The Remediation Wire - Legal News Regarding The Environment

NJDEP Announces New Guidance On “Unrelated Contamination”

October 7, 2014 | Comments Off
Posted by Marc Policastro

The New Jersey Department of Environmental Protection (NJDEP) has announced a specific “Guidance Document” and protocol to assist Licensed Site Remediation Professionals (LSRPs) to address contamination that is suspected to be unrelated to a known discharge undergoing remediation.  In essence, the roadmap provided by NJDEP addresses three basic scenarios where:  (1) contamination is suspected to be unrelated to the subject site is identified on the subject site and the subject site is not a heating oil tank at a residential property; (2) contamination is suspected to be unrelated to the subject site is identified off the subject site and the subject site is not a heating oil tank at a residential property; and (3) contamination is identified either on or off the subject site and the subject site is a heating oil tank at a residential property. Read more

Are landlords and Tenants “Jointly and Severally Liable” Under the Industrial Site Recovery Act (“ISRA”)? Under New Jersey Law, May a Landlord or Tenant Force the Other’s Hand to Remediate Environmental Contamination Under ISRA?

May 13, 2014 | Comments Off
Posted by Marc Policastro

Under ISRA, landlords and tenants are jointly and severally liable and therefore, the New Jersey Department of Environmental Protection may seek to enforce liability against either party, or both.  N.J.S.A. 13:1D-1 et seq.  ISRA is transaction specific, and the obligation to remediate is triggered by myriad events, including certain changes in ownership and modification of operations involving landlord-tenant relationships.  Accordingly, it is critical that liability for ISRA compliance be spelled out with precision in leases.  For example, the lease may require landlord to comply with ISRA where landlord’s business dealings trigger the ISRA law.  Contrastingly, the lease may require tenant to comply with ISRA upon a cessation of operations or sale of the business or assets.

New Jersey law permits a landlord, or the tenant, as the case may be, to file a formal petition to NJDEP to enforce lease provisions and compel the party responsible pursuant to the provisions of the lease, to comply with ISRA.

Deadline For Completing NJDEP Remedial Investigations Extended For Two Years

January 23, 2014 | Comments Off
Posted by Marc Policastro

On January 21, 2014, Governor Christie signed into law Assembly Bill No. 4543, allowing NJDEP to grant up to 2-year extensions for the completion of environmental “remedial investigations.” Under The Site Remediation Reform Act, remedial investigations are required to be completed by May 7, 2014. The extension option would in many cases obviate the need for the State’s “direct oversight” of non-complying cases.

The looming deadline applies to cases where contamination was identified, or should have been identified, on or before May 7, 1999. Major conditions of applicability for extensions include: (1) retention of a Licensed Site Remediation Professional (2) compliance with existing regulatory “mandatory time frames” (3) posting of a “remediation funding source” or “remediation trust fund” and (4) payment of all applicable fees and penalties. Responsible parties must also be in compliance with requirements addressing “initial receptor evaluations,” “immediate environmental concerns,” “light non-aqueous phase liquid interim remedial measure reports,” “preliminary assessment reports,” and “site investigation reports.”

Applications for extensions must be submitted by March 7, 2014. The State will then have 45 days to notify the applicant of its decision. If an extension is granted, NJDEP will be required to provide notice in the New Jersey Register and include the name and location of the site, the basis for the extension, and the length of the extension.

The ramifications of the new law are widespread, particularly with respect to contractual arrangements and due diligence deadlines affecting real estate and corporate transactional matters, as well as landlord-tenant matters.

Extension of May 7, 2014 Remedial Investigation Deadline

January 14, 2014 | Comments Off
Posted by Marc Policastro

Yesterday, Assembly Bill No. 4543 passed in both the Assembly and Senate.  If signed by the Governor, the bill would allow NJDEP to grant up to 2-year extensions for the completion of environmental “remedial investigations.”  Under current law, remedial investigations are required by be completed by May 7, 2014 under the Site Remediation Reform Act.  The extension option would be significant, as it would in many cases obviate the need for the State’s “direct oversight” of non-complying cases.

The looming deadline applies to cases where contamination was identified, or should have been identified, on or before May 7, 1999.  Major conditions of applicability for extensions include: (1) retention of a Licensed Site Remediation Professional (2) compliance with existing regulatory “mandatory time frames” (3) posting of a “remediation funding source” or “remediation trust fund” and (4) payment of all applicable fees and penalties.  Responsible parties must also be in compliance with requirements addressing “initial receptor evaluations,” “immediate environmental concerns,” “light non-aqueous phase liquid interim remedial measure reports,” “preliminary assessment reports,” and “site investigation reports.”

Applications for extensions would be required to be submitted by March 7, 2014. The State would then have 45 days to notify the applicant of its decision. If an extension were granted, NJDEP would be required to provide notice in the New Jersey Register and include the name and location of the site, the basis for the extension, and the length of the extension.

The ramifications of the proposed new law are widespread, particularly with respect to contractual arrangements and due diligence deadlines affecting real estate and corporate transactional matters, as well as landlord-tenant matters.

NJDEP Issues Guidance Document for May, 2014 Remediation Deadline

May 15, 2013 | Comments Off
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.

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.”

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.

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