluation of vapor intrusion concerns.  Vapor intrusion concerns relate to the potential for the migration of volatile chemicals from the subsurface and to the overlying structures.  The presence of volatile chemicals in the soil or groundwater offers the potential for chemical vapors to migrate through subsurface soils potentially impacting the indoor air (“IA”) quality of effected buildings.  NJDEP’s initial Vapor Intrusion Technical Guidance Document was created in 2005, which governed how vapor intrusion investigations were performed on contaminated sites since that time.  However, after much discussion amongst stakeholders, on January 13, 2012, NJDEP finalized its Vapor Intrusion Technical Guidance Document.

The new Vapor Intrusion Technical Guidance is designed to help assist the investigator to comply with the requirements of the NJDEP to properly assess the vapor intrusion pathway.  The Vapor Intrusion Technical Guidance guides the investigators through the various stages of the process, including receptor evaluation, vapor intrusion investigation, mitigation, monitoring and ultimately termination of the system. 

Basic concepts, such as conceptual site models and multiple lines of evidence, are presented and their application to the vapor intrusion assessment are detailed.  NJDEP provides recommended protocols for investigating the vapor intrusion pathway, including the recommended number of sub-slab soil gas samples and indoor air quality samples collected based on the size of the building footprint and numerous other technical factors.  Indoor air analytical results are compared to the indoor air screening levels and the rapid action levels (“RALs”).  An immediate environmental concern is present when a vapor intrusion related indoor air concentration exceeds the RAL, the source of the exceedance is due to a discharge, and a completed pathway into the structure for vapor intrusion has been confirmed.  If an immediate environmental concern is identified, specified action items are required on an expedited basis.  On the other hand, if a vapor intrusion related indoor air concentration exceeds the indoor air screening level, but is equal to or less than the RAL, a vapor concern exists but the timeframes to act are not as onerous as with an immediate environmental concern. 

NJDEP additionally provides design, mitigation and post-mitigation procedures as well as the appropriate monitoring provisions in its most recent Vapor Intrusion Technical Guidance Document. 

The NJDEP’s Vapor Intrusion Technical Guidance Document and associated tables are located on the NJDEP’s vapor intrusion website.

 

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Be Sure to Read the Fine Print In a Consultant's Proposal

Posted on January 19, 2012 by David P. Steinberger

When hiring an environmental consultant, it is important to carefully review the terms and conditions governing the agreement between you and your consultant.  One of the key components of the professional services agreement is the section dealing with the consultant’s potential liability for its own negligence.  Consulting firms will often look to limit their liability to the contract price or some other nominal amount.  Richard Ericsson and David Steinberger of the Cole Schotz Environmental Law Department discuss this issue and a recent New Jersey court decision in an article titled, "Be Aware of Your Consultant’s Liability Limit."

In its decision, the Appellate Division upheld a consultant’s contract which limited the consultant’s liability to $25,000.  In that case, the consultant, retained by a real estate buyer for pre-acquisition due diligence, had grossly underestimated the cost to clean up the property.  The consultant’s initial cleanup cost estimate was between $13,000 to $17,000, while the final cleanup cost estimate was over $3 Million.  Nevertheless, the court upheld the consultant’s contractual liability limit of $25,000.  This case reinforces the need to carefully review professional services agreements to make sure you are adequately protected.
 

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