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

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 September 27, 2010, New Jersey Department of Environmental Protection Commissioner Bob Martin announced the opening of the DEP Office of Dispute Resolution. Commissioner Martin stated that “The Office of Dispute Resolution will play a key role in achieving our goal of breaking down the barriers that have often existed between the DEP and businesses, individuals and local governments.” But the Commissioner warned that “In finding common ground, however, we will not compromise protection of the environment.”

The types of issues which will be appropriate for the dispute resolution process would include, for instance, (a) disputes with the site remediation staff regarding the requirements associated with site cleanups, (b) disputes with the land use permitting staff regarding the issuance of environmental land use permits such as wetland permits and (c) disputes with DEP’s enforcement staff regarding the reasonable amount of penalties, if any, for alleged violations of environmental law.

The alternative dispute resolution process, to be facilitated by the Office of Dispute Resolution, is designed to reduce litigation costs, save time and allow the parties to participate directly in reaching a mutually agreeable resolution of disputes with the DEP. The Office of Dispute Resolution has identified its goals as follows: “define and clarify issues disputed; facilitate communication between regulated parties and DEP staff; encourage collaborative problem-solving; explore options for resolution to the issues; and promote and document a mutually satisfactory agreement.” By participating in the alternative dispute resolution process, parties should be in a position to negotiate with the DEP and reach a resolution of open issues through an expedited process.
 

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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 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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