LSRP Required for Child Care FacilitiesJune 13, 2016
The New Jersey Department of Environmental Protection (“NJDEP”) is no longer issuing Child Care Facility Approval Letters. Pursuant to NJDEP’s “Environmental Guidance for all Child Care and Educational Facilities,” a Licensed Site Remediation Professional must be retained, a Preliminary Assessment completed and a Response Action Outcome issued. The guidance can be found on NJDEP’s website.
Reminder....July 26, 2013
Earlier this month, The New Jersey Department of Environmental Protection (DEP) and the New Jersey Department of Health (DOH) announced the NJDOH Vapor Intrusion Data Submission Checklist (Checklist), to be used by Licensed Site Remediation Professionals (LSRPs). The Checklist should be used when LSRPs submit vapor intrusion data to the DOH. The Checklist should not be submitted to DEP.
Beginning May 7th LSRPs Cannot Issue RAOs for UHOTsMay 7, 2012
On May 7, 2012, the Administrative Requirements for the Remediation of Contaminated Site (ARRCS) rules will be amended to provide that the New Jersey Department of Environmental Protection (NJDEP) will issue a No Further Action (NFA) letter to a person responsible for conducting the remediation of a discharge from an unregulated heating oil tank (UHOT) if it is the only area of concern (AOC) at the site. The amendment will delete the provision that allows the Licensed Site Remediation Professional (LSRP) to issue a Remedial Action Outcome (RAO) where the UHOT is the only AOC. An LSRP does not have to submit an LSRP retention or dismissal form if he or she is only remediating the UHOT. If the site has AOCs in addition to the UHOT, and LSRP must issue an RAO for the whole site, including the UHOT.
NJDEP Announces First LSRP ExaminationMarch 26, 2012
The New Jersey Department of Environmental Protection (NJDEP) announced that the Licensed Site Remediation Professional Licensure Examination will be held on May 14, 2012. The examination will be held at two locations in New Jersey.
The Licensed Site Remediation Professional Licensure Examination application and instructions can be found at http://www.nj.gov/dep/srp/srra/lsrp/application.htm
Temporary License Site Remediation Professional Application Deadline is April 1, 2012February 24, 2012
In a little over one month, the New Jersey Department of Environmental Protection (NJDEP) will not process any new applications for temporary licensure for Licensed Site Remediation Professionals (LSRPs). According to the NJDEP, there are 527 temporary LSRPs, with six added in January. Out of the 527 temporary LSRPs, 329 have submitted documents. The temporary LSRPs have submitted a total of 1,136 remedial action outcomes, of which 843 have been inspected and reviewed by NJDEP.
All applications for temporary LSRP licensure will be returned if they are received after April 1, 2012. According to the NJDEP's announcement, decisions regarding temporary license applications will be made by April 30, 2012.
NJDEP Clarifies Status of ACOs and RAsFebruary 21, 2012
The New Jersey Department of Environmental Protection ("NJDEP") released a notice to clarify the status of Administrative Consent Orders ("ACOs") and Remediation Agreements ("RAs") resulting from the Brownfield and Contaminated Site Remediation Act amendments in 2009. NJDEP advises that "the Brownfield Act amendment mandate that remediation proceed without prior Department approval and under the oversight of a Licensed Site Remediation Professional (LSRP)." This includes all parties conducting a remediation pursuant to an ACO or a RA
NJDEP notes that when a party enters the LSRP program, it will hold in abeyance all ACO/RA-specific timeframes, NJDEP pre-approval of reports, workplans and progress reports. NJDEP continues that "parties are expected to proceed with remediation using an LSRP in accordance with N.J.A.C. 7:26C-2.4, and to meet all regulatory and mandatory timeframes contained in the applicable rules, including N.J.A.C. 7:14B, N.J.A.C. 7:26B, N.J.A.C. 7:26C and N.J.A.C. 7:26E."
The ACO/RA will remain in effect, and all other requirements such as remediation funding source, remediation funding source surcharge and penalty provisions, continue. The ACO/RA is not terminated until completion of the remediation or a remedial action permit is in effect for the remaining remediation.
Happy New Year...There are 125 Days Left to Ort-In to the New Jersey LSRP Program for Site RemediationJanuary 3, 2012
Pursuant to New Jersey's Site Remediation and Reform Act ("SRRA"), on May 7, 2012, all remediating parties must retain a licenses site remediation professional ("LSRP") and proceed with remediation without the pre-approval or case management of the New Jersey Department of Environmental Protection ("NJDEP"). Many parties have already opted-in to the LSRP program and have begun clean-up sites without NJDEP approval of all activities. The is also a new framework of mandatory and regulatory timeframes that must be met as the result of SRRA and the NJDEP's Administrative Requirements for the Remediation of Contaminated Sites ("ARRCS"). All forms and information are available on the NJDEP website.
DEP Site Remediation Advisory Group MeetingApril 14, 2011
I attended the April 12, 2011 meeting of the New Jersey DEP Site Remediation Advisory Group as the representative of the New Jersey State Bar Environmental Section. This is my report on significant issues and topics discussed at the meeting.
Regulations. The DEP technical regulations for site remediation have been substantially revised by the Department and are currently being reviewed by the Deputies Attorney General. The proposal of these rules is scheduled to be published in the June 6th or June 20th State Register. Proposed revised regulations covering administrative requirements for the remediation of contaminated sites (the so-called "ARRCS Rules") are about to be sent for Attorney General's Office review, and are also expected to appear in the June 6th or June 20th State Register. Each of the proposed rules will have a 60-day public comment period. Final adoption of these rules is scheduled for May 2012. A proposal on underground heating oil tank ("UHOT") regulations is scheduled to be published in July.
Guidance Documents. The Site Remediation program is working on many new and revised technical guidance documents. So far, eight guidance documents have been proposed for comment on the DEP website, including documents on: alternative presumptive remedies, soil site investigations and remedial investigations, soil preliminary assessments and light non-aqueous phase liquids.
Linear Construction. DEP is working on a new subchapter to be included in the ARRCS regulations to deal with linear construction projects. This applies mostly to utility work where the utility encounters contamination in its right-of-way which it did not cause. Under the proposed regulations, parties undertaking linear construction projects will have to hire an LSRP and utilize best practices, but the utilities will not be responsible for the contamination in the right-of-way which they did not cause. A report must be submitted at the end of the process, and separate guidance will be issued for this work.
Remedial Priority System. The Site Remediation program is finishing up its Remedial Priority Scoring System for all sites. The two main issues involved in formulating the program are: (1) how to calculate remedial priority scores and (2) how to use the priority rankings once they are issued. A functional scoring system will be ready in June, at which time parties responsible for high-rated sites will be given the opportunity to see their scores and to present any evidence to the Department which they feel might reduce the scores. In the fall, the results will be released to the public, as all sites will be grouped in one of five priority rankings. The rankings will be updated semi-annually. Among other potential purposes, the rankings will be utilized by the DEP as a tool to determine which sites will be subject to mandatory direct oversight (i.e. sites that cannot utilize the LSRP program).
LSRP Board. The LSRP Board is currently meeting every two weeks and has divided itself up into seven very active committees, including an audit committee, a licensing committee, a professional conduct committee, a finance committee, an outreach committee, a continuing education committee and a rulemaking committee. The Board's website is currently operational at www.nj.gov/lsrpboard.
Current Statistics. Numerous statistics were recited at the meeting. Among the most significant are:
- 466 receptor evaluations were submitted to DEP in March, and 771 have been submitted year to date.
- 16,114 cases are currently in the Site Remediation Program, of which 2,155 are LSRP cases (either new or opt-in cases), 13,447 are classified as "other" (active or inactive sites subject to DEP oversight) and 512 are UHOT cases.
- 358 Remedial Action Outcomes ("RAOs") have been issued by LSRPs to date, with DEP inspections and reviews completed. Only one RAO has been invalidated.
- 312 LSRP cases have been closed (some RAOs were for individual areas of concern, and did not close cases).
- There are currently 455 temporary LSRPs.
- The DEP Site Remediation case manager staff is down by 21 persons since last August.
Current Site Remediation Briefs. DEP will be sending out a letter in May to responsible parties of record for all site remediation cases, telling them that they have one year to hire an LSRP for their case. Where the remedial process has stopped for a site (no report received for five years) DEP is sending letters to responsible parties telling them that their remediation is now being considered to be a new case, so that they must hire an LSRP in order to go forward. Site Remediation considers their two greatest problem areas to be: parties who will not meet mandatory deadlines and the lack of money available for publicly-funded cases. Regarding the developing LSRP Program, Assistant Commissioner for Site Remediation Dave Sweeney states: "We are still in compliance assistance mode." Currently, most enforcement efforts under the LSRP Program are directed at parties who have not entered the system.
Forms. The numerous DEP forms that must be submitted under the Site Remediation program are in the process of being revamped and refined. It is anticipated that in the near future forms will be accepted for submittal online.
HDSRF. Currently, no money is available to assist remediating parties from the Hazardous Discharge Site Remediation Fund ("HDSRF"). Consequently, the Department is issuing no HDSRF approvals for anyone and is discouraging applications. At the same time, the Department has begun a program of locating HDSRF monies that were previously awarded but not spent, and asking for the return of these funds, so that the pot of money can be replenished and grants and loans can again be made. The DEP is also exploring ways of making changes in the HDSRF Program to make it more sustainable.
The next meeting of the Site Remediation Advisory Group will be on Tuesday, July 12th at 1:30 p.m.
NJDEP Issues Oversight Process Under SRRA For RCRA, CERCLA, and Federal Facility SitesApril 7, 2011
Pursuant to the Site Remediation Reform Act ("SRRA"), the New Jersey Department of Environmental Protection ("NJDEP") has a state to delineate which Resource Conservation and Recovery Act ("RCRA") sites, Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") sites, and Federal Facilities will be handled by the NJDEP and the United States Environmental Protection Agency ("USEPA")and which sites will require remediation under the direction of an Licensed Site Remediation Professional ("LSRP")Program in New Jersey by May 7, 2012.
For RCRA GPRA 2020 universe sites:
An LSRP will not be required for all sites that are on the USEPA's RCRA Governmental Performance and Result Act ("GPRA") 2020 universe list (which can be found at http://www.epa.gov/epawaste/hazard/correctiveaction/pdfs/2020scc.pdf) where the USEPA is the lead agency. NJDEP will continue to issue comments, but USEPA will provide the lead role. These sites will not have to follow the NJDEP's mandatory and regulatory timeframes, nor will they be required to pay the annual remediation fee. Sites listed on the RCRA GPRA 2020 universe list where NJDEP is the lead agency will be required to retain an LSRP by May 7, 2012, but there will still be a NJDEP case manager who will provide all approvals. These sites will also be required to follow the NJDEP's regulatory and mandatory timeframes, pay NJDEP's oversight fees, but not the annual remediation fee.
For RCRA non-GPRA 2020 universe sites:
At all RCRA sites that are not on the USEPA's RCRA GPRA 2020 universe list, the responsible parties must hire an LSRP by May 7, 2012, after which NJDEP will no longer provide oversight. These sites will be subject to all mandatory and regulatory timeframes, the LSRP will issue a Remedial Action Outcome ("RAO"), and they will be subject to the annual remediation fee.
For CERCLA sites and Federal Facilities:
At all CERCLA sites where USEPA is the lead agency and at Federal Facilities under Federal agreement, an LSRP is not required. At CERCLA sites where NJDEP is the lead agency, the responsible party must retain an LSRP by May 7, 2012. At CERCLA sites and Federal Facilities, NJDEP will continue to provide oversight and the annual remediation fee will not be required. If the remediation at CERCLA sites is being conducted as part of a Federal agreement or order, those sites will not be subject to the mandatory and regulatory timeframes. An RAO will not be required for these sites, but any party seeking a seeking a Final Remediation Document for use as part of a real estate transaction after May 7, 2012 must obtain an RAO from an LSRP.
This policy statement from NJDEP provides clarity for those who have a site that would fall into any of these is categories.
Oversight Fees to NJDEPMonday, January 24, 2011
In order to get the long awaited No Further Action ("NFA") letter from NJDEP, one of the perquisites requires payment of NJDEP's oversight fees. Also, under SRRA, before transferring an on-going remediation into the NJ LSRP program, a party is required to pay all outstanding NJDEP oversight fees. Oversight fees can be expensive. It is important to remember that there are caps or limits on the amount NJDEP can charge in oversight fees.
N.J.S.A. 58:10B-2.1(d) provides that "the department shall not establish or impose a fee for the oversight of any cleanup and removal of a discharged hazardous substance or for the remediation of a contaminated site that includes direct program costs and indirect costs which together exceed 7 1/2% of the cost of the remediation of a contaminated site or for the cleanup and removal of a discharged hazardous substance. "The effective date of this provision of the statute was July 1, 2002. N.J.A.C. 7:26-4.5(e) defines oversight costs as "direct program costs + indirect program costs + expenses" to calculate the oversight charges.
Upon receipt of the NJDEP oversight costs invoice obtained before NJDEP will issue a NFA letter, a review of all NJDEP oversight costs charged since July 1, 2002 should be conducted, and overcharges should be raised with the Department. Likewise, a review of all oversight fees charged up to the point where a site is transferred to the LSRP program should also be evaluated to determine if the oversight fees exceed the statutory limits, before paying all the costs. NJDEP will not unilaterally cut its own bills if no objections are raised.
Report on October 13, 2010 Meeting of the New Jersey Site Remdiation Advisory GroupWednesday, October 27, 2010
On October 13, 2010, I attended the New Jersey Department of Environmental Protection (“NJDEP”) Site Remediation Advisory Group. This is my report on highlights from that meeting.
Two significant regulatory changes were embodied in the NJDEP's October 4, 2010 rules proposal. The first would change mandatory regulatory timeframes from one year to two years (and would change certain regulatory timeframes from 270 days to one year). The second proposal would change the indoor air vapor screening levels for establishing an immediate environmental concern ("IEC") case from the current levels to match OSHA response action levels ("RALs"). A new class of "vapor concern cases" is being created for sites with test results falling between the old vapor screening levels and the RALs. The comment period for the rule proposal will end on December 3, 2010 and NJDEP hopes to adopt the revised regulations by March 1, 2011, when the first current mandatory regulatory timeframes are due. NJDEP will also be issuing an interim compliance advisory as to how affected cases will be handled while the proposed regulations are pending and how the NJDEP will utilize its enforcement discretion during that interim period.
By the end of the year or early next year, NJDEP intends to re-propose its technical regulations and the so-called "ARRCS Rules" which implement the Site Remediation Reform Act ("SRRA"). The ARRCS Rules were originally promulgated without public comment, under special provisions contained in the SRRA, so this will be the first opportunity for the regulated community to comment on those regulations. The final form of both the technical regulations and the ARRCS Rules would then be promulgated within a year after the proposal. Bill Hose is the NJDEP Manager of the re-promulgation of the technical regulations. All technical guidance documents are also being reviewed under a process headed by George Nicholas.
NJDEP continues to promote the advantages of opting in to the LSRP Program, and will soon be adding an opt-in page to its website, discussing the step-by-step process for opting in, as well as the benefits of opting in.
The NJDEP is working on a "stand-alone" rule for underground heating oil tanks, under the so-called "UHOT" Program. Currently, rules relating to UHOT cases are scattered throughout the NJDEP regulations.
As of September 24, 2010, 411 temporary LSRPs have been approved, 897 new LSRP cases had been submitted, 509 of these are opt-in cases, and 209 remedial action outcomes ("RAOs"), which are the documents concluding LSRP cases, have been issued. As of that date, only two RAOs had been invalidated, both on the basis that the documents should have been issued as remediation-in-progress waivers rather than RAOs.
- Clean Air Act
- Clean Water Act
- Climate change
- Affordable Housing
- Due diligence
- Eminent Domain
- Floor hazard regulation
- Land Use
- Natural resource damages
- NJDEP Waiver Rule
- Site remediation
- Spill Act
- Toxic torts
- Vapor intrusion