Archive for the ‘Site Remediation’ Category

Will Owner/Operators have to certify that their property is clean?

Written by Mike Pisauro on October 12th, 2012 in Clean Up, legislation, Site Remediation | No Comments »

In July 2012 the NJ Appellate Division overturned a DEP ISRA requirement that a person who is applying for a de minimis exception certify that the property is clean. I wrote about the case in Property Owners no longer need to certify their property is clean to get ISRA exemption.  On Monday, the Assembly Environment and Solid Waste Committee will be considering a bill (A3367) to amend ISRA by inserting a requirement that the owner/operator certify the property does not violate remediation standards.

The bill will in essence put into statute what DEP tried to due by regulation in 2009.  While it essentially codifies the regulation there are some differences.  The bill would require actual knowledge that the property exceeds remediation standards while the regulation provides the owner/operator had to certify to the best of their knowledge the property did not exceed the remediation standards.    While this may be a subtle difference it may make a difference in enforcing clean-ups prior to the transfer of the property.

While I suspect the bill will be released from committee on Monday that does not mean the Assembly will pass it or it will make it to the Senate.  Right now there is no Senate version of the bill.  If the bill does get passed by both houses of the legislature it will be interesting to see if the Governor will sign it.

SRRA, LSRP, SRPLB and what it all means.

Written by Mike Pisauro on August 15th, 2012 in Clean Up, legislation, Regulation, Site Remediation | No Comments »

On May 7th we entered a brave new world.  As of that date all contaminated sites are now required to hire a Licensed Site Remediation Professional (LSRP).  LSRPs were created as a result of the Site Remediation Reform Act (SRRA) that was passed in 2009.  The State was moved to pass SRRA because many stakeholders thought that the process at that time was broken and that change was needed to address the 16,000 to 20,000 sites in need of remediation.  What exactly is an LSRP and what does SRRA do?  Following is an expansion on a presentation I gave at the New Jersey State Bar Association’s Environmental Law Section’s Environmental Law Weekend.  Hopefully, this explanation can provide some answers to those questions – and more.

 

             What is an LSRP?

According to SRRA, an LSRP is “an individual who is licensed by the board pursuant to Section 7 of P.L 2009, c. 60 (C.58:10C-7) or the department pursuant to section 12 of P.L. 2009, c. 60 (C.58:10C-12)” but that definition is not very helpful.  DEP further defines an LSRP as a person who, by education, training and experience, is licensed by the State of New Jersey to oversee the remediation of contaminated sites.  I like to think of them as the professionals who determine if a property is contaminated, how contaminated it is and how to clean it up and who oversees the cleanup and then declares the property clean.

According to SRRA, to be eligible to become an LSRP a candidate must meet the following standards:

  • Hold a minimum of a bachelor’s degree in natural, chemical or physical science or an engineering degree in a discipline related to site remediation.
  • Have eight years of full time professional experience.Have a minimum of 5,000 hours of relevant professional experience within the state
  • Have not been convicted of, or pled guilty to an environmental crime, any similar or related criminal offense; or any crime involving fraud, theft by deception, forgery or any similar or related offense.
  • Has not had another professional license revoked within the previous 10 years

The statute defines “full-time professional experience”as experience in which the applicant is required to apply scientific or engineering principles to contaminated site remediation where the resulting conclusions form the basis for reports, studies or other documents connected with the remediation of a contaminated site.  The Board further defines full time professional experience as having primary decision making responsibility.

In addition to the requirements for education, training and experience, the LSRP is guided by a code of conduct which encompasses 26 items.  Most importantly –and, consequently, first on that list – is that: An LSRP’s highest priority in the performance of professional services shall be the protection of the public health and safety and the environment.  Another big item is that an LSRP shall exercise independent judgment and is required to notify the client and the Department if the client deviates from the remedial action work plan.  Theoretically, the LSRP’s primary job is to insure that the remediation is protective of human health and the environment.

Assuming the LSRP performs their job, when the remediation is complete they certify the property was remediated in accordance with the standards and issues a Response Action Outcome (RAO).  RAOs are the functional equivalent of the No Further Action (NFA) letters that DEP issued at the end of a remediation.  The Department may invalidate an RAO under certain circumstances but must do so within three years of its issuance.

             Who oversees the LSRP?

SRRA not only created the LSRP but also put into place a board to oversee the LSRPs – the Site Remediation Professional Licensing Board

Site Remediation Professional Licensing Board

SRPLB Logo

(SRPLB).  The board consists of 13 members comprised of the following groups:

  • State Geologist
  • 6 LSRPs
  • 3 members of environmental organizations – one of whom  must also be an LSRP
  • 1 Representative of the business community
  • 1 Academic member

The current Board is short two members – the academic member and the environmental member who is also an LSRP.

The Board is responsible for administering the LSRP program.  This includes:

  • Reviewing applications to become an LSRP and approving or denying such requests.
  • Administering and evaluating the licensing exam
  • Issuing licenses and license renewals
  • Establishing standards and requirements for continuing education
  • Approving and offering continuing education classes
  • Adopting and administering standards for professional conduct
  • Investigating complaints
  • Imposing discipline
  • Providing information to the public

In order to accomplish these tasks the Board has been meeting since November 2010 and has created several committees to oversee its many obligations.  Those standing committees are:

  • Bylaws
  • Licensure
  • Continuing Educations
  • Rules
  • Outreach
  • Professional Conduct Committee
  • Finance

 Licensure

From 2009 to May 2012, while it was waiting for the Board to be installed, the DEP administered a temporary licensure program and issued a total of 572 temporary licenses.  The exams to become a permanent licensee began on May 7th.  To become an LSRP a person must apply to the Board and, once the Board reviews and approves that application, the individual is then authorized to take the examination.  305 people were authorized to take the first exam on May 7, 2012.  Of this 305, 278 took the test and 216 passed it.  The next test date is September 24th and there will also be exams in November 2012 and January 2013.  All temporary LSRPs have until January 2013 to take the exam.  After the last exam any temporary LSRP who has not taken or passed the exam will lose their temporary LSRP status and cannot act as an LSRP.  Any temporary LSRP who fails an exam can retake that exam up to three times before losing their temporary license.  After January 2013 the exam will be given on a periodic basis to be determined by the Board.  All licensees must renew their license every three years.

 Continuing Education

This committee is responsible for determining the continuing education requirements for an LSRP. It was the recommendation of the committee that an LSRP complete 36 credits of continuing education over the course of their three year licensee.  Upon applying for renewal of their license an LSRPs must be demonstrate that they have obtained the following::

—  14 Scientific & Technical credits

—  3 Ethical credits

—  10 Regularity credits

—  Balance from any of the above areas

The continuing education committee also reviews course applications and issues a recommendation on whether a course should be approved to provide continuing education requirements.

Rules

The Rules committee is in the process of taking the process documents from various committees and preparing a rule for publication and eventual adoption.  There are currently 4 subsections of the rule up for informal public comment on the Board’s website.

Outreach

This committee is tasked with encouraging public participation in the LSRP Board and it maintains the Board’s website.

PCC

As noted above, the Board is in charge of investigating complaints against LSRPs.  Any person can make a complaint.  A complaint form can be found on the Board’s website.  The job of investigating a complaint is assigned to the Professional Conduct Committee (PCC).  The PCC is made up of five board members.  When a complaint is received it is forwarded to the PCC with the name of the LSRP redacted.  Neither the PCC nor a majority of the Board knows the identity of the LSRP while the complaint is being investigated and the decision rendered.  The only person who knows the name of the LSRP is the Board Secretary who receives the complaints and does the redaction.  The same anonymity cannot be said of the complainant.  Not only does the PCC know the name of the complainant, but the LSRP being investigated is given an unredacted copy of the complaint.  Under exceptional circumstances the PCC may withhold the name of the complainant, but that is anticipated to be a very rare occurrence.  While the Board discourages anonymous complaints, under certain circumstances the PCC will review and investigate those complaints.  Assuming the complaint is not completely without merit, the PCC sets up a Complaint Review Team.

The CRT is comprised of a Deputy Attorney General, an LSRP Board member and one of the non-LSRP board members.  The CRT reviews the material provided by the complaint and can obtain additional documents and information from the DEP, complainant, the LSRP, or their parties.  The CRT also may provide both the LSRP and the complainant an opportunity to submit additional information or to speak with the CRT.  Once the CRT has investigated the complaint it makes a recommendation to the PCC. This recommendation identifies  whether there was a violation of the code of conduct, and, if so which sections of the code of conduct were violated and what the proposed penalty should be.  The PCC may accept this recommendation or send the matter back to the CRT for additional investigation.  The PCC may also modify the recommendation.  The PCC then takes the recommendation to the Board which considers the matter in a closed session. The Board will then vote on the matter in open session. Once the Board votes on the matter, the name of the LSRP becomes public and a summary of the matter is placed on the Board’s website. The LSRP then has 35 days to appeal the Board’s decision.

The PCC has received 7 complaints since its inception.  Four of those complaints are in the process of being investigated.  One of those complaints was referred to the PCC as a result of an audit.   The remaining complaints were investigated and, of those, two were dismissed, one with a warning and one reprimand has been issued.

Audit

Another very important aspect of the Board is the conducting of audits.  SRRA requires the Board to audit at least 10% of the LSRPs each year.  Since the beginning of this year, the Audit committee has been randomly selecting 5 names each month and sending those LSRPs a questionnaire to complete and return.  The number of LSRPs audited will be adjusted depending on the number of licensed LSRPs at the beginning of each year.  Each month a new Audit Review Team (ART), comprised of two Board members,  is selected to perform the audit.   According to the draft rules the Board has been writing, the Board will audit the submissions and conduct of an LSRP to ensure that the LSRP‘s highest priority in the performance of professional services is the protection of public health and the safety of the environment.  The ART reviews the completed questionnaire, and reports prepared by DEP and, based upon this review can request additional information from the LSRP and DEP.  Theoretically, the ART has additional powers to obtain information.  I would suggest the ART could request documents and information from third parties and could perform its own site inspection and testing if it felt it was appropriate.

Once the ART has performed its review it advises the Audit committee if the LSRP’s audit was satisfactory or not.  If the audit outcome is unsatisfactory the Audit committee can refer the LSRP to the PCC for a disciplinary proceeding.

 

The enactment of the SRRA signaled a major shift on how remediation occurs in the State.  The DEP, responsible parties; LSRPs and the public are adjusting to this new paradigm. The Board is putting into place the procedures and policies to guide everyone.  Eventually these policies and procedures will be adopted as rules which the Board is writing.

Property Owners no longer need to certify their propert is clean to get ISRA exemption.

Written by Mike Pisauro on July 13th, 2012 in Clean Up, Courts, Regulation, Site Remediation | 1 Comment »

The New Jersey Appellate Division has just made it even harder for NJDEP to insist that contaminated sites be cleaned up. In a decision rendered last week the Court invalidated DEP’s requirement that applicants for a de minimis exception certify that the property is clean. While the Court stayed the decision for 30 days to allow for the inevitable appeal to be filed, we will have to wait to see if that blow was also dealt to NJ’s environment or if it is limited to a very particular set of facts and regulations.

The case that brought about this decision was filed by Des Champs Laboratories, Inc. The property owner sold a property in 1997 after receiving a No Further Action (NFA) from the Department. In 2008 DEP tracked down contamination that it determined was emanating from Des Champs’ property and rescinded the NFA. DEP further required the property owner to proceed with a site investigation, preliminary assessment and, ultimately, to hire an LSRP.

The property owner, however, refused to abide by DEP’s requirements and instead sought DEP’s approval for a de minimis quantity exemption (DQE). The Industrial Site Remediation Act (ISRA) provides for an exception to its applicability if a property owner or operator qualifies as a DQE. Under ISRA an owner or operator qualifies if the following conditions are met:

  • The total hazardous substances or wastes on the property does not exceed 500 pounds or 55 gallons; or
  • If mixed with nonhazardous substances the total quantity does not exceed 500 pounds or 55 gallons; or
  • No more than 220 gallons of hydraulic or lubricating oil in the aggregate.

The applicant, in this case, indicated that, in addition to using only de minimis quantities of hazardous substances they did not use any of the substances found in the ground water. DEP, however, denied their DQE application because “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.” This requirement was not in the regulation implementing ISRA, at the time Des Champs DQE application was made but was subsequently added in the 2009 re-adoption of the regulations. It is not in the ISRA statute.

The Court rejected DEP’s rejection – as well as the 2009 regulations – explaining that, ), the Legislature has moved the State to a more streamlined and less burdensome process since the Environmental Cleanup Responsibility Act of 1983 (ECRA). By enacting ISRA the State responded comments that ECRA interfered with the transfer of properties. As part of ISRA the State specifically wanted to “reduc[e] oversight of those industrial establishments where less extensive regulatory review will ensure the same degree of protection to public health, safety, and the environment.” With ISRA the State also wanted to “guard against redundancy from the regulatory process and to minimize governmental involvement in certain business transactions.” The Court then noted that the State continued this trend of “minimizing governmental involvement,” when it passed the Site Remediation Reform Act (SRRA).

The Court ruled that “despite its important regulatory role and its expertise over environmental matters, [DEP] acted in the present context beyond its legislatively-delegated powers. . . .” going too far beyond the requirements set out in ISRA. In short, since ISRA did not require the property to be free of contamination in its DQE requirements, DEP could not add that requirement. The Court believed that requiring property owners to investigate their properties to insure that they are contaminant free was too substantial a burden and counter to ISRA and SRRA’s intent to remove State involvement in these kinds of business transactions.

Since the Appellate Court has stayed its decision for 30 days to allow an appeal to be filed. It is possible that the Supreme Court could overturn this decision

In its decision the Court made a couple of observations that are worth noting. First, although DEP could not compel an applicant to certify the property was clean; that did not mean that DEP was without power to require a cleanup under the Spill Act or other regulation. Second, the Court also seemed to be inviting the Legislature to correct their mistake by passing legislation giving DEP the power it sought to exercise. Lastly, the Court also seemed to be indicating that the subsequent property owner may have contractual or legal rights to compel Des Champs to investigate the property and clean it up.

While it is always possible that the Legislature may give DEP the power it seeks, I think that is highly unlikely as this Legislature has been steadily moving away from protecting the environment and more towards easing restrictions on businesses. The more interesting possibility of compelling cleanups is the rights between the parties. Who would like to buy property that may be contaminated just because the seller may not have been the one to do the contamination or use large quantities of hazardous substances? Purchasers of industrial properties may, in their contracts, require that the seller insure that the property is not contaminated.

LICENSED SITE REMEDIATION PROFESSIONAL BOARD

Written by Mike Pisauro 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.