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NJDEP Publishes Updated Fees under SRRAJune 21, 2017

The New Jersey Department of Environmental Protection has increased its fees for the 2017-2018 fiscal year for annual remediation costs and permit fees. The new fees can be found at NJDEP’s website by clicking here.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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Deadline for Remedial Action Permit Submission May 7, 2012May 1, 2014

From the New Jersey Department of Environmental Protection...

The purpose of this message is to alert persons responsible for conducting remediation of an important, quickly approaching deadline.  This deadline applies to persons that were issued a restricted or limited restricted use no further action letter by the Department prior to May 7, 2012.  All such persons are required to submit an application for a remedial action permit pursuant to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) at N.J.A.C. 7:26C-7.6.  More critically, the deadline to apply for this remedial action permit is May 7, 2014, as required by ARRCS at N.J.A.C. 7:26C-7.6(a).

The Department will be posting two quick reference guides on its web page at http://www.nj.gov/dep/srp/srra/training/quick_reference.html shortly.  These guides will provide a summary of what is required to be submitted with a permit application and provides links to important forms and guidance documents.  A separate listserv message will be sent out when the guides are available.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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NJDEP Advises Responsible Parties of May 7, 2014 Deadline for Remedial WorkJune 26, 2013

Pursuant to the Site Remediation Reform Act ("SRRA"), the New Jersey Department of Environmental Protection ("NJDEP") has advised responsible parties of the May 7, 2014 deadline for them to complete their remedial investigations. This deadline only applies to some responsible parties, but sites that do not complete the remedial investigation by this date are subject to the requirements of direct Department oversight by NJDEP.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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New Jersey Appellate Division Invalidates DEP Landowner Chemical ExemptionJuly 18, 2012

On July 6, 2012, the New Jersey Appellate Division published its decision in Des Champs Laboratories, Inc. v. Martin, A-3235-10, and ruled certain Department of Environmental Protection ("DEP") regulations that bar sales of industrial properties containing trace amounts of hazardous substances are invalid. Specifically, the Court was asked whether the Industrial Site Recovery Act of 1993 ('ISRA"), the Site Remediation Reform Act of 2009 ("SRRA"), or any other statue authorities the DEP to impose obligations upon the owners of industrial establishments that stored or handled small quantities of hazardous substances, as a condition of obtaining a "de minimis quantity exemption" ("DQE") from ISRA requirements.

By way of background, the Environmental Cleanup Responsibility Act of 1983 ("ECRA") required properties with environmental issues to be "in an environmentally appropriate condition" prior to being sold. In order to ensure same, owners planning to close industrial businesses were required to complete an arduous process regulated by the DEP, or risk having a subsequent sale or business transfer invalidated. As the ECRA evolved, it became clear that its obligations upon owners and operators that handled only "de minimis" quantities of hazardous substances were too onerous, leading the DEP to promulgate regulations for a DQE. The DQE allowed for an owner or operator to simply sign an affidavit stating the site was not subject to the discharge of hazardous substances, or that any such discharge had been remediated.

In Des Champs, the Court was asked to determine the validity of regulatory provision N.J.A.C 7:26B-5.9 requiring the affidavit from a DQE applicant to certify the property where the de minimis quantities have been present is now "clean," and the validity of related provisions within regulatory provision N.J.A.C. 7:26B-5.9 requiring such applicants to remediate the property if the DEP disapproves the DQE application, and the application is not withdrawn.

From 1982 through 1996, Des Champs Laboratories operated an industrial establishment in Livingston, New Jersey assembling heat recovery ventilators. In 1996 Des Champs' environmental consultant submitted a General Information Notice and a Preliminary Assessment Report to the DEP, which were required by ISRA in anticipation of Des Champs terminating its operations at the Livingston site. Des Champs also submitted a Negative Declaration Affidavit to the DEP in January of 1997, certifying "there have been no discharges of hazardous substances or hazardous wastes from the industrial establishment." In response, the DEP issued Des Champs a "no further action" letter authorizing it to cease operations. Later in 1997, the property was sold to R&K Associates.

Eight years later, the DEP was investigating the potential source of ground water contamination in Livingston, and determined the source of the contamination originated in Des Champs' former property.  The DEP therefore issued Des Champs a letter rescinding its 1997 "no further action" letter, and notifying Des Champs it "no longer had the required authorization that allowed the sale of property to occur in 1997." The DEP further instructed Des Champs that in order to regain compliance with ISRA, an application for remediation was to be submitted within fifteen (15) days of receiving the notification.  Lastly, the DEP directed Des Champs to conduct an investigation of its former site to further define the source of ground water contamination, and to submit a preliminary assessment and site investigation report with the appropriate review fees for further review by the DEP, within one hundred eighty (180) days.

Rather than complying with the DEP's direction, Des Champs submitted to the DEP a DQE affidavit on March 23, 2009 pursuant to N.J.S.A. 13:1K -9.7 and N.J.A.C. 7:26B -2.3 (now N.J.A.C. 7:26B-5.9). In the accompanying correspondence, Des Champs's counsel noted that because Des Champs handled a de minimis quantity of hazardous substances, its operations were exempt from ISRA. On April 21, 2009, the DEP denied Des Champs' application for DQE stating "the overlying presumption that an industrial establishment, without regard to fault, should not qualify for a DQE when contamination is known to exist at the site." After additional correspondence, neither Des Champs nor the DEP changed its position. As a result, on September 30, 2010, the DEP issued a directive pursuant to the New Jersey Spill Act (N.J.S.A. 58:10-23.11) directing Des Champs to hire a licensed site remediation professional to perform the remediation; to complete delineation of the immediate environmental concern contaminant source; to conduct remediation; and the establish a remediation funding source.

After analyzing the overview of the statutory framework and the history of the corresponding regulatory provisions, the Court ruled the DEP had exceeded its statutory authority "by injecting into the DQE process a requirement that the governing statutes do not authorize, i.e., forcing an applicant that has only handled or stored de minimis quantities of hazardous materials to provide a certification that the property is free of contamination before its operations can be closed or title to its property transferred." The Court found the DEP actions to be inconsistent with the intent of the SRRA and the ISRA, which both sought to streamline the regulatory process, and minimize government involvement. The Court's decision, however, was made without prejudice to the DEP's ability to seek a cleanup of such an industrial site under other environmental statutes and regulations that are not tied to the DQE approval process.

Related Practice: Environmental & Land Use

Attorney: Anthony Juliano

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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

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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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.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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NJDEP Releases Final Proposed Rules to Implement SRRAAugust 17, 2011

On August 15, 2011, NJDEP issued its final proposed rule for the Site Remediation Act of 2009 ("SRRA") for public comment.  There will be a 60-day comment period and a public hearing on September 13, 2011.  Although lengthy, these Final Rules are intended to amend, repeal and issue new rules to implement SRRA through the Administrative Requirements for the Remediation of Contaminated Sites ("ARRCS").  The proposed rules attempt to clarify or resolve problems and inconsistencies with the current regulatory framework that have been brought to NJDEP's attention since May 7, 2009, the effective date of SRRA.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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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.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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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.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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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.

Related Practice: Environmental & Land Use

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