Corporate Officers Held Individually Liable for Violation of Environmental RegulationMarch 1, 2018
The Texas Supreme Court ruled that a corporate officer can be held liable for violating an environmental regulation if the regulation applies to a “person” and if he or she personally participated in the conduct. The defendant, the only member of the LLC that owned the property, failed to maintain and monitor a groundwater remediation system and violated the compliance plan associated with the property. Should this decision be adopted by other jurisdictions, it could have an effect on real estate transactions regarding contaminated property, as well as an effect on corporations and their officers. This decision, while in Texas state court, could signal an expansion of other state and Federal agencies that seek to hold corporate officers or members of an LLC personally liable for failure to comply with environmental regulations and compliance provisions.
NJDEP Announces Adoption of New Ground Water Remediation StandardsJanuary 18, 2018
The New Jersey Department of Environmental Protection (NJDEP) replaced the interim specific Ground Water Quality Standards with amendments to the Ground Water Quality Standards, which were published in the New Jersey Register this week. The new amendment provides specific ground water quality standards for 23 constituents and more stringent standards for three of them. NJDEP also amended Appendix A of the Discharge of Petroleum and Other Hazardous Substances rule to add perfluorononanoic acid (PFNA) as a hazardous substance. This amendment comes less than one month after the Appellate Division struck down NJDEP’s interim standards for PFNA.
The New Jersey Appellate Division Invalidates NJDEP’s ISGWQC for PFNADecember 27, 2017
In 2014, the New Jersey Department of Environmental Protection (“NJDEP”) determined that perfluorononanoic acid (“PFNA”) was a “toxic” substance and posted Interim Specific Ground Water Quality Criteria (“ISGWQC”) describing PFNA as a perfluorinated compound with harmful human health effects. NJDEP did not follow the requirements for the issuance of a rule or regulation wherein the NJDEP action would be subject to public comment and posting in the New Jersey Register. The NJDEP cited N.J.A.C. 7:9C-1.7(c), as its authority for this action, which provides that the NJDEP can establish interim specific criteria for ground water constituents, but also provides that the criteria must be replaced by specific criteria or a rule as soon as possible. On March 14, 2017, NJDEP posted the ISGWQS on its website. This was the first guideline or groundwater criteria related to PFNA that the NJDEP had issued.
In response to NJDEP’s attempted rule-making, the plaintiffs, Chemistry Council of New Jersey, Solvay Specialty Polymers USA, LLC, and Arkema, Inc., challenged the NJDEP’s reliance on N.J.A.C. 7:9C-1.7(c), arguing that the NJDEP violated the Administrative Procedure Act (“APA”). The plaintiffs also argued that the ISGWQC was not supported by credible scientific evidence, thus the ISGWQC was “arbitrary, capricious, and unreasonable,” but the Appellate Division did not make a decision on that claim.
In its decision, the Appellate Division decided that pursuant to the APA, an administrative agency must “proceed in accordance with traditional rule-making requirements for a rule proposal, including provisions of notice and an opportunity to comment.” The Appellate Division highlighted that the ISGWQC adopted by NJDEP was identified as an “interim criteria” and was posted on the NJDEP’s website on March 14, 2014, yet the measures remain in effect today. Thus, the question for the Court was whether this is a valid exercise of authority or agency action in violation of the APA. The Appellate Division, citing Metromedia, Inc. v. Div. of Taxation, found that the ISGWQC has all of the “earmarks of rule-making” as it is a new standard for water quality, intended to apply universally, uniformly, and prospectively to the regulated community. The Court considered that this was the first time NJDEP singled out PFNA as a constituent of ground water requiring attention and that the ISGWQC was in form and effect an administrative regulatory policy. N.J.A.C. 7:9C-1.7(c)(2)(ii) limits the NJDEP’s authority and requires that any “specific criteria” shall be replaced as soon as reasonably possible by a rule. The Court found that the interim criteria have become a de facto permanent regulatory scheme without complying with the APA, thus they are invalid.
The Appellate Division has provided the NJDEP with 30 days to seek Supreme Court review of its decision or to begin complying with the APA.
Appellate Division Reverses DEP Decision Regarding Innocent PurchaserSeptember 22, 2017
The Appellate Division reversed a final agency decision by the New Jersey Department of Environmental Protection (“DEP”) regarding who and what is defined as a “person” under the Brownfield and Contaminated Site Remediation Act (“Brownfield Act”). Cedar Knolls 2006, LLC (“Cedar Knolls”) applied to the DEP to receive an innocent purchaser grant, which request was denied by DEP. DEP determined that Cedar Knolls did not qualify as a person under the Brownfield Act because of the way in which it acquired the property. The DEP denied the application stating that Cedar Knolls was not the same person who acquired the property prior to the 1983 date to become eligible for an innocent purchaser grant. Walter Higginson, who purchased the property in 1977, bequeathed the property upon his death to his wife through two different trusts. When those trusts terminated, the contents were transferred to their son and then to Cedar Knolls. Nine years after the transfer to Cedar Knolls, it applied for an innocent purchaser grant to assist with the clean-up of the contamination of the property.
The Appellate Division referred to the definition in the Industrial Site Recovery Act (“ISRA”) of a “change in ownership” finding that “although these definitional sections are not among the parts . . . that became the Brownfield Act, they nevertheless reflect the Legislature’s concerns with respect to changes of ownership at the time the innocent party grants were established.” ISRA provides that a “change in ownership” is not “a transfer where the transferor is the sibling, spouse, child, parent, grandparent, child of a sibling, or sibling of a parent of the transferee.” The Court found that, although Cedar Knolls is an LLC, because the transfers were made between family members that would not equate to a change in ownership, Cedar Knolls could qualify as a “person” under the Brownfield Act. The Court determined that the Legislature was more concerned with the “substance of ownership” and “continuity” rather than the precise legal form of the entity. Because this property was transferred within Mr. Higginson’s family and he would have otherwise qualified as an innocent purchaser, the Court reversed the DEP’s finding as to whether Cedar Knolls is a person to qualify as an innocent purchaser.
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.
DEP Revises Guidance for IECs and Soil Investigation and RemediationMarch 27, 2015
The New Jersey Department of Environmental Protection (NJDEP) announced revised Technical Guidance for Immediate Environmental Concerns (IECs) incorporating updates from the May 7, 2012 Technical Requirements for Site Remediation. These changes include a new section on monitoring requirements for engineered systems and instructions for the annual monitoring and maintenance reports for IECs. The revisions also include changes to the Geographic Information System mapping procedures for potable wells and vapor intrusion. The Licensed Site Remediation Professional should verify the site location on NJ-Geoweb when the IEC is identified. The revised soil technical guidance makes minor edits to the prior documents.
The revised technical guidance documents can be accessed at the Site Remediation Webpage. NJDEP will allow for a six-month phase in period between the time the guidance is issued and the time it should be used.
Site Remediation Reform Act - Follow upJanuary 27, 2014
As a follow-up to our January 16, 2014 post, Governor Christie signed into law the extension to the requirement in the Site Remediation Reform Act for the completion of certain remedial investigations by May 7, 2014. Thus, parties who meet the requirements as described in the legislation and who seek an extension will now have until two additional years to complete the remedial investigation.
New Jersey Legislature Passes Bill Extending the May 2014 Deadline for Site InvestigationJanuary 16, 2014
The New Jersey Legislature sent a bill to Governor Christie for signature, which would extend the time for completion of remedial investigations of certain contaminated sites. A responsible party would be able to extend the May 7, 2014 deadline to May 7, 2016 by submitting a certification and form. In order to obtain approval for the extension, the following conditions would have to be present:
- A licensed site remediation professional has been retained to conduct a remediation of the site;
- Any remediation requirements, including mandatory remediation timeframes for the site have been met;
- Technically complete submissions are made in compliance with the site remediation rules and regulations for the initial receptor evaluation, immediate environmental source concern control report, light non-aqueous phase liquid interim remedial measure report, preliminary assessment report and site investigation report;
- A remediation funding source has been established if required;
- If a remediation funding source is not required, a remediation trust fund must be established for the cost of the remedial investigation;
- All oversight costs must be paid in full; and
- All annual NJDEP fees and costs for the remediation and remediation funding sources must be paid in full.
An application for an extension must be made by March 7, 2014 or thirty (30) days after enactment of the law, whichever is later.
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.
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.
Appellate Division Remands Application for Innocent Party Grant to NJDEP For Assessment of Corporate ReorganizationJune 3, 2013
Cliflake Associates LLC ("Cliflake" or "LLC") owns an industrial and commercial property in Clifton, which is in need of remediation of soil and groundwater contamination. In 1972, the property was acquired by Cliflake Associates, LP ("LP"). In 1999, the partners in the LP formed Cliflake and acquired the assets of the LP. Title to the property was transferred from the LP to the LLC via executed deed in July 1999.
In 1999, Cliflake began remediating the property pursuant to a memorandum of agreement with the New Jersey Department of Environmental Protection ("NJDEP"). In 2010, the remedial investigation identified volatile organic compounds contaminating the property, which contamination occurred prior to 1972. Soil and groundwater contamination was identified, as well as a vapor intrusion issue that needed to be addresses. The projected cost of remediation exceeds two millions dollars.
Cliflake applied for a Hazardous Discharge Site Remediation Fund Innocent Party Grant ("innocent party grant") pursuant to the Brownfield and Contaminated Site Remediation Act ("Brownfield Act"). The innocent party grant was tentatively denied by NJDEP because Cliflake did not own the property prior to 1972. Cliflake sought reconsideration arguing that the LLC was essentially the same entity as the LP citing definitions from the Industrial Site Recovery Act ("ISRA") regarding a change in ownership. NJDEP tentatively denied the application again finding that a transfer from an LP to an LC does constitute a change in ownership and that the Brownfield Act and ISRA are separate and distinct statutes. Cliflake again sought reconsideration arguing that the LP to LLC transaction was a merger. NJDEP requested documentation regarding the corporate reorganization, which Cliflake did not provide arguing that it was a "de facto merger." On April 12, 2012, NJDEP issued a final agency decision denying the application.
The Appellate Division reviewed the definitions contained in ISRA regarding a change in ownership. The Appellate Division found that the grants were intended to help owners of contaminated property defray the costs of remediation if they are not responsible for the contamination and met the other requirements as an innocent party. The Appellate Division also wrote that the Legislature seemed "more concerned with the substance of ownership and continuity than the technicalities of the legal form." The Appellate Division further rejected NJDEP's argument that a de facto merger can only result in the acquisition of the prior entity's rights.
The Appellate Division remanded the matter back to NJDEP. The Court directed that Cliflake demonstrate that there was a de facto merger and that the change in its structure did not diminish the assets available for remediation or shield the members from liability. Cliflake will also be required to meet the additional eligibility requirements. The Appellate Division also found that Cliflake can raise the issue of the Revised Uniform Limited Liability Company Act.
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.
NYSDEC Announces Final Cleanup Plan for Harbor at Hastings Hudson River SiteMay 18, 2012
The New York State Department of Environmental Conservation (NYSDEC) after many years of remedial investigation announced the final cleanup plan for contaminated sediments in the Hudson River adjacent to the former Harbor at Hastings site. The plan provides for the removal of 60,000 cubic yards of contaminated soils and 24,000 cubic yards of sediment containing polychlorinated biphenyls (PCBs) and metals. The cost of the on-site and off-site remediation is estimated to be more that $250 million. Wire and cable manufacturing caused the release of PCBs and metals to the soil, groundwater and sediments at the site. The site is located on 28 acres along the Hasting-on-Hudson waterfront. The landmass was constructed in the early 1900s by placement of fill material into the Hudson River.
The Record of Decision (ROD) amends the March 2004 ROD for remediation of the on-site contamination and provides a remedy for the off-site contamination, particularly in the Hudson River. The ROD was finalized this year after a 60-day comment period.
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 Fails to Establish Its Burden of Proof and Appellate Division Upholds Denial of Natural Resource DamagesApril 9, 2012
In New Jersey Department of Environmental Protection, et. al. v. Essex Chemical Corporation, the New Jersey Appellate Division affirmed a trial court decision that the New Jersey Department of Environmental Protection (NJDEP) did not carry its burden of proof that Essex Chemical Corporation (Essex) is responsible for natural resource damages. Essex owned property in South Brunswick, which it sold in 1985. Prior to the sale, Essex identified various locations where discharged hazardous, non-chlorinated and chlorinated chemicals had leaked into the soil and groundwater. Essex developed a plan with the NJDEP Site Remediation Program (SRP) to implement a remediation plan for the property.
From 1985 to 1992, Essex removed tanks, excavated contaminated soil and installed a pump-and-treat system to handle to groundwater contamination. In 2001, the system reached an "asymptotic mean," which means the system stopped removing contamination when the levels of contaminant dropped to very low amounts. Thus, Essex with SRP approval, implemented a new plan involving in-situ chemical oxidation, which involves the injection of a reactive solution into the groundwater to change the contamination into non-hazardous chemical by-products. This process worked and the western portion of the property was cleaned up. On the northern and western sides of the property, Essex implemented a soil vapor extraction system, which substantially reduced but did not eliminate the contamination.
Essex, with SRP approval, changed the remediation plan to add a pump-and-treat system to clean the groundwater. By 2004, the system reached an asymptotic mean and Essex, with SRP approval, added in-situ bioremediation, which reduced the soil and groundwater contamination to near or below pre-discharge restoration levels. Essex had spent $5 million to remediate and the SRP believed Essex had done what it needed to do for the remediation, although there was still minimal contamination in the bedrock.
Essex then began remediation of an adjacent property, which was contaminated as the result of Essex's operations. Essex proposed in-situ bioremediation to address the contamination on the adjacent property.
NJDEP offered two experts to support its claims for natural resource damages. These two experts proposed a plan to restore the shallow groundwater to pre-discharge levels within ten years by physically removing the contaminated groundwater and the associated soils by excavation and then flushing the remaining areas of contamination with clean groundwater by using a groundwater extraction trench. The cost associated with this plan was $5.7 million. NJDEP's expert testified that soil excavation is more expensive than other plans, such as bioremediation, but that it works better because the contamination is physically moved and that it would be completed within ten years.
Essex's expert testified that additional soil extraction was unnecessary and would be ineffective. He testified that NJDEP's plan would become ineffective when it reached its asymptotic mean and another technique would be required. He testified that the in-situ bioremediation plan was a more effective treatment technology and had already worked well on the property. He testified that it was the most cost-effective plan and it could be re-applied if necessary until the property reached its pre-discharge conditions.
NJDEP also sought compensatory damages and presented an expert who testified that there are two approaches to measure compensatory damages. The first approach is a valuation approach, which seeks to directly value the resource. The other is a resource compensation or resource-to-resource approach, to determine how much restoration would be needed to offset the natural resource injuries. The expert utilized the "Resource Equivalency Approach" (REA), which involved NJDEP purchasing the property at a price based upon a market analysis, in order to protect that land from future contamination. Essex's expert testified that one must consider the natural resource's lost services when calculating the damages. He testified that NJDEP did not identify any lost services or uses from the contaminated groundwater, thus the natural resource damages would be zero. He also testified that the plan to purchase the property was not an appropriate way to measure damages. He testified that that plan would provide natural resource uses beyond groundwater preservation and result in a windfall to NJDEP.
The trial court found that NJDEP did not meet its burden of proof. The trial court held that NJDEP did not show why the property needed to be remediated within ten years and why Essex's plan would not work. The trial court noted that there had been no injury to flora or fauna and that the groundwater contamination has not affected the health and/or safety of the people in New Jersey. Try trial court also found that NJDEP did not meet its burden regarding compensatory damages as NJDEP's expert utilized information regarding asking prices for residential, commercial and industrial properties within a 20-mile radius, which the court found inaccurate and insufficient. The court also questioned the REA method of calculation as there had been no harm to human health or wildlife.
NJDEP appealed the decision in part arguing that it should have been given deference as the trustee of the State's natural resources. The Appellate Division held that NJDEP still had to establish by a preponderance of the evidence that its plan should be implemented rather than Essex's plan and to establish the damages associated with the contamination. NJDEP also argues that Essex's plan does not include a timeframe for completion. The Appellate Division upheld the trial court's decision regarding natural resource damages and held that plaintiffs did not show that the groundwater contamination adversely affected the public health, safety and welfare thus they did not show any benefit to implementing NJDEP's plan. The Appellate Division also upheld the trial court's decision regarding compensatory damages based upon the analysis used by NJDEP's expert.
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.
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.
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.
New Article on Site Remediation Professional ProgramMonday, December 13, 2010
Frances B. Stella and Lindsay P. Cambron of Brach Eichler's Environmental & Land Use Practice Group, have authored an article, "New Licensed Site Remediation Professional Program Raises Practical Issues," which appeared in the December 13 issue of the New Jersey Law Journal.
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