Posts Tagged ‘site remediation’

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.

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.

EPA finds DEP's site remediation program lacking again.

Written by Mike Pisauro on September 8th, 2009 in Uncategorized | No Comments »

Recently, the U.S. EPA released an audit report critical of NJ’s Department of Environmental Protection.  This audit report is on the heels of another negative audit report of the DEP’s handling of the remediation of contaminated sites.  The most recent audit looked to at whether DEP’s Quality System was in compliance with EPA’s required Quality control systems, whether DEP was implementing their Quality System and whether DEP was insuring that the data from their monitoring projects were adequate.  Instead of rehashing the entire report, I want to focus on the EPA’s finding regarding the Site Remediation Program.

None of the Site Remediation Program’s bureaus interviewed do any project assessment and/or process improvement beyond data validation, (i.e. no field audits, no split samples, no internal assessment, etc.)  The EPA assessment team was told that Responsible Party contractors and/or NJDEP contractors are “certified professionals and taken at their word.

It is kinda scary to think that DEP has a culture that allows for a complete disregard for the statutory and regulatory requirements.  We have seen over the last several years the impacts of DEP not confirming the information they have received from outside contractors.  I.e. W.R. Grace, Edison Ford plant, etc.

This audit report should be viewed in light of the recently enacted Licensed Site Professionals Law.  The LSP law deputizes outside contractors to decide how contaminated a site is, how best to clean the site and to determine the site is now clean and to issue the equlivant of No Further Action letters.   Once the LSP program is up and running will DEP continue to be so trusting?

When the LSP bill was racing through the legislature Environmental Organizations, including the NJEL, strenuously argued that DEP need to engage in aggressive oversight.  DEP fought enviros on this as well as enviros’ request that DEP maintain control over the worst sites.    The end result is that DEP cannot audit LSPs or even require the LSP board to audit an LSP.  DEP can merely recommend that an LSP receive an audit.  In fact the DEP’s ability to review or audit a site is mostly limited to document reviews and “shall review the performance of a remediation.”  §21b.  Another section of the law provides that DEP and LSP board can “investigat[e], sampl[e], inspect[], or copy[] any records, condition, equipment, practice, or property”  Even if DEP has the authority, will they overcome their culture of trusting the “professionals” and will they independently verify the information they receive from the professionals to ensure that sites are remediated and the environment and our health are protected.

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.

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.