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

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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In the Matter of Crompton Colors, Inc., No. A 0778 09T1 (App. Div. 10/27/11), the NJ Appellate Division ruled that a property owner is entitled to have an administrative hearing regarding the rescission of a no further action letter (“NFA Letter”) by the DEP.  In this case, a subsidiary of Hartz Mountain Industries, a former landlord of an industrial tenant named Crompton Colors, Inc., appealed DEP’s rescission of an NFA Letter issued in 2002 and the denial of its request for a hearing to contest the decision. 

Hartz purchased the property located in Bloomfield, NJ in 1965 and leased to Peerless Bindery.  The property consisted of a warehouse and an office building.  In 1990, the buildings were demolished and a 10,000 gallon heating oil underground storage tank was removed.  According to the Report submitted by Hartz to DEP, petroleum product was encountered in the soil and floating on the groundwater.  The impacted soil was subsequently excavated and the floating oil was removed.  Although groundwater monitoring wells initially did not detect any contamination, a second round of sampling revealed slight exceedences for petroleum constituents.  At that point, additional soil was removed from this area and residual petroleum in fill material was left in place and covered with the newly constructed warehouse concrete slab.

The property was subdivided into two lots in 1991.  One lot was occupied by the new warehouse that was leased by a predecessor of Crompton Colors and the second lot was leased to a daycare center.  A Remedial Action Work Plan was submitted to DEP in January of 1996, which was found by DEP to be unacceptable.  Hartz then submitted a Remedial Investigation Report that discussed the results of the supplemental soil and groundwater sampling, which showed elevated levels of semi volatile organic compounds that are typical of urban fill material.  As the contamination was detected in an area that is located up-gradient from the former tank, the report concluded that the contaminants were unrelated to the tank.  The DEP issued an NFA Letter with respect to the former tank but required further investigation to confirm that the source of the contamination was from an off site source.  Hartz did not implement the requested additional investigation.  The environmental documents referenced the street address as 60 West Street, which represented the original address of the undivided property.  However, after the property had been subdivided, the warehouse facility was known as 50 West Street.

In 2001, the Industrial Site Recovery Act (“ISRA”) was triggered when Crompton Colors ceased operations at the warehouse.  Crompton Colors filed the appropriate paperwork using the 50 West Street address relying on the prior tank NFA letter.  However, DEP responded that the site known as 50 West Street was not eligible for an expedited review because it had not been previously issued an NFA Letter.  Crompton Colors then prepared and submitted a Preliminary Assessment, along with revised paperwork with the correct lot number requesting DEP issue an NFA.  Crompton Colors did not disclose, however, the presence of soil and groundwater contamination that had been identified in the 1996 NFA Letter.  In 2002, DEP issued the NFA Letter for the Crompton Colors’ ISRA case.

In 2004, DEP was under pressure to re-evaluate closed cases in response to a situation where a daycare facility began operating at a former thermometer manufacturing facility where significant mercury contamination was discovered.  As a result of this incident, DEP mapped all known childcare centers and schools within a 500 foot radius of contaminated sites and re-examined all open and closed DEP cases within the radius to determine whether any of these properties could adversely impact the childcare facilities.  As a result of the childcare center being located at the Bloomfield property, DEP reviewed the 2002 NFA determination and concluded that the contamination not addressed by Hartz in 1996 was located at 50 West Street.  Therefore, DEP rescinded the NFA Letter issued in 2002 and directed Hartz and Crompton’s successor, Chemtura, to investigate potential vapor intrusion concerns at the childcare center.

Hartz argued that DEP did not have the basis to reopen the case or the authority to require a vapor intrusion study and requested an administrative hearing.  DEP rejected the claims that the contamination was from an off site source as they concluded that the nearest potential off site source was more than a ½ mile away in a down-gradient location.  The DEP also denied the request for a hearing, stating that DEP was merely requesting Hartz to submit documentation and perform studies Hartz should have done as part of its original application in 2002. 

The Appellate Division stated that the revocation of the NFA was a rescission of the permission DEP provided Hartz in 2002 to convey the property free and clear of any remedial obligations under ISRA.  The Court found that the directives to perform environmental studies fell in the purview of N.J.S.A. 13:1K 13.1b, which expressly provides that DEP is required to give a recipient of an order requiring abatement of a violation notice of its rights to a hearing.  Although Hartz will now be afforded the opportunity to participate in an administrative hearing, it must present evidence that challenges DEP’s conclusion that the contamination that triggered the “reopener” is not from an off site source.  As the DEP is typically given significant discretion over technical determinations, Hartz will be hard pressed to show DEP acted in an arbitrary and capricious manner and have DEP’s decision over turned.

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The final installment of this three part series describes what employers should expect after an OSHA inspection as well as the employers’ rights.

1.  What happens after OSHA completes its inspection?

Unless your establishment is in full compliance with OSHA’s standards, you will receive a “Citation and Notification of Penalty” from OSHA.  Generally, OSHA has up to six months after it initiates the inspection to issue a Citation.  A Citation includes: the type of violation (classification); the standard, regulation or section of the Occupational Safety and Health Act that was violated; a description of the violation; the abatement date; and the penalty. 

A. The alleged violation could fall into one of the following categories:

Willful - A willful violation is a violation in which the employer knew that a hazardous condition, which violated a standard, regulation or a section of the Occupational Safety and Health Act, existed but made no reasonable effort to eliminate it.  If the willful violation results in a death, OSHA can seek criminal sanctions against an employer.

Serious - A serious violation exists:

if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Repeat - OSHA may cite an employer for a repeated violation if:

(A) the employer has been cited previously for a substantially similarviolation;

(B) the previous citation containing the substantially similar violation has become final order of the Occupational Safety and Health Review Commission; and

(C) the current violation occurred within 5 years from the date that the earlier citation became final order or from the final abatement date, whichever is later.

Other-Than-Serious - An other than serious violation exists where an accident or illness that could occur from a violation “would probably not cause death or serious physical harm but would have a direct and immediate relationship on the safety and health of employees.”

De Minimis – A de minimis violation is a “violation of a standard that has no direct or immediate relationship to safety and health.”

In addition, an employer can also be cited for failure to correct a previously cited condition.  The Occupational Safety and Health Act allows OSHA to assess penalties for each day a violation continues past the final abatement date.

B. Section of OSHA Standard Violated and Description of the Violation

The citation must also describe the violation and section of OSHA’s standard that was violated.

C. Abatement Date

The abatement date is the date by which the violation must be corrected.  The abatement period is “the shortest interval within which the employer can reasonably be expected to correct the violation.”  Abatement dates are usually discussed at the closing conference.  In determining the abatement date the inspector generally considers the following factors:

(a) The seriousness of the alleged violation;

(b) the equipment, material and/or personnel needed to correct the alleged violation and their availability;

(c) the time period to obtain the necessary material for correcting the violation;

(d) the time period to construct or install the abatement equipment; and

(e) the time period to train personnel.

If an employer is unable to meet an abatement date because of some uncontrollable circumstance, the employer can petition the OSHA Area Director to modify the abatement date contained in the Citation.

D. Penalty

The Citation also sets forth the penalty assessed by OSHA.  OSHA is authorized to assess the following civil penalties: $70,000 for each willful or repeated violation; $7,000 for each serious or other than serious violation; $7,000 for each violation of the posting requirement; and $7,000 per day beyond a stated abatement date for failure to correct a violation.

Penalties are calculated once a violation is classified.  In calculating penalties OSHA takes into account the following factors:  the seriousness of the violation; the number of employees employed by the employer; the employer’s good faith as demonstrated by the employer’s efforts to comply with the Occupational Safety and Health Act and OSHA’s standards and regulations; and the employer’s past history of compliance.  OSHA can, at its discretion, reduce the maximum penalty that it will impose after considering these factors.

2. If OSHA issues citations to my company, what should I do?

Once you receive a Citation, you must post the Citation at or near the place where each violation occurred so that it will be conspicuous to employees.  The purpose of this is to make employees aware of the hazards to which they may be exposed.  The Citation must remain posted for three (3) working days or until the violation is corrected, whichever is longer.  You are required to comply with these posting requirements even if you subsequently decide to contest the Citation.

You have two choices once you receive a Citation.  The first option is you can comply with the Citation.  That is, you can correct the alleged violations by the date specified in the Citation and pay any penalty that may have been assessed.  If you do not contest the Citation, the Citation will become a final order in fifteen (15) working days after receiving the Citation.  Once the Citation is a final order, it will be binding and not subject to review by any court or agency.

The second option available to you is to contest the Citation.  You have fifteen (15) working days from the date of receipt of the Citation to contest the Citation.

However, before you decide which course to take, you should take advantage of an OSHA process known as the Informal Conference.  You must request and schedule the Informal Conference with the OSHA Area Office that issued the Citation within the fifteen (15) working day contest period.

If you cannot reach a settlement agreement with OSHA at the informal conference, you may wish to contest the Citation.  Generally, a notice of intent to contest all or any portion of the Citation must be submitted in writing to the OSHA Area Office that issued the Citation within fifteen (15) working days after the receipt of the Citation.

3. Should I challenge the OSHA citations?

There is no universal formula to assess whether you should challenge the OSHA Citation.  The decision must be made in good faith and based on the facts, which include consideration of alleged violation, its impact on employee health and safety, the classification of the violation, the method of abatement and the cost involved in abating the alleged violation.

4. If I do challenge an OSHA citation, what should I expect?

Once you file a notice of contest, jurisdiction over the matter vests with the Occupational Safety and Health Review Commission (the “Commission”).  The Commission, sometimes called “OSHRC,” is an independent agency not connected in any way with OSHA.  Its primary purpose is to decide contested cases arising from Citations issued by OSHA.  It does not perform investigations or promulgate standards.

Once the Notice of Contest is filed with the OSHA Area Office that issued the Citation, the OSHA Area Director will forward a copy of the Notice of Contest to the Commission.  The Commission will appoint an Administrative Law Judge who will preside over the hearing and render a decision, which can be appealed by the employer or OSHA.

5. How can I clear my company’s record from any citations issued by OSHA?

There is no method to clear your company’s record of past Citations issued by OSHA.  However, the longer your company operates without OSHA Citations the better.  OSHA can use past Citations as a basis to issue Citations that have a more severe classification with increased penalties.  For instance, if OSHA re inspects your company in the future, it can issue repeated violations for conditions that were violated during the original inspection.

6. Can OSHA re-inspect my facility?  If so, is there any action that I can take to prevent OSHA from inspecting my facility in the future?

Yes, OSHA can re-inspect your facility.  You cannot prevent OSHA from re inspecting your facility in the future, but you can minimize the chances of that occurring by being proactive.  By establishing safety and health programs that incorporate coordination and communication of safety and health issues among personnel; means for planning and implementing needed training and job orientation for employees; and means for identifying and controlling workplace hazardous and monitoring the effectiveness of such program, you can minimize workplace hazards and thus, reduce the chances of OSHA re-inspecting your facility.  In certain situations you may want to utilize the services of a safety and health consultant to assess your workplace and make recommendations to better comply with OSHA’s standards.  Your lawyer can assist you with deciding whether to retain a consultant to evaluate your workplace.

7. If OSHA re-inspects my facility, should I expect the same result as the initial inspection?

The answer to this question is dependent on your company’s response to the initial inspection and your company’s commitment to health and safety.  Only by being proactive and implementing programs that protect employees can you reduce the possibility of future OSHA enforcement actions.

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This article, the second of a three part series, focuses on OSHA’s procedures during an inspection and outlines what employers should and should not do during an inspection.

1. What should I do or not do during an inspection?

There are certain actions that you should take to protect your interest during an OSHA inspection.  These actions include:

(a)     Check the inspector’s identification to ensure he/she is who he/she says he/she is.

(b)     Ascertain from the inspector the reason for the inspection.  If the inspection is the result of a complaint, you should request a copy of the complaint.

(c)     Have someone from management escort the inspector through the entire inspection process i.e., from opening to closing conference.

(d)     Document the inspector’s activities i.e, areas inspected, interviews, measurements taken, etc..

(e)     If the inspector performs any monitoring i.e., noise or air monitoring, you should consider performing similar monitoring at the same time.  The purpose of the “side by side” monitoring will allow you to document and confirm the results obtained by OSHA.

(f)      Request the results of all monitoring performed by the inspector.

(g)     At the closing conference, if the inspector indicates that violations have been found, determine why certain conditions constitute a violation.  In addition, you should request from the inspector recommended methods to correct any alleged violations.

(h)     Consult your attorney at the time an OSHA inspection is initiated and if at any time you are unsure how to respond to a certain requests made by the inspector.

The following is a list of “don’ts”:

(a)     You should not forcibly interfere with the conduct of an inspection.

(b)     You should not discriminate against or punish any employee who cooperates with OSHA or who may exercise his or her rights under the Occupational Safety and Health Act.

(c)     You should not provide the compliance officer with false or misleading information.  Providing false information to OSHA is punishable as a crime under the Occupational Safety and Health Act.

(d)     You should not argue with or antagonize an inspector during an inspection.

2. How long will OSHA be at my facility?

OSHA will remain at your facility until it completes its investigation.  The inspection could last a couple of hours or up to several months.  The length of time is determined by the scope of the inspection i.e., whether it is confined to one area or the entire facility.  It is also dependent on the type of inspection.  That is, whether the inspector will be required to make subsequent visits to the facility to perform monitoring to establish employee exposure to workplace contaminants or noise.

3. Do I have to let my employees talk to the OSHA inspector?

OSHA inspectors are authorized to use various investigatory techniques, such as observing employees’ activities in the workplace, conducting employee interviews, and taking photographs and measurements in the workplace (i.e., air and noise monitoring).

The Occupational Safety and Health Act authorizes OSHA to interview employees privately to obtain whatever information is necessary or useful for the inspector to perform his or her inspection effectively.  The interviews, however, must be conducted in a reasonable manner and within a reasonable time limit.  If they appear to be unreasonable, you should consult your attorney.  On occasions, interviews may be conducted at locations other than the workplace (e.g., employee’s house or OSHA Area office).  OSHA’s regulations afford any employee the right to bring any alleged violation to the attention of the inspector.

OSHA inspectors are also authorized to take photographs or videos whenever such are deemed necessary.  Generally, an employer cannot prohibit an inspector from taking photographs or videos because a certain process or equipment is a trade secret.  To protect a trade secret, you should inform the inspector of the process or equipment that is proprietary.  Once informed of trade secret status, the inspector is obligated to treat the information obtained from the inspection in a manner assuring confidentiality.

In order for OSHA to document employee exposure to chemical or physical hazards, it is often necessary for the inspector to perform monitoring.  Typically, during the walkthrough phase of the inspection the inspector will identify certain areas where monitoring must be performed.  The inspector may then return on another day to perform the monitoring, which may last for the full term of the work shift.

Monitoring employees for chemical and/or physical hazards usually consists of placing monitoring devices such as air samplers or noise dosimeters on the employees.  The employer may not object to such investigatory procedures.  Once the monitoring devices are placed on the employees, the inspector will observe the employees throughout the day and document their work practices, use of personal protective equipment and other relevant information.

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A significant number of businesses are likely to find themselves face-to-face with an inspector from OSHA, and many will be caught off guard.  We recommend that businesses take a two-pronged approach to OSHA compliance.

First, make every effort to comply with OSHA’s safety and health rules to protect your employees.  Second, be prepared in the event OSHA initiates an inspection at your establishment.  If you have a plan in place that provides guidance to your managers, describe the procedures employed by OSHA and what to expect during an inspection, you can minimize disruption of your business and possibly adverse consequences.

This is a three-part series to assist employers and familiarize them with OSHA and its procedures.  Part One will focus on OSHA’s function, who is subject to OSHA’s requirements and what OSHA looks for during an inspection.

Part Two describes an actual step-by-step inspection and outlines suggested procedures for employers to follow.  The third and final part describes what an employer should expect following an inspection and the employers’ rights and obligations.

1. What is OSHA and what does it do?

OSHA or the Occupational Safety and Health Administration, is an agency within the United States Department of Labor.  OSHA’s primary function to protect employees by inspecting workplaces to ensure that employers comply with the safety and health standards promulgated by OSHA. 

2. Who is subject to OSHA’s requirements?

Most private sector employers and their employees are subject to OSHA’s requirements.  Employees employed by state and local governments are not covered by OSHA.  Likewise, certain private sector workers are exempt from OSHA’s requirements.  Specifically excluded are self employed individuals, farm workers where only immediate members of the farm employer’s family are employed and workers at facilities where safety and health is regulated by other federal agencies under separate federal statutes.

3. If OSHA shows up at my facility, do I have to allow the inspector in my facility?

In most cases, OSHA must either obtain your consent or a valid warrant authorizing an inspection before entering your facility to perform an inspection.  The inspector who arrives at your workplace, may not inform you of your rights.

If denied entry to perform an inspection without a warrant, OSHA has the authority to obtain a warrant by ex parte application to the United States District Court (i.e., OSHA will ask the court to issue a warrant to allow the inspection).  If OSHA seeks a warrant, you will not receive advance notice that OSHA is seeking a warrant or receive copies of any materials supplied to the court by OSHA in applying for the warrant. 

The decision regarding whether to allow OSHA to inspect your facility is not always clear cut.  We recommend that you discuss your options with your lawyer and have a plan in place should an OSHA inspector show up.  That plan should be made as a matter of company policy developed prior to the actual inspection.  Your managers and key employees should be familiar with the plan and who to contact should they have questions.

4. What does OSHA look for?

There are three phases to an OSHA inspection, the opening conference, the walkthrough and the closing conference.

At the opening conference, the inspector will seek general information concerning your business (e.g., name, address, etc.) as well as your safety and health program.  For instance, the inspector may inquire into the following:

• The details of your company’s safety and health program;
• How information on your company’s safety and health program is communicated to employees;
• How your company enforces violations of its safety and health rules;
• The type of safety and health training programs that your company has established and how they are implemented;
• How your company performs an accident investigation and whether your company implements preventative measures as a result of the investigation; and
• Whether the OSHA Notice is posted on site in your facility.

In addition, the inspector will request access to the records that you are required to maintain under the OSHA’s standards (e.g., injury and illness records and Hazard Communication Records, etc.).

The next phase of the OSHA inspections is the walkthrough.  The main purpose of the walk-through is to allow the inspector to identify potential safety and/or health hazards in the workplace.  You and the employee representative will be given the opportunity to accompany the inspector.

During this phase of the inspection the inspector will assess your safety and health program, collect information on your business and document any hazards found in the workplace.

The final phase of the OSHA inspection is the closing conference.  The inspector is required to have a closing conference with you and the employee representative.  At the closing conference the inspector is required to describe any and all alleged violations that were observed during the inspection and identify the applicable sections of the OSHA standards or Occupational Safety and Health Act that were allegedly violated.  The violations that are found by the inspector will be outlined in a Citation.  Citations are not issued at the closing conference, but are issued at a later date under the signature of the Area Director.  In addition, the inspector is required to advise you and the employee representative of your rights following an OSHA inspection.

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This article is a follow-up to our prior post of July 31, 2009 dealing with this issue.  As you may know, the New Jersey Department of Environmental Protection (“NJDEP”) enacted a notification and public outreach rule, N.J.A.C. 7:26E-1.4 et seq., in September of 2008.  The regulation requires responsible parties who are conducting an environmental investigation or remediation at contaminated sites to provide various public notifications and outreach activities.  In general, the notification letters contain 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.  The regulation provided that most of these notifications had to be completed prior to September 2, 2009. 

As the cases have progressed and the new Licensed Site Remediation Professional Program has been implemented, responsible parties may have been distracted from the details of this public notification rule.  Specifically, the public notification and outreach requirements are continual.  If a responsible party chose to comply with its public notification requirements by sending letters to owners and operators of property within 200 feet of the site boundary instead of posting a sign, updated notification letters detailing the current condition and progress of their remediation must be sent every 2 years until all the required remediation is completed and the final remediation document is filed or issued (No Further Action Letter or Response Action Outcome).  Therefore, if you sent out public notification letters prior to the former September 2, 2009 deadline and your cleanup is not yet complete, you must issue updated public notification letters prior to September 2, 2011.  Two years ago, we were skeptical as to the reaction the public would have to these notification letters, but for the most part, the reaction has not been significant or problematic.

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A federal District Court in New Jersey recently ruled that the New Jersey Department of Environmental Protection (“NJDEP”) waived its rights to pursue Natural Resource Damages (“NRDs”) as a result of a letter sent to the defendant indicating that NJDEP did not intend to pursue the defendant for NRDs. FMC Corp. v. American Cyanamid, No. 01-0476 (D.N.J. 9/29/10). FMC involved a site in Franklin Township, New Jersey (the “Site”), which was placed on the federal Superfund National Priorities List in 1990. FMC Corp. (“FMC”) and the United States initiated settlement negotiations in 1997 regarding environmental remediation of the Site. During negotiations, FMC, in order to determine the extent of its liability at the Site for the environmental contamination, contacted the New Jersey Attorney General’s Office. Subsequently, the Deputy Attorney General for the State wrote to FMC in 2003 setting forth the costs the State intended to pursue for the Site. The letter also attached a memorandum from the NJDEP’s Office of Natural Resource Restoration indicating that the State would not pursue FMC for NRDs.

The State’s decision not to pursue FMC for NRDs was based on NJDEP’s policy adopted in the late 1990s that excluded on-site groundwater contamination from the assessment of NRDs in instances where there was no off-site groundwater contamination and where no other natural resources were impacted by the discharge of hazardous substances. This policy was in effect when the Deputy Attorney General wrote to FMC informing FMC that the State would not pursue FMC for NRDs.

The NJDEP subsequently revised its policy, and in 2006 filed suit against FMC seeking NRDs. FMC moved for summary judgment based on the fact that NJDEP waived its right to pursue FMC for NRDs at the Site citing the 2003 letter from the Deputy Attorney General. NJDEP cross moved to strike the affirmative defense of waiver plead by FMC arguing that its letter did not amount to a waiver. NJDEP also argued that even if a waiver had been made, “the doctrine of waiver should not be applied under the circumstances because a government agency may change policies for the benefit of the public without creating rights in parties who claim to have relied on the old policy.”

The Court agreed with FMC. While acknowledging that questions of waiver are usually questions of intent, which are factual determinations, the Court determined that there was no real question that NJDEP did not intend to pursue FMC for NRDs. The Court further noted that at the time the State wrote to FMC indicating that it would not pursue FMC for NRDs, it did not state that such a determination was subject to change in policy within NJDEP. Accordingly, the Court found that the State expressly waived its right to seek NRDs against FMC. The Court also ruled that the State could not waive its right to assess NRDs against FMC s and then later reverse its decision.

The obvious lesson from this case is that when obtaining a determination from an administrative agency, it is critical that the terms be spelled out in writing. Having the determination in writing may be your only defense in the future to protect you from an agency’s decision to reverse its determination. Although an agency may argue that it has the right to reverse its policies, as NJDEP argued in FMC, the Court may decline to uphold such a reversal.

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In October, the New Jersey Department of Environmental Protection (“DEP”) proposed several amendments to two of its site remediation regulations, the Administrative Requirements for the Remediation of Contaminated Sites (the “ARRCs”) (N.J.A.C. 7:26C) and the Technical Requirements for Site Remediation (N.J.A.C. 7:26E).

There are three primary components to the proposed amendments. The first is to extend the Mandatory and Regulatory Timeframes established under the ARRCs, the second is to clarify the definition of a vapor intrusion immediate environmental concern (“IEC”), and the third addresses timing for receptor evaluation reporting. The proposed rule changes are subject to a 60-day public comment period that expires on December 3, 2010.

Mandatory and Regulatory Timeframes

In revamping the DEP’s site remediation program through its enactment of the Site Remediation Reform Act (see January 6, 2010 post), the legislature required the DEP to enact certain mandatory and regulatory remediation timeframes.  The DEP established certain mandatory and regulatory time frames in the ARRCs. The DEP required responsible parties to undertake the following actions within one year from either March 1, 2010 (for cleanups commenced before November 4, 2009) or a specified triggering event:

• submit a preliminary assessment report and site investigation report for a cleanup under the Industrial Site Recovery Act
• submit a site investigation report under the Underground Storage of Hazardous Substances Act
• submit an initial receptor evaluation
• complete the delineation of an IEC source area, initiate IEC source control and submit to DEP an IEC Source Control Report
• complete (i) the installation of a Light Non-Aqueous Phase Liquid (“LNAPL” or “free product”) recovery system, (ii) initial operation monitoring of that system and (iii) submit to DEP an interim remedial action report

The SRRA originally contained a Regulatory Timeframe for an LNAPL recovery system report to be submitted to the DEP within 270 days after free product is identified. Under the proposed Regulatory Timeframe rule change, if free product was identified before March 1, 2010, the free product recovery system report shall be submitted to DEP by March 1, 2011 (extended from 270 days to one year). If free product is identified on or after March 1, 2010, the LNAPL Recovery System Report must be submitted to DEP within one year after discovery.

Under the proposed regulatory amendment, the one-year Mandatory Timeframe deadlines will be extended to two years. If the amendment is enacted, existing cases will have until March 1, 2012 to complete these mandatory requirements. This proposed change would provide significant flexibility to responsible parties, especially given the draconian penalties from failing to meet a Mandatory Timeframe. Those penalties include having the DEP take direct oversight/control of the cleanup and penalties of up to $20,000 per day for a continuing violation.

Note that with respect to the free product requirements, the proposed Regulatory Timeframe deadline will become one year while the Mandatory Timeframe deadline will be extended to two years. The difference relates to the fact that Regulatory Timeframes can be more easily extended than Mandatory Timeframes, which are essentially “drop-dead” deadlines.

Finally, until the amendments are approved and go into effect, responsible parties need to either continue to proceed under the currently enacted deadlines (i.e., one year) or seek approval from the DEP for an extension of the deadlines.

Vapor Intrusion

Vapor intrusion concerns relate to the potential for volatile contaminants to enter building interiors and negatively impact indoor air quality. The DEP has issued guidance for addressing vapor intrusion concerns. In that guidance, DEP has set out a number of indoor air contaminant levels which it defines as “rapid action levels.” These are contaminant levels which require immediate action, including interim remedial measures. The DEP’s proposed rule amendments make clear that an exceedance of the rapid action level for an indoor air contaminant is an IEC, which triggers certain obligations under the state cleanup rules. For instance, interim remedial measures are required within fourteen days of determining that the indoor air exceeds the rapid action level, and is thus an immediate environmental concern.

Receptor Evaluation Reporting

The current rule required a Receptor Evaluation Report to be submitted to the DEP by November 26, 2010. However, the proposed rule states that if remediation was initiated before March 1, 2010, the initial Receptor Evaluation Report must be submitted by March 1, 2011. If remediation is initiated on or after March 1, 2010, the initial receptor evaluation must be submitted within one year of the initiation of remediation. Again, this proposed Regulatory Timeframe changed from 270 days to one year.

NJDEP has issued a Compliance Advisory Update which indicates that they will not take enforcement action against the person responsible for conducting the remediation if they do not meet the regulatory timeframes contained in the current rule as long as they meet the newly proposed regulatory deadlines.

For more information on the proposed amendments to the rules governing site remediation, go to http://www.nj.gov/dep/rules/proposals/100410a.pdf and for a summary of the regulatory and mandatory timeframes go to http://www.nj.gov/dep/srp/srra/training/matrix/new_responsibilities/timeframe_req.pdf.
 

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On July 16, 2010, the New Jersey Department of Environmental Protection (“NJDEP”) Commissioner, Bob Martin, published a List of Policy Priorities and a Vision Statement (see links below) in written form that will serve as a guide for the NJDEP to be more efficient and consumer friendly. The goals of these two documents are to define the strategic vision of the NJDEP for the next four years and to provide the foundation for structural changes that will make the NJDEP an effective organization in the future. For persons who are involved in the investigation or remediation of contaminated sites in New Jersey, they are familiar with the NJDEP’s administrative processes, which sometimes can be unacceptably long. With the implementation of New Jersey’s License Site Remediation Professional (“LSRP”) program, which we have detailed in prior posts, NJDEP attempted to expedite the site remediation regulatory process. As the LSRP Program is extremely new, NJDEP seems to be auditing a high percentage of the cases within this program. However, the 2010 Vision Statement and Priorities List spans the entire NJDEP, not just the Site Remediation Program. Although Commissioner Martin acknowledged NJDEP’s core mission of protecting the environment, he emphasized the importance to be much more effective and institute a balanced implementation and enforcement of environmental laws and regulations. Commissioner Martin commented on the importance of understanding and appreciating the impact NJDEP’s actions have on economic growth and environmental protection in New Jersey. Commissioner Martin stated that “protecting the environment should drive economic growth, not impede it.” In addition, he suggested the introduction of a “new culture” within NJDEP, with customer service, flexibility and effective use of performance metrics as key components. The Vision Statement recognizes NJDEP staff as its most important asset, while simultaneously requiring them to change how they perform their functions.

NJDEP staff have been instructed to base its decisions on science, facts and data with a focus on cost/benefit analyses. NJDEP will be utilizing new technologies to streamline operations and improve service. The communication between NJDEP and the regulated community must be constant and transparent, so that decisions are fully and clearly understood. To bolster the commissioner’s claims that NJDEP will work more closely and effectively with the regulated community, on August 17, 2010, NJDEP established a process to allow LSRPs and remediating parties to meet with experienced NJDEP staff to ask site specific technical questions. This service is being offered for new cases (initiated after November 4, 2009) that have opted into the LSRP Program. The technical consultation sessions will be held in face to face meetings to discuss technical issues related to a remediation of a site. This new service is part of NJDEP’s “compliance assistance” approach and will allow LSRPs and remediating parties to move forward with confidence. Although the Commissioner’s efforts to reform the NJDEP are commendable, time will tell whether NJDEP will recognize the real world impacts its decisions have on the regulated community and whether NJDEP will truly modify its behavior.

Click on the below links to view the List of Priorities and the Vision Statement.
http://www.nj.gov/dep/commissioner/vision.pdf and http://www.nj.gov/dep/commissioner/priorities.pdf
 

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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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