Environmental & Energy Law Monitor : Environmental & Energy Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Brownfield & Climate Change Law

The Site Remediation Reform Act enacted on May 7, 2009, and codified at N.J.S.A 58:10C-1 et seq. (“SRRA”), its implementing regulations, and amendments to the Technical Requirements for Site Remediation include new requirements in addressing environmental issues that the New Jersey Department of Environmental Protection (“NJDEP”) deem to be a public health threat and categorize as an Immediate Environmental Concern (“IEC”). Not only does the SRRA impose sweeping changes to the site investigation and remediation process in New Jersey after November 3, 2009, but it also affects properties that are currently undergoing remediation with state oversight if an IEC is present.

There are three categories of IEC conditions: (1) potable water; (2) vapor intrusion; and (3) direct contact. A potable water IEC exists if (a) there is contamination associated with a discharge of hazardous substances at levels at or above the Class II Ground Water Remediation Standards in potable wells; or (b) if contamination is found in surface waters used for public water supplies above federal and state drinking water standards. A vapor intrusion IEC exists if there is a discharge of a hazardous substance that results in contaminant levels in indoor air above the Indoor Air Screening Levels (dated March 2007) contained within the NJDEP’s Vapor Intrusion Guidance (dated October 2005). The Indoor Air Screening Levels represent triggers for action to address indoor vapor contamination and contain both residential and non-residential exposure levels. A direct contact IEC exists if soil contamination is identified above the acute health effect levels in the upper two feet of the soil column and there is actual or a potential for human contact.

If at any point an IEC is discovered, the responsible party or Licensed Site Remediation Professional (“LSRP”) must immediately report the IEC condition by either phoning an assigned NJDEP case manager, or if one is not available or assigned, call the NJDEP’s Hotline (1-877-WARN DEP) and inform the operator that they are reporting an IEC condition. If the case does not have an existing case manager, the NJDEP will assign an IEC case manager. Even if the case has an assigned LSRP, the NJDEP will maintain direct oversight of the IEC condition until NJDEP approves its remediation.

Further, the new requirements impose mandatory timeframes for abating an IEC condition. Within 5 days from discovery of an IEC, the person responsible must address any receptors impacted by contamination from the site by implementing interim response actions such as providing bottled water to areas where the potable water supply is affected, change indoor ventilation and seal cracks or sumps if there is vapor intrusion, and construct site fencing or restrict access for a direct contact IEC. In addition, within 5 days from IEC discovery the following must be submitted to the NJDEP: (1) an IEC Response Action Form; (2) a completed IEC Information Spreadsheet; (3) a map identifying the location of the site and IEC condition; and (4) all analytical results with a full laboratory deliverable.

Sixty (60) days after discovery of the IEC, the person responsible for conducting the remediation must concurrently delineate its extent and implement an engineered system to remediate the IEC. The person responsible must submit an IEC engineered system response action report with an updated IEC Response Action Form to the NJDEP within 120 days from discovery. Thereafter, within 270 days after identifying the IEC, the person responsible must have completed a focused remedial investigation of the IEC contaminant source, begun source control by reducing the contaminants causing the IEC, and submit to NJDEP an IEC contamination source control report with an updated Response Action Form. The goal of source control is to eliminate the cause of the IEC condition to protect human health. The nature of the tasks for each of these requirements depends on the type of the IEC.

Please note that an IEC must be addressed in specific conformance with the requirements found in the Technical Requirements for Site Remediation at N.J.A.C. 7:26E-1.14 and applicable guidance. The guidance is still in draft form and can be found at http://www.nj.gov/dep/srp/guidance/srra/draft_iec_guidance.pdf. Generally, the regulations identify receptor control and source control as the two key components to abate an IEC condition. In other words, the person responsible must stop the ongoing exposure posing a human health threat and remediate any contamination sources associated with the IEC. Both these measures have specific timeframes for compliance, notification, remedial action, and reporting requirements some of which are outlined above. Failure to follow the requirements may lead to a $20,000 penalty.

It is not clear under the Technical Requirements for Site Remediation and guidance how an IEC will be closed. However, according to NJDEP, if an IEC is part of a case with a Licensed Site Remediation Professional, the IEC will be closed upon issuance of a Response Action Outcome by the LSRP provided that the NJDEP approved the final IEC report. If the IEC is part of an older case with an assigned case manager, the IEC will be closed upon issuance of a No Further Action letter for the site or specific area of concern that was the source of the IEC.

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On November 4, 2009, the New Jersey Department of Environmental Protection (“DEP”) issued regulations for the new site remediation requirements under the Site Remediation Reform Act. One of the most significant requirements of the new law is that all new cleanup cases are required to be competed through the use of a Licensed Site Remediation Professional (“LSRP”). The LSRP essentially acts in the place of the DEP to ensure that a cleanup meets all applicable remediation requirements. Once the LSRP is satisfied that the cleanup is completed, the LSRP will issue a Response Action Outcome (“RAO”) letter for the cleanup. The RAO is the equivalent of a DEP-issued No Further Action letter – it is the document which formally closes a cleanup case.

Working with its LSRP John Brennan (from Brennan Environmental, Inc.), Cole Schotz was able to obtain one of the first RAOs issued under the new cleanup law. As an ISRA-subject tenant, our Client was obligated to complete the ISRA investigation and cleanup requirements before purchasing the property from its landlord. To allow closing to occur before the ISRA case was completed, Cole Schotz facilitated the filing of a Remediation Certification, which permitted the closing to proceed before the ISRA case was completed. Three weeks later, after working closely with Cole Schotz, Brennan issued his RAO and thereby closed our Client’s ISRA case.

Because the LSRP requirements are new, it is critical that your professionals (attorneys and consultants) work closely together to make sure the cleanup progresses smoothly under the new rules.
 

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The Administrative Requirements For Remediation Of Contaminated Sites (“ARRCS”) were promulgated on November 4, 2009. These interim rules were issued pursuant to the Site Remediation Reform Act (“SRRA”) that was passed on May 7, 2009, which changes the way investigation and cleanups are conducted in New Jersey. These interim regulations include significant modifications to the New Jersey Department of Environmental Protection (“NJDEP”) Oversight Rules (replaced by ARRCS), and the Technical Requirements for Site Remediation (“Tech Regs”) that immediately impact existing and new cases.

These newly minted requirements apply to parties who are conducting environmental cleanups, sellers, buyers, and environmental consultants performing investigations and cleanups. The objective of the new program is to ease the burden of the NJDEP staff and case backlog by creating a Licensed Site Remediation Professional (“LSRP”) program. The LSRPs are environmental consultants with specified education and experience certified by NJDEP to perform investigations and remediation at sites in New Jersey. The new program requires the LSRP to make the decisions concerning the scope of any investigation and remediation of a site, not the NJDEP. Further, any submissions concerning the remediation of a contaminated site must be signed and certified by both the person responsible for conducting the remediation and the LSRP. In lieu of the NJDEP issuing a typical No Further Action Letter (“NFA”), LSRPs will issue a Response Action Outcome (“RAO”) certifying that the investigation and cleanup of the site was completed in accordance with the Tech Regs. However, please note that the NJDEP has a three year period in which it can “audit” the LSRP’s work, if not more, depending on the circumstances.

Contrary to previous indications by NJDEP, Irene Kropp, NJDEP Assistant Commissioner for Site Remediation, recently indicated the NJDEP will approve the vast majority of existing cases if they elect to “opt-in” to the LSRP program. The new program is designed to streamline NJDEP’s review of environmental reports by taking the majority of the work out of its hands and into the hands of the LSRPs.

If a party conducting a cleanup has reported the contamination to the NJDEP prior to November 4, 2009 and have “continuously” conducted the remediation since that notification, they will be deemed to be an existing case. If so, they may wait until May 2012 to utilize an LSRP. However, if a person initiates remediation on or after November 4, 2009, they have no choice but to hire an LSRP to conduct a cleanup of a site without prior NJDEP approval.

Highlights of New LSRP Program:

• In addition to NJDEP oversight fees being charged, there are new remediation fees that will be assessed depending on the number of areas of concern identified at a site and the type of media impacted (soil v. groundwater).
• There are numerous guidance documents and forms being created by the NJDEP associated with implementation of ARRCS and the modified Tech Regs. Although the majority of these forms have yet to be finalized, NJDEP is actively uploading them to their website (www.nj.gov/dep/srp/srra/).
• NJDEP has established mandatory timeframes for the completion of key phases of site remediation.
• Restricted use cleanups will be governed by presumptive remedies outlined by NJDEP at residential properties, daycare facilities and schools.
• Remedial action permits will be required for all restricted use remedies utilized in site cleanups.
• Responsible parties will also be required to establish a remediation funding source for the majority of cases, which would not have otherwise been required to establish such a funding source.
   

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The New Jersey Department of Environmental Protection (“NJDEP”) passed its Notification and Public Outreach Rule, N.J.A.C. 7:26E-1.4 et seq., in September of 2008. This regulation requires parties responsible for remediating sites to notify the public of ongoing remedial investigation and remedial action at sites in New Jersey. Although the regulation was adopted on September 2, 2008, the NJDEP provided a one (1) year grace period to parties responsible for cleanups that were ongoing at that time. Therefore, the deadline for compliance is September 2, 2009.

The regulations require that the party responsible for the cleanup identify sensitive populations and resources within 200 feet of the site and notify the public regarding the cleanup. In order to identify sensitive populations and resources, which are defined in the regulations to include residences, schools, day care centers, potable wells and other similar types of facilities, environmental consultants will need to complete a “sensitive populations and resources” checklist. Once the sensitive populations and resources are identified, the consultant must generate a scaled map indicating the location of those sensitive populations and resources on the map. This information must be submitted to both the NJDEP and local agencies as required by the regulation.

As to the public notification requirements, the responsible party has two (2) options: 1) post a sign at the site, or 2) send letters to each owner of real property, as shown on the current tax map, and tenants of those properties located within 200 feet of the site boundary. The letters and sign are designed to alert the public of the ongoing cleanup at the site. The legislative goal is to promote faster cleanups while at the same time furthering the state’s economic well being and development by improving the state’s business climate. The NJDEP justifies this process by stating the public requires complete information in order to properly understand risk and avoid speculation and undue concern and order their activities accordingly.

The notification letters must include the name of the responsible party, address, tax block and lot, NJDEP ID number, brief description of the type of contaminant and actions being taken, contact information and a statement indicating the municipality may request that the person conducting the remediation provide copies of all environmental reports. If a sign is chosen as the notification method, the sign must be 2 feet x 3 feet in size containing the phrase “Environmental Investigation/ Cleanup In Progress at this Site,” contact information and a “posted-on” date. The sign must be readily visible to the public and remain until a No Further Action Letter is issued for the Site. As confirmation of compliance, a photograph of the sign and a letter, similar to the neighbor notification letter, must be sent to the NJDEP, Municipal Clerk and Health Officer.

In the event contamination is migrating off-site, in addition to the notification requirements discussed above, so called “Enhanced Public Outreach” is required. Enhanced Public Outreach entails the preparation of a fact sheet that must be distributed to owners and tenants within 200 feet of the site boundary, as well as published in a local paper. The fact sheet must include a brief industrial history of the site, a complete description of contamination, actions being taken, contact information and the date the fact sheet was prepared.

In reality, these public notification requirements will likely cause more delays and possibly litigation, but we have not yet seen any adverse impact. Regardless of its potential consequences, decisions must be made very quickly as to which type of notification will be made prior to the upcoming September 2, 2009 deadline.
 

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On May 7, 2009, Governor Jon Corzine signed into law the Site Remediation Reform Act (the “Law”) that will overhaul the way investigations and cleanups are done in New Jersey. The Governor concurrently signed Executive Order #140 that clarifies certain provisions to the Law (http://www.state.nj.us/infobank/circular/eojsc140.htm). The Law addresses the overburdened New Jersey Department of Environmental Protection (“DEP”)’s current staff, budget constraints and case backlog by creating a Licensed Site Remediation Professional (“LSRP”) program. The LSRPs are environmental consultants with specified education and experience who perform investigations and remediation at sites in New Jersey. The legislation, sponsored by Senator Bob Smith, was passed by the New Jersey Senate on March 16, 2009. 

The Law identifies who may become LSRPs, establishes their qualifications, licensing procedures, and a code of conduct and defines their role in the remediation process. In addition, the Law establishes a separate Site Remediation Professional Licensing Board (“Board”), tasked with creating standards for education, training and experience that will be required of any person who applies for a license or a license renewal. The Board conducts examinations to certify that an applicant possesses sufficient knowledge of the state regulations, standards and requirements applicable to site remediation and the applicant is qualified to obtain a license or a license renewal.

The Law calls for rules and regulations to be adopted no later than 18 months after enactment to implement the LSRP program. However, since it will take some time for this Law to be fully developed and implemented, the Law calls for an interim licensing program to be established within 90 days of enactment. Those seeking a temporary LSRP license must have the same qualifications as a full LSRP, as well as one of several professional certifications (i.e., certified hazardous materials manager from the Institute of Hazardous Materials Management, a certified groundwater professional from the National Groundwater Association, a licensed professional engineer from the National Council of Examiners for Engineers). Further, an applicant for a temporary LSRP license must show that they have existing current site remediation experience.

Within 180 days of the effective date of the Law, any submissions concerning the remediation of a contaminated site must be signed and certified by both the person responsible for conducting the remediation and the LSRP. The LSRP’s certification will state that the work was performed, that the LSRP managed, supervised or performed the work and that the work and submission conform to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E 1 et seq. Remediation projects that are on-going or that begin within 180 days of enactment of the Law are not required to be conducted by an LSRP. However, all remediation projects will need to be conducted by an LSRP after the third anniversary of enactment of the Law.

The level of coordination between the LSRP and the DEP depends on various factors, such as the history of compliance, the contamination present, natural resources impacted and the ranking of the individual site. The more complex the site, the higher the degree of involvement DEP will have with the LSRP. However, it is unclear as to the timing of DEP’s decision to retain jurisdiction or delegate it to the LSRP. Pursuant to Executive Order #140, by July 6, 2009, DEP shall develop guidelines to address this concern.

The Law is designed to streamline the DEP’s review of environmental reports, so that transactions are not delayed due to the lack of responsiveness from the DEP. We shall see whether New Jersey can join states like Connecticut and Massachusetts, which run effective LSRP programs.
 

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On June 5, 2008, new legislation was introduced to address the overburdened New Jersey Department of Environmental Protection (“DEP”)’s current staff and budget constraints by expediting its report review process. Introduction of the Bill, sponsored by Senator Bob Smith, followed hearings before the State Senate Environment Committee and Assembly Environment and Solid Waste Committee at which the DEP recommended many of the proposed reforms set out in the Bill. An updated version of the Bill was issued on January 26, 2009, which was considered by the State Senate Environment Committee on February 2, 2009. The Bill proposes changes to the DEP Site Remediation Program that include the creation of a Licensed Site Professional (“LSP”) program. The LSPs are environmental consultants with specified education and experience who perform investigations and remediation at sites in New Jersey.

The Bill identifies who may become LSPs, establishes their qualifications, licensing procedures, a code of conduct and defines their role in the remediation process. In addition, the Bill establishes a separate Site Remediation Professional Licensing Board (“Board”), which is tasked with creating standards for education, training and experience that will be required of any person who applies for a license or a license renewal. The Board conducts examinations to certify that an applicant possesses sufficient knowledge of the state regulations, standards and requirements applicable to site remediation and the applicant is qualified to obtain a license or a license renewal. 

Since it will take some time for this legislation to be fully developed and implemented, after enactment of the Bill, it will provide for temporary licensing of LSPs . The Bill anticipates the applications for temporary LSP licenses will be submitted to the DEP within three (3) months of its effective date. Those seeking a temporary LSP license must have the same qualifications as a full LSP, as well as one of several professional certifications (i.e., certified hazardous materials manager from the Institute of Hazardous Materials Management, a certified groundwater professional from the National Groundwater Association, a licensed professional engineer from the National Council of Examiners for Engineers). Further, an applicant for a temporary LSP license must show that they have existing current site remediation experience. 

Within ninety (90) days of the effective date of the Bill, any submissions concerning the remediation of a contaminated site must be signed and certified by an LSP. The LSP certification required under the Bill will state that the work was performed, that the LSP managed, supervised or performed the work and that the work and submission conform to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E-1 et seq. 

The level of coordination between the LSP and the DEP depends on the ranking of the individual site. The Bill establishes a 4-tier classification system for remediation sites. 

Tier-1: A responsible party has been recalcitrant and has failed to complete the remedial investigation after an extended period of time. DEP would review and approve/disapprove all LSP submissions and select the remedial action. Financial assurance would be required in the form of a trust fund, with DEP to pre-approve any payments out of the trust fund.  

Tier-2: High priority sites for economic development; or within brownfield development areas (commercial or industrial sites that are vacant or underutilized and contaminated) or other economic development priority areas; or posing significant detrimental impact on the public or the environment; or effecting sensitive populations such as child care or school facilities; or subject of federal oversight. DEP would review and approve/disapprove all LSP submissions. 

Tier-3: Sites that are not Tier-1, Tier-2 or Tier-4 sites. DEP would review screening documents and certifications submitted by the LSP. 

Tier-4: Leaking unregulated heating oil tanks provided there are no immediate concerns such as impact on drinking water wells or vapor intrusion risks. DEP would review required checklists and certifications.

As Tier-1, Tier-2 and Tier-3 sites are more complex, they require the involvement of LSPs, while a Tier-4 site could also be managed by a person certified to perform services at a site of an underground storage tank such as a subsurface evaluator. However, any responsible party would be allowed to submit a Preliminary Assessment/Site Investigation for sites where a no further action letter is sought from DEP based on a showing that no contamination above prevailing standards exists. 

The proposed Bill is designed to streamline the DEP’s review of environmental reports, so that transactions are not delayed due to the lack of responsiveness from the DEP. We shall see whether New Jersey can join states like Connecticut and Massachusetts, where effective LSP programs are run. 

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