Archive for the ‘Clean Up’ Category

LICENSED SITE REMEDIATION PROFESSIONAL BOARD

Written by PisauroLawAdmin on August 9th, 2011 in Clean Up, Site Remediation | No Comments »

After several rounds of negotiations the Site Remediation Reform Act (SRRA) was signed into law on May 7, 2009.  I wrote about those negotiations in my blog: GreenPages-NJ.  The Department of Environmental Protection (DEP) proposed creation of the SRRA because of their concern that they did not have the resources to oversee and manage approximately 20,000 contaminated sites throughout New Jersey. The law creates “Licensed site remediation professionals (LSRPs)” who are charged with investigating whether a site is contaminated, preparing a remediation plan, executing that plan and then determining whether the site has been remediated in accordance with the plan.  Lastly, these professionals are responsible for issuing a Result Action Outcome (RAO) letter which is the equivalent of the No Further Action letter we are used to seeing from DEP.  Beginning on  May 12, 2012 all “responsible parties NJ LSRP“(such as a property owner, tenant or person who caused the contamination) are required to hire an LSRP to deal with their contaminated properties, however, DEP is encouraging this process to begin now rather than to wait until it is required.

Along with the creation of site remediation professionals came the need to license the LSRPs and to establish a professional board that would be responsible for overseeing the licensing of professionals, and their continuing education, conducting audits and investigating complaints.  Under the appropriate circumstances, the board would also be responsible for disciplining the LSRPs.

That board is comprised of 13 members and its chairman is the Commissioner of DEP or his designee.  Currently, this position is held by the assistant commissioner for site remediation, David Sweeney.  In addition to the chairman, the board includes the state geologist, three members from the environmental community – including an LSRP working for environmentalists -  and a representative of the responsible parties as well as an academic member.  The remaining 6 positions are held by licensed site mediation professionals. Currently 11 of the 13 members have been nominated by the governor and confirmed by the Senate. The third environmentalist has been nominated by the governor and is awaiting confirmation by the Senate. The academic member of the board has yet to be nominated.

I was appointed by Governor Christie to serve as a representative of the environmental community and have participated since the board’s first meeting.  We’ve met every 2 weeks from November 2010 to the end of May 2011 but have moved to a once a month schedule for the summer. Since November we have set up several committees to review and prepare recommendations on the various issues, including licensing, continuing education, audits, professional conduct review committee, and rules committee. There’s also a financing and bylaws and outreach committee.

Two major issues confronting the board and its committees are how to perform the audits and discipline.  SRRA requires that the Board audit at least 10% of the LSRPs each year.  The audit committee has prepared a proposed questionnaire to send to the LSRPs.  That questionnaire was presented to the public and the committee has received comments which they are now reviewing.

The Professional Conduct Committee, on which I sit, is currently developing the discipline process.  The committee has published to the public a flow chart of the process and is writing the proposed rules to expand on the flow chart.  An open forum on that process will be held in July.

The rules being developed by the board will, in large part, determine whether the program is successful and whether the public can be assured that the remediations that are occurring are protective of human health and the environment.

For more information on the board you can go to the Board’s website at http://www.NJ.gov/SLRPB.

Licensed Site Professionals Bill is now law

Written by Mike Pisauro on May 12th, 2009 in Clean Up, legislation | No Comments »

On Thursday, May 8th the Governor signed into law the licensed site professional bill (which I have written several times about).  While signing the bill the Governor also issued Executive Order 140 which is a clear indication that there are major problems with the LSP bill.

The EO provides that DEP must increase its auditing, monitoring and review of sites that have impacted groundwater, are to be used for residential, schools, childcare or playgrounds/ball fields.  The EO also requires that within the first 24 months DEP must perform at least one case review of documents submitted by every LSP.  Also, DEP is required to provide Technical Assistant grants (TAGS) to at least 5 environment groups per year to help deal with the LSPs.

Instead of conditionally vetoing this bill, the Governor issued this E.O. which can be undone by him at any time or by the next Governor.  Also, the site remediation program’s proposed budget is significantly cut from last year.  So even if there is a good faith desire to meet these requirements, if DEP does not have the resources, how can it comply with the E.O.?

Lastly, Acting Commissioner Moriello, during the budget hearings, has committed to having the temporary licensing and LSP board in place by the summer.  So that the private oversight of cleanups can move full steam ahead.  The question becomes when does the next Kiddie Kollege, W.R. Grace, etc. happen under this program and what will N.J. do in response?

Perfect Storm for site remediation disaster

Written by Mike Pisauro on March 22nd, 2009 in Clean Up, legislation | 3 Comments »

On March 16th both Houses of the State Legislature passed the Licensed Site Professionals bill without very very few no votes. The bill will be on the Governor’s desk and it is expected that he will sign it with all haste.

With the LSP Bill, the DEP will have to undertake several things to implement the bill. They will have to implement a temporary licensing program for LSPs; remediation time frames, presumptive remedies, and support the LSP board once it the members are appointed among other activities. Additionally as the LSP does not automatically apply to current sites, the DEP will have to continue to oversee remediations for active sites. Once sites come in under the LSP program, DEP has to review all of the 1000s of documents that are generated from cleanups.

At the same time as the site remediation program’s responsibilities will increase in the short run, its budget will decrease. The Governor’s proposed budget reduces funding to site remediation by 4 million.

Environmentalist already had concern over the many loopholes in the bill and the lack oversight with a fully funded DEP; those concerns are magnified as the site remediation program is underfunded.  Remember 50% of the RAO reviewed by Mass DEP required more work or were invalidated.  How soon before something slips through the cracks here in NJ.

Both houses about to approve LSP bills.

Written by Mike Pisauro on March 15th, 2009 in Clean Up, legislation | No Comments »

On Feb. 26th both the Senate Environment Committee and the Assembly Environment and Solid Waste Committee released the LSP bill without a single concern or hesitation.  On Monday, March 16th, both the Senate and the Assembly will be voting on the bill.  It is expected that once passed the bill will be run over to the Governor’s office and signed as soon as possible.  For more information on the LSP bill you can read my previous posts. (here and here and here).

NJ legislature about to pass the buck on clean-ups

Written by Mike Pisauro on February 25th, 2009 in Clean Up, legislation, Politics | 1 Comment »

As I wrote in prior posts (here and here) the State is pushing a complete revamp of our site remediation bill.  On February 2nd, I and other environmentalists testified before the Senate Environment Committee in opposition to the bill.  Our written comments can be found here: Enviro’s comments on s1897.

Tomorrow both the Assembly Environment and Solid Waste Committee and the Senate Environment Committee will consider S1897 at a joint hearing. I expect the bill will be passed out of the committee in short order tomorrow and then make it to a vote in both Houses. The bill has gone through many changes since the Feb. 2nd hearing and almost none of the changes have been for the better.

For example the latest version of the bill removes any DEP oversight of the cleanup by the worst offenders until the responsible party violates the cleanup regulations at least twice. The worst offenders are going to be given at least two more bites at the rotten apple before DEP may take over even if they already have a long history of non-compliance up to now.

Another example is that DEP’s is only required to “audit” 10% of the documents submitted during a year.  Given that a cleanup could involve hundreds of documents and multiple that by all of the cleanups going on during a year, 10% of all of the documents submitted in a year is grossly inadequate to fully protection people and the environment.  The DEP cannot audit LSPs but must ask that the LSP board undertake an audit.  There is no requirement that the LSP act on the DEP’s request. There is also no requirement that a LSP board member step aside if an audit is against one of the board member’s co-workers.

Another example is the bill will do little to protect those who need protection the most, our children. While the bill provides that cleanups on properties that will be residences, schools and day care should be cleanup to an unrestricted standard, those properties can also be cleaned up to a presumptive remedies (a standard to be developed by DEP) or using engineering or institutional controls. This means that contamination will remain on the property under a layer of concrete, pavement or additional dirt. Children whose bodies, including their hearts, lungs, brains and nervous systems, are developing are more susceptible to the effects of toxins. If the Mass. model is any indication of how cleanups are going to occur in NJ less than a third of the cleanups will be to an unrestricted level. This is not acceptable. It is also unacceptable that the legislature has repeatedly refused to provide enhanced protection to recreational fields in addition to residences, schools and daycare centers.

In short, fast cleanups are not necessary good cleanups especially if they have to be redone at a later date after people have been exposed to hazardous levels of pollutants.

Cleaning Up Clean-ups in NJ

Written by Mike Pisauro on January 29th, 2009 in Clean Up, legislation | No Comments »


Late Monday afternoon the legislature released what is likely to be the final draft of the State’s proposed revisions to its site remediation laws.  I have written about the bill proposal before (here).  The administration has continued to push a solution that will not enhance the protections we all deserve and will in fact likely reduce those protections.

Several groups including the group I represent, New Jersey Environmental Lobby, have been opposing this bill and held a press conference on Wed. outlining the environmental communities’ concerns over the bill.  A copy of the press release can be found LSP Press Release.

One of the biggest issues surrounding this bill is that the administration is bent on sending the responsibility for cleanups to third parties.  Those third parties are the companies that are being paid by the responsible party to investigate the site, develop the cleanup plan and to actually undertake the remediation.  While I believe that there are good consultants at there, something is very broken.  Over the last several years we have seen too many instances of properties that were supposed to be clean but were not.  Just a few examples:  Kiddie Kollege, W.R. Grace in Hamilton, the Edison Ford Plant, Martin Luther Middle School in Trenton.  These are the very same consultants that will be responsible for certifying to the DEP that they are doing everything that is required under the statutes and regulations.

Another very interesting thing about this process is that DEP routinely receives documents that are incomplete or inaccurate from the very same consultants that will be trusted with overseeing the cleanups.  DEP employees then have to spend time and effort to have these submissions corrected.  This is time and effort that could be better spent on ensuring that cleanups are proceeding according to the law.

Lastly, these DEP employees are funded by the permit fees submitted by applicants.  These employees are not a drain on taxpayers.

There is no question that site remediation is broken, but the “LSP” bill is not the solution.

The Senate Environment Committee will be holding a hearing on Monday, Feb. 2nd where the committee will be taking testimony.  There will be a second hearing where the committee will not be taking testimony but will be voting on the bill.

Tidal Power coming to NJ

Written by Mike Pisauro on January 11th, 2009 in Clean Up, Ocean, Renewable Energy, Uncategorized, Wave & Tidal | No Comments »

Tidal power is coming to NJ.  On Dec. 17, 2008, the Federal Energy Regulatory Commission (FERC) granted a preliminary permit to Natural Currents Energy Services (NCES).  The company proposes to install two in stream tidal turbines, in the Manasquan River, to generate approximately 150,000 to 300,000 KW hours of electricity per year.  The electricity would be used to power the Kingsbridge Marina and Kingsbridge Financial Groups buildings in Point Pleasant, NJ.  NCES notes that any excess would be sold back to the grid per NJ’s net metering laws.

The preliminary permit is the first step in a multistep process before permission is granted to install and operate the turbines.  The issuance of a preliminary permit only allows NCES to the study the environmental impacts of the proposed project and will provide priority for NCES’ application for permits to install and operate the project.   The preliminary permit does not allow NCES to actual install the turbines and operate them.  Once the studies are complete than an applicant to apply for a FERC license.

NCES is proposing to study the site’s geology, navigation and local marine ecology during the preliminary permit period.  The study will look at the proposed project’s impact on fish and marine animals between January to December 2009.  For example, NCES is proposing to study the impact of fish passing through the turbines between May and August 2009.   As part of the permit application process various Federal and State agency filed comments to the application.  According to the National Marine Fisheries Service, the proposed project location is habitat for eighteen federally managed species.  Some of these species are: winter flounder, windowpane, Atlantic butterfish, summer flounder, scup, black sea bass, alewife and blueback herring.  NMFS is concerned that the proposed studies are not designed to give adequate data on the impacts of the turbines on the fish populations as it is scheduled for times where some fish are not present.   Therefore, NMFS is suggesting the studies continue for a full year.

Now that the permit has been issued, NCES has 45 days to submit a schedule. They must also submit reports every six months on the project.  Hopefully, FERC and the other interested agencies insure that the applicant crafts the studies to be meaningful and not merely to minimize any possible negative results.  Once all the data is collected then during the licensing process it can be determined whether tidal turbines make sense for this location.

If the site is appropriate it will help NJ meet its class 1 renewable goals of 22.5%.  Wave and tidal generators are classified as Class 1 renewable energy.  It is interesting that while this permit had been filed during NJ’s energy master plan process, there is barely any mention of wave or tidal energy as part of the recently issued EMP.   What role should tidal power have or can have in NJ?  Also, should NJ encourage these kind of projects in the State and if so how?

Offshore wind, renewable energy and carve outs

Written by Mike Pisauro on November 18th, 2008 in Clean Up, Ocean, Politics, Renewable Energy | 1 Comment »

New Jersey, as does many other states, has a renewable energy portfolio standard (RPS).  This requires utilities to either generate a certain percentage of the energy used in the state from renewable sources or to pay others to generate that electricity from renewable sources.  This payment is in the form a renewable energy credits (RECs).  People and companies that have wind turbines or solar panels (among other sources) create RECs for each megawatt of electricity that is generated.  These RECs are then purchased by the utilities to fulfill their RPS obligations.

Currently NJ requires that 22.5% of electricity comes from renewable sources by May 31, 2021.  Because the BPU and the State of New Jersey want to encourage the development of solar energy, the RPS has a carve out for solar energy.  By May 31, 2021 2.12% of our electricity must come for solar systems.  The remainder of the 20.38% is required to come from Class I and Class II renewables.  Wind and solar are examples of Class I.  Hydro and resource recovery facilities are examples of Class II systems.

Two things are occurring that will change this landscape.  First, the energy master plan seeks to increase the RPS requirements.  The RPS will be increasing to 30% once BPU proposes new regulations to implement the EMP.  Again, there will be a carve out for solar energy.  Under the EMP the state is expecting 2,120 gwh of solar energy which is an increase of gigawatts.  The State is also seeking 3000 MW from offshore wind by 2020.

The second new event is that the BPU is considering a carve out for offshore wind.  This would make two class I carve outs.  BPU is looking to see whether it is feasible or advisable for there to be a carve out to encourage offshore wind farms so that the EMP’s goals of 1,000 MWs can be reached by 2012 and 3,000 by 2020.  BPU is setting up a stakeholder process to determine whether if to set up a carve our; how to set up a carve out, what the schedule for the RPS should be and other factors.  A copy of the BPU’s order is here.

The solar carve out is probably a major factor in NJ being the second in the nation in energy generated from solar systems.  California is number one.  The question is can a carve out for offshore wind accomplish the same thing.   Also, is a carve out even necessary?

DEP releases proposed site remediation bill

Written by Mike Pisauro on November 7th, 2008 in Clean Up | 2 Comments »

There is a general consensus, both in the environmental community as well as the regulated community, that New Jersey’s process to clean up contaminated properties is broken.  New Jersey was once a model and pioneer on cleanups.  Now contaminated sites linger.  For the last several years that has been a string of cases dealing with contaminated sites, Kidde Kollege, W.R. Grace, Ford’s Edison plant, Ringwood and probably others.  A Federal government report came out critical of how DEP has handled cleanups.  The State has recognized that something has to be done.

After a lengthy and long process that began over a year ago we have reached another milestone.  Back in June the legislature released a bill to revamp our site clean up process, S1897/A2962.  Now, DEP has released their own bill on how they would like to see this revamping occur.  From what DEP said last week their bill has been crafted after many consultations with the Chairmen of the Senate and Assembly environment committees.  This major revamping will get a public airing on November 13th, when the legislature holds a joint Senate Environment and Assembly Environment and Solid Waste hearing to discuss DEP’s bill.  It will then be scheduled for another hearing(s) where the bill will be voted on by the committees.

DEP’s bill (here) is 130 pages long and I have not had a chance to read it as of yet, but based upon a meeting last week, this is what I understand to be in the bill.  Many things may have changed from that meeting till the release of the bill on Wed as DEP was still working on the draft.  I will have another post once I have had a chance to review and digest the bill.  Also, here is a link to DEP’s stakeholder site where there is more information regarding the stakeholder process and prior testimony on the state of site remediation.

First, DEP will start a licensed site professional program (LSP).  These LSP will be the ones responsible for determining how to clean up (with some exceptions), the review of the cleanup and then the final review and determination that the site has been cleanup in accordance with New Jersey law.  The LSP is responsible for certifying to the DEP that all documents submitted to the DEP is accurate and in accordance with the law.

The LSPs will be selected and paid directly by the responsible party.  A proposal from the environmental community that the LSPs be selected by the DEP for each particular site and that the DEP pay the LSPs from an escrow fund funded by the responsible parties has been rejected.  This LSP program has been modeled after the Massachusetts program.

LSPs will be subject to random audits and a “strict” code of ethics.  These audits could be of multiple cites that are being handled or had been handled by the LSP.  DEP’s position is that the threat of audits, the code of ethics is enough to make sure there is no undue influence on the LSPs.

There will remain a class of contaminated sites that DEP has more oversight responsibility for.  These may be active sites whose owners or responsible parties have difficult and slow to clean up their properties.  These “Tier 1” sites may also be those that pose the greatest risk to natural resources because of the nature of the contamination or its location to natural resources.

Second, the DEP will no longer issue No Further Action letters.  These NFAs would be issued once a site was clean-up and were relied on by the regulated community and financial institutions to buy and sell formerly contaminated sites.  Now the LSP will certify the site is clean and DEP will not require further clean up as long as what was done was protective of the environment and human health; that it was actually done or that contamination was not missed in the original site investigation.  I can’t see how this one would be acceptable to the regulated community, but we will see.

Third, DEP is asking that the statutes of limitations (SOL) affecting contaminated sites be consistent with each other.  For example the statute of limitations for natural resource damages is longer than that for cost recovery.  DEP is proposing that all SOL’s been the same.

Fourth, DEP is going to (maybe) receive more authority to pick or require certain remedies at educational facilities, child daycares, and residential developments.  This may in fact be an illusionary increase in authority.

Fifth, during the stakeholder process DEP found a large percentage (I think the number is like 30+% but I don’t remember) of applications that come into the Department were deficient.  DEP will institute strict timelines and procedures on how to return a deficient application and for the LSP to provide the revised or corrected application.

Once I have had a chance to look at the bill I will post further comments and correct those things that may have changed from the meeting last week to Wed’s release.

DEP will not issue letters of non-applicability

Written by Mike Pisauro on May 4th, 2008 in Clean Up | No Comments »

On DEP’s website today is a notice that it no longer will issue letters of non-applicability. DEP’s notice can be found here. These letters of non-applicability are staples of the transactional word. A buyer of business or property normally requires that the Seller of the business or property a letter of non-applicability before the transaction can be completed. What the Seller does is to submit an application to DEP for a determination that the previous activities on the property do not trigger an obligation under the Industrial Site Remediation Act to perform a cleanup of the property or for additional testing to be performed. This letter of non-applicability provides a certain level of comfort if not protection to a buyer that the property he is buying is clean.

According DEP’s testimony during a joint hearing with Senate Environment Committee and Assembly Environment and Solid Waste Committee. Irene Kropp, assistant commissioner for site remediation program, testified that a majority of the program’s work load is involving dealing with transactional requests. And that this is part of the problem with getting to the real clean ups in the State.

While this will alleviate some of DEP’s workload, and may or may not violate statutes, it definitely cause serious issues with the business world.

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