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

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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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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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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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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