NJDEP Issues Guidance Document for May, 2014 Remediation Deadline
May 15, 2013 | No Comments
Posted by Marc Policastro
NJDEP has issued a new “Guidance Document”, detailing requirements for satisfying the State’s requirement that “Remedial Investigations” be completed by May 7, 2014. The Department confirms that the deadline applies to contamination identified, or which should have been identified, on or before May 7, 1999.
Media included in the requirement are soil, groundwater, surface water, sediment and air. There is not an exemption where contamination has migrated onto a site from another contaminated property. However, under current NJDEP regulations, responsible parties will not have liability where it is demonstrated that contamination is from an off-site source. The Department is currently developing a Guidance Document to address proofs necessary to document off-site sources.
Significantly, the new Guidance Document also allows professionals to use “professional judgment” to determine whether sufficient information exists to prove the nature and extent of contamination under applicable NJDEP regulations. The State has also reconfirmed that delineation of contamination to the “clean zone” is needed in order to justify issuance of final approval in the form of a Response Action Outcome.
Modifying No Further Action Letters
March 1, 2013 | Comments Off
Posted by Marc Policastro
Under the new privatized Site Remediation Program, consultants are confronted with situations where previously issued No Further Action Letters (NFAs) have been issued “conditionally”, with a Deed Notice or Classification Exception Area (CEA). In certain instances, CEAs can be lifted where contaminants have degraded to acceptable levels and therefore would have warranted an “unconditional NFA” under the old law. Ambiguity in the law now leaves consultants and responsible parties with uncertainty as to whether a “new” Response Action Outcome (RAO) is legally necessary to validate the removal of conditions to the previously issued NFA. In some cases, lenders or investors may require a new RAO in light of the fact that the CEA has been lifted. It remains to be seen whether the Department will, in all cases, require new approvals in such cases. Responsible parties should be conservative in approaching any modifications to previously issued approvals, whether in the context of NFAs, conditional-NFAs or RAOs.
NJDEP Weighs in on 2014 Remediation Deadlines
February 12, 2013 | Comments Off
Posted by Marc Policastro
This morning, NJDEP convened a joint meeting of its Site Remediation Advisory Group (SRAG) and Cooperative Venture Project (CVP). One of the main topics for consideration was whether the Department would entertain extensions from responsible parties who will not meet certain mandatory time frames for cleanups. Current law requires that a “remedial investigation” (RI) be completed by May 7, 2014. Technically, NJDEP has the authority to take cases out of the private sector, dismiss the Licensed Site Remediation Professional and exercise “direct oversight” over the project. The Commissioner’s Office continues to stress that current law does not permit extension of the 2014 deadline. However, individual cases may warrant leniency in situations where significant funds have been expended with sensible prioritization of recourses. In certain cases, NJDEP may also consider imposing direct oversight over only a portion of site, depending on myriad factors.
PRIVATIZING REMEDIATION CASES IN NJ: IS NJDEP REALLY OUT OF THE PICTURE?
August 14, 2012 | Comments Off
Posted by Marc Policastro
With the introduction of the Site Remediation Reform Act (SRRA), New Jersey in effect “privatized” the site remediation process, transferring responsibility for issuing “approvals” from regulators to “Licensed Site Remediation Professionals” (LSRPs). Under previous regulations, NJDEP would ultimately issue final approvals, i.e., No Further Action Letters which would close out the remediation obligations. Owners and operators of real property were obligated to file with the State specific investigatory and remediation proposals which would be reviewed by the DEP case manager assigned to that case. In the event groundwater contamination was suspected, or known to exist, a second review was undertaken by the DEP geologist assigned to the case. Frequently, significant time delays would result in the event the proposed remediation strategy was rejected in whole or part by the State’s case manager or geologist. This problem was particularly troublesome in the context of redevelopment cases where, by necessity, remediation and construction very often must be simultaneously pursued.
That begs the question: Will privatization of the remediation process expedite the cleanup process and, has DEP really been relegated to the sidelines as a passive observer or referee? The LSRP’s playbook in determining whether a final approval is warranted consists, primarily, of the Administrative Requirements for Remediation of Contaminated Sites, the New Jersey Technical Regulations, as well as myriad “Guidance Documents”, which are issued by the DEP and are directed at site specific air, groundwater and soil issues. Specific use categories (residential development, schools and childcare facilities) have been assigned “presumptive remedies” to ensure that the remedy implemented at the particular site is “protective of human health and safety and of the environment,” which is the legal standard LSRPs must adhere to in issuing approvals.
As with any regulatory framework, the Guidance Documents and Technical Regulations offer significant room for interpretation and there are numerous instances where the viewpoint of consultants and regulators may differ. With a new private program designed to streamline the process and reduce DEP’s involvement, how then, under the new program will an LSRP know with any degree of certainty that the remediation strategy employed will survive a third party’s or DEP’s scrutiny? This issue is significant, especially in light of DEP’s right to “audit” final approvals for three years after issuance of a final remedy.
Currently, DEP is offering LSRPs and responsible parties the ability to engage in a “Technical Consultation” process which, to some degree, brings the State back into the fold without providing DEP with “direct oversight” over the case. The DEP requires that Technical Consultations occur with a face-to-face meeting, and the agenda must be submitted in advance of the meeting. DEP will not consider issues relating to extension requests, timeframes for compliance, or fees. The Department has taken the initiative to staff such meetings with the appropriate representative from DEP, depending on the nature of the inquiry. DEP will not provide official approval for any particular remedial action or investigation proposed, however, the State will provide detailed guidance. In turn, the responsible party is encouraged to submit to DEP a written findings and determinations document, outlining the strategies discussed and the DEP’s guidance. DEP is including written findings and determination documents in its data base, which is cross referenced by property. Prospective purchasers, investors or prospective tenants may access DEP’s data base in the course of due diligence to better assess the State’s likely treatment of remediation issues in the event of an audit. Similarly, due diligence may be enhanced to gauge whether the State will likely exercise “direct oversight” in the vent of substantial non-compliance by the current owner or operator.
Bottom line: NJDEP remains in the mix.
Tags: CLEANUP > CONSULTATION > contamination > groundwater > linkedin > LSRP > NJDEP > SRRA
DEP UPDATES ON ENFORCEMENT AND LSRP
March 8, 2012 | Comments Off
Posted by Marc Policastro
This morning, Acting Assistant Director Kevin Kratina and Assistant NJDEP Commissioner Wolfgang Skacel briefed the Environmental Bar Section on the status of the Site Remediation (LSRP) Program and NJDEP’s current enforcement policies. Significant updates include:
LSRP Program
- Over 1,200 Response Action Outcome (RAO) determinations have been submitted to NJDEP. To date, no RAO has been invalidated by the State. However, RAOs have been withdrawn in instances where NJDEP has rejected methodologies employed in issuance of final approvals.
- NJDEP has issued over 750 deficiency letters in cases where responsible parties are “not continuously remediating.”
Enforcement and Treble Damages
- Significantly, the Department is accelerating efforts to issue enforcement “directives” in an effort to encourage private parties to pursue treble damage claims under the Spill Act.
- Where regulatory violations are deemed to be “minor” and “easily cured”, DEP will now in many cases issue warning letters in lieu of “Notices of Violations.”
Tags: "NJ" "Response Action Outcome" > "site" "remediation" > enforcement > LSRP > NJDEP
Final Environmental Approvals: Wait Just a Second — You’ve Been Audited
April 3, 2011 | Comments Off
Posted by Marc Policastro
Let’s face it, when NJDEP was in the business of issuing “No Further Action Letters” (NFA), a developer or party responsible for a cleanup, had some sense of finality and comfort that the NFA signaled the end of the road, and would limit future costs. Under the LSRP program, the consultant, not DEP, will issue the final approval — a Response Action Outcome (RAO). Under current law, NJDEP has the right to audit a “final” RAO within three years from issuance of filing. That begs the question: When is it legal for DEP to invalidate an RAO?
For starters, an LSRP is bound to follow “applicable specific NJ technical standards”. However, if no applicable standard exists and DEP’s other general guidelines are inappropriate or unnecessary, then the LSRP can, in its professional judgment, turn to (i) federal EPA standards and (ii) standards used in the other 49 states. This is important. DEP, in auditing a filing, can therefore invalidate an RAO where the LSRP (A) failed to adhere to DEP technical standards and requirements or (B) failed a reasonableness test in following an EPA or standard from another state.
The attorney’s role just got a little more complicated.
Tags: audit > linkedin > LSRP > NFA > NJDEP > RAO > remediate > response action outcome
Duty to Remediate: Are You on DEP’s Radar?
April 2, 2011 | Comments Off
Posted by Marc Policastro
The Site Remediation Reform Act (SRRA) confirmed what I have been counseling clients for years. In general, if you are a “responsible party” (RP) for remediation, there are just too many ways the State may enforce your obligation to investigate and remediate a release of hazardous substances. Now, under the LSRP program there is simply no doubt. The new law creates a clear “duty to remediate” which changes the playing field.
In the pre-LSRP world, an RP under ISRA, the Spill Act, or the Underground Storage Tank Act, could opt to “voluntarily cleanup” a site by entering into a Memorandum of Agreement (MOA) under the Voluntary Cleanup Program. Under the MOA, there were no mandatory time frames for investigating, reporting or remediating. Now, under the new program, the voluntary MOA route is no longer an option. The implications are clear from a transactional lawyer’s perspective. Previously, developers looking to “tie-up” properties prior to obtaining full approvals, or prior to completing due diligence, could enter into the MOA-voluntary cleanup program, and set their own course and time frames for remediation. Careful maneuvering and planning is now required prior to taking title to property affected by contamination. Once title passes, the voluntary “wait and see” game is no longer an option, unless the owner contracts with its seller for shared, or some type of shifting of responsibility. Even where contractually there is a sharing or shifting of liability, NJDEP will continue to look to the RP as the primary target on its radar.
Tags: DEP > linkedin > LSRP > NJDEP > radar > remediate > voluntary cleanup
Closing Deals, Environmental Hurdles with Industrial Establishments
March 31, 2011 | Comments Off
Posted by Marc Policastro
The Industrial Site Recover Act (ISRA) is not monumentally affected by the LSRP Program. However, the means utilized to work the ISRA maze and close transactions have been altered and the rules of engagement for remediation have changed for sure. When confronted with a site qualifying as an “industrial establishment” in NJ, under the new LSRP program there are three primary ways to close a deal when environmental contamination exists: (1) hire an environmental consultant to investigate and remediate the site, to certify that the property is clean and to also issue a “Response Action Outcome” (RAO) (2) file a “Remediation Certificate”, which entitles the responsible party to close the deal first, and then cleanup after closing or (3) file a “Remedial Action Workplan” (RAW) with NJDEP.
The RAO route is basic. The professional must investigate, and then remediate in accordance with applicable technical regulations. Under the ISRA statute, the RAO qualifies as an “authorization letter”, which by law permits a closing to occur. “Closing” may include, for example, a sale of property, sale of assets, sale of a controlling interest in stock or a cessation of operations.
Remediation Certificates replace “remediation agreements” under the old ISRA regulations. Under the new regulations the consultant prepares and files the Certificate. Under the prior regulations, NJDEP would approve the form of the remediation agreement. DEP approval is not required when a Remediation Certificate is in play. Remediation Funding Sources (collateral securing the cleanup obligation) are required. Under the new procedures, the LSRP must still provide an estimate for the cost of the remediation. In practice, NJDEP has been accepting the minimum $100,000 for the funding source. Under the new law, NJDEP will once again accept a letter of credit as a form of RFS.
Filing of a Remedial Action Workplan may also serve as an “authorization letter” which permits a closing to occur. Here, the State reserves the right to review and approve the Workplan. When utilizing a RAW for clearance to close, a Remediation Funding Source is required.
In addition to these three basic clearance vehicles, DEP continues to entertain “De Minimis Quantity Exemption” applications. In certain cases, approval for closing may be achieved where levels of contamination don’t exceed applicable standards. The process may also be streamlined where there is an existing cleanup underway. In that case, the responsible party may be eligible for a “Remediation in Progress Waiver”. In certain transactions, sellers and purchasers may need one, or several, clearance mechanisms to effectuate closing.
Tags: certificate > industrial > linkedin > LSRP > NJDEP > RAO > remediation
Spill Act Liability and the “Nexus” Test
March 23, 2011 | Comments Off
Posted by Marc Policastro
On March 18, 2011, the Appellate Division ruled that under New Jersey’s Spill Act, strict liability for environmental discharges also requires proof of a “nexus between the discharge and the need for remediation and consequent damage”. New Jersey Department of Environmental Protection v. Dimant, App. Div. (Parrillo, P.J.A.D.). The court’s discussion and comparison of the State and Federal standards for imposition of liability for a release, or discharge, of hazardous substances is particularly instructive. Under CERCLA, a less stringent standard applies in proving that a “release” has affected soil or groundwater. Under New Jersey’s Spill Act, discharge liability will not be imposed from mere passive migration of hazardous materials which are already existing in the soil or groundwater. In this case, plaintiffs failed to demonstrate that the defendant had some connection to the damages caused by contamination, or that defendant exacerbated contamination which had already been caused by prior operations.
NJDEP Waiver Rule: A Long Time Coming
March 22, 2011 | Comments Off
Posted by Marc Policastro
Finally, NJDEP has proposed a development friendly, flexible rule which would permit the State to waive strict compliance with certain environmental regulations. Under the proposed rule, NJDEP would consider waiver requests if, for example, the regulation at issue conflicts with another applicable State or Federal rule. The State would also look to advance waiver applications where “strict application” of the rule would be unduly burdensome, or where alternative remedies would achieve the same results but at a “significantly lower cost”. Public emergencies or situations where a waiver would enhance the environment will also trigger consideration for a waiver. Welcome to the 21st century.
keep looking »
Subscribe to Our Feed