May 17, 2021 - NJDEP Adopts New Remediation Standards

On May 17, 2021, the NJDEP adopted amended rules at N.J.A.C. 7:26D. Included in the amended rules are soil and soil leachate remediation standards for the migration to ground water exposure pathway and indoor air remediation standards for the vapor intrusion exposure pathway. Numerous changes in the remediation standards are certain to impact current, future, and closed remediation sites. The phase-in period for the updated rules is six months from May 17, 2021, with certain exceptions (e.g., previously approved Remedial Action Workplan, etc.). Several of the key changes include:

• Replacement of "Direct Contact” Soil Remediation Standards with “Ingestion-Dermal” and “Inhalation” exposure pathways.

• Default “Impact to Groundwater Soil Screening Levels” have been replaced with soil and leachate remediation standards for the new “Migration to Groundwater” exposure pathway.

• Replacement of “Indoor Air Screening Levels” with “Indoor Air” Remediation Standards.

For additional information on these remediation standard changes & how they may impact your project, please contact tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.

Specific details are available on the NJDEP’s site:[EXTERNAL]: Adoption of Remediation Standards and Updates to Alternative Remediation Standards Technical Guidance (nj.gov)

At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals.

NJDEP Financial Assurance and Remedial Funding Source: Surety Bond-Model Documents

On October 1, 2020, & October 19, 2020, the NJDEP identified that Surety Bonds are acceptable forms of a Remedial Funding Source (RFS) and Financial Assurance (FA), respectively.  Both were posted in accordance N.J.S.A. 58:10C-19 & 58:10B-3i, with model documents available on the NJDEP’s RFS Guide Web Page:

 https://www.nj.gov/dep/srp/guidance/rfsguide/#fa_mechanisms.  

 https://www.nj.gov/dep/srp/guidance/rfsguide/#rfs_mechanisms

For parties choosing to use a Surety Bond, use of the model document is required and the language, as published, cannot be modified.  It should be noted that use of the model documents are currently allowed; however, future changes to the model may be required an amendment or replacement (pursuant to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) at N.J.A.C. 7:26C-5.

If a party required to establish a Remediation Funding Source chooses to use a Surety Bond:

1. The original Surety Bond must be provided to the Department with a Remediation Cost Review and RFS/FA Form and, as applicable, 1% surcharge check for an initial RFS submittal or if switching from a Self-Guarantee.

2. The entity issuing the bond must be listed on the U.S. Department of Treasury Circular 570 as an acceptable surety and must have a surety license for the state of New Jersey.

3. The bond cannot be cancelled by the Principal (i.e., the person responsible for conducting the remediation) without written authorization from the Department. Cancellation by the entity issuing the bond requires a 120-day advance Notice of Cancellation sent to the Department and the Principal by certified mail or overnight courier. The cancellation cannot occur during the 120 days beginning on the date of receipt by both the Department and the Principal as evidenced by the Return receipts.

If a party required to establish Financial Assurance chooses to use a Surety Bond:

1. The original Surety Bond must be provided to the Department with a Remediation Cost Review and RFS/FA Form.

2. The entity issuing the bond must be listed on the U.S. Department of Treasury Circular 570 as an acceptable surety and must have a surety license for the state of New Jersey.

3. The bond cannot be cancelled by the Principal without written authorization from the Department. Cancellation by the entity issuing the bond requires a 120-day advance Notice of Cancellation sent to the Department and the Principal by certified mail or overnight courier. The cancellation cannot occur during the 120 days beginning on the date of receipt by both the Department and the Principal as evidenced by the Return receipts.

For additional information on Surety Bonds as NJDEP-approved RFS/FA mechanisms, please contact tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.

At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals.

NJDEP Provides Temporary Rule Suspension-Remediation Fee Calculation

On June 17, 2020 the NJDEP adopted an emergency adoption of a temporary rule to suspend the requirement to calculate Site Remediation Reform Act (SRRA) and Remedial Action Permitting fees for fiscal year (FY) 2021, due to financial & budgetary uncertainties cause by COVID-19 pandemic and outlined in Governor Murphy’s Executive Order No. 103 (EO 103).  The FY 2021 fees would remain in effect until FY 2022.

Additional links are below:

• https://www.nj.gov/dep/covid19regulatorycompliance/?utm_medium=email&utm_source=govdelivery

• https://www.nj.gov/dep/covid19regulatorycompliance/docs/srp-contaminated-site-fee-20200617.pdf

• https://www.nj.gov/dep/srp/guidance/srra/fee_guidance_document.pdf

For additional information on Remediation Fees affected by COVID-19 please contact tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.

At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals.

NJDEP Clarifies Remediation Timeframe Extensions Due to COVID-19

The NJDEP has provided further clarification on their April 24, 2020 “Notice of Rule Waiver/Modification/Suspension due to the COVID-19 pandemic and outlined in Governor Murphy’s Executive Order No. 103 (EO 103).  The key detail was how remedial timeframes could have been negatively affected and whether extensions were necessary for responsible parties to maintain compliance.  As presented by the NJDEP, “ …some remediation timeframes identified in N.J.A.C. 7:26C and N.J.A.C. 7:26E, as well as timeframes set forth in an administrative consent order, that have been and will be reached during the period in which EO 103 is in effect will be extended for 90 days.”

For example, if a remedial timeframe were May 1, 2020 it would be extended 90-days to July 30, 2020. The submission of Remedial Timeframe Notification forms are also not required for applicable cases.

Additional links are below:

• https://www.nj.gov/dep/srp/srra/listserv_archives/2020/202006_01_srra.html

• https://www.nj.gov/dep/covid19regulatorycompliance/docs/srp-remedial-timeframes20200424.pdf

• https://www.nj.gov/dep/covid19regulatorycompliance/docs/ao2020-06.pdf

For additional information on Remediation Timeframes affected by COVID-19 please contact tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.

At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals.

NJDEP Compliance & Enforcement: COVID-19 Compliance Alert

On April 21, 2020 The NJDEP issued Compliance Alert #2020-08 to provide further COVID-19 guidance for environmental practitioners and responsible parties in New Jersey. The update provides information for those that may be faced with missing a regulatory or mandatory timeframe for their remedial project.

• It is strongly recommended that the NJDEP be contacted if your project has the potential to miss remedial deadlines as a result of this unprecedented situation.

Cardinal Environmental is considered an essential operation in the state of New Jersey and remains available to assist you with this matter further. While our highest priority is the health, safety and well-being of our families, colleagues, clients, vendors and those we may come in contact with, we remain committed to providing you with the highest level of service.  For additional information please contact tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.

Please stay safe during these extraordinary times.

Sincerely yours, 

Tom Francis, LSRP

President

NJDEP "Guard Your Backyard" Initiative

The New Jersey Department of Environmental Protection (NJDEP) launched the “Guard Your Backyard” initiative in October 2019 to assist municipalities with the importation of “fill” materials on residential properties.  Like most homeowners, understanding the potential issues with soil-fill materials used for backfilling, new construction, and/or landscaping are usually outside their purview.  As a result, some homeowners may fall prey to less scrupulous contractors willing to offer “free” fill or make the claim that “I know a guy, who knows where we can get some cheap fill.”  Of course, being conscientious of costs doesn’t mean that residents need to make unnecessary concessions and accept questionable fill materials offered by their contractor. 

 Fortunately, the NJDEP is promoting the “Guard Your Backyard” effort where local communities can establish regulations to ensure that “dirty” dirt isn’t freely deposited without oversight from, or notice being provided to the town, city, or municipality.  The NJDEP is also providing model ordinances that local governments may use when developing their own regulation(s).  To date, several NJ townships have adopted ordinances to address the matter, including Wantage, Frankford, and Lafayette.

 Currently, the NJDEP Site Remediation Program (SRP), requires that clean fill be used for remediation sites (see N.J.A.C. 7:26C and 7:26E), where Licensed Site Remediation Professionals (LSRPs) may have oversight.  Now with the Guard Your Backyard initiative, the hope is that those outside of the SRP can educate themselves and take action to protect their properties, and communities from being affected by contaminated soil.  

 Here are a few tips when looking to obtain “clean fill” for your home project:

• Ask for “certified” clean fill (know where it came from, and ask for supporting documentation)

• Ask if your local municipality requires a permit for importing / exporting soil-fill.

• Ask for additional cost estimates.

• Be wary of using fill from agricultural areas where pesticides or herbicides may have been historically used (*this includes topsoil).

• Be wary of using fill from commercial / industrial sites.

• Be wary of using fill with solid wastes / debris / or asphalt millings.

For additional information on the Guard Your Backyard initiative or on the site remediation process in NJ, please contact tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.

At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals.

NJDEP Site Remediation Reform Act (SRRA) 2.0

After ten (10) years, The New Jersey Department of Environmental Protection (NJDEP) has updated the Site Remediation Reform Act (SRRA).  The latest version of SRRA (commonly referred to as “SRRA 2.0”) was signed into law by Governor Murphy on August 23, 2019, after input from many stakeholders in the environmental community.  Several notable changes were addressed including (but not limited to) the role of the Licensed Site Remediation Professional (LSRP) & Due Diligence, and Direct Oversight by the NJDEP.  A brief summary of two (2) updates included in SRRA 2.0 are provided below:

LSRPs & Due Diligence:

Potential property purchasers commonly do not want to involve LSRPs in their Due Diligence (e.g. Phase I Environmental Site Assessments, Preliminary Assessments, etc.) due to legal “reporting” obligations of the LSRP when contamination is observed and/or identified at a site. With SRRA 2.0, potential purchasers do not always have a reporting obligation, including their LSRP. One exception is that LSRPs are still required to notify the NJDEP of an Immediate Environmental Concern (IECs) (e.g. contaminated (potable) water, Vapor Intrusion (VI), etc.), and notify the Person Responsible for Conducting Remediation (PRCR)  in writing. 

An LSRP must be retained when any person initiates a remediation.  For consistency, the term “retained” has replaced the word “hired” throughout SRRA 2.0.  However, does a prospective purchaser of a property need to retain an LSRP for due diligence purposes?  Not necessarily. 

Per SRRA 2.0, an LSRP is not required when collecting media samples (e.g. soil, water, air, etc.) or the investigation is not otherwise required by rule or law (e.g. due diligence, bank refinancing, etc.), conducted to obtain a Response Action Outcome (RAO), or to investigate, clean up or respond to any known, suspected, or threatened discharge of contamination.  However, should laboratory testing results (and/or field observations) confirm the presence of contamination, retention of an LSRP is required to proceed with “remediation” along with notification to the NJDEP by the “owner” or “seller.”

(* “Remediation” or “remediate” is defined  as “… all necessary actions to investigate and clean up or respond to any known, suspected, or threatened discharge of contaminants, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action, provided, however, that "remediation" or "remediate" shall not include the payment of compensation for damage to, or loss of, natural resources.” [N.J.S.A. 58:10C-2] )

Direct Oversight

The original SRRA (2009), established regulatory and mandatory remediation timeframes for contaminated sites undergoing remediation, and are still applicable today.  Mandatory timeframes are two (2) years after the regulatory timeframes, and if missed, carry large penalties to the PRCR and place the site into NJDEP Direct Oversight.  Once in Direct Oversight, a case manager is assigned by the NJDEP to oversee the remediation going forward.  With SRRA 2.0, there are now exemptions when 1) deadlines are missed due to access/ownership issues and the PRCR made necessary attempts to gain access, and 2) Additional review time(s) by the NJDEP was required for sites under federal oversight resulting in missed timeframes. 

Additionally, modifications to Direct Oversight are possible if 1) there is a public emergency resulting from a natural disaster, 2) if the NJDEP makes a determination that the modification is in the public interest (and protective of public health, and safety of the environment), and 3) if the NJDEP enters into an Administrative Consent Order (ACO) with a prospective purchaser, provided they meet certain requirements.  Failure to comply may prompt the NJDEP to reinstate any or all of the Direct Oversight requirement.

The full act (SRRA 2.0) is provided at: https://www.njleg.state.nj.us/2018/Bills/A9999/5293_R2.PDF

For additional information on SRRA 2.0 and how the changes may affect your site remediation and/or property transaction, please contact tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.

At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals. Similarly, because the content of this post should not be construed as legal advice or legal opinion, Cardinal recommends consulting an environmental attorney for any specific legal question(s) you may have.

Updated NJDEP Public Notification Requirements

Environmental practitioners and responsible parties in New Jersey take notice as the NJDEP public notification requirements were updated. From the SRP-Site Remediation Reform Act (SRRA) Listserv:

Updated Public Notification Requirements

On August 6, 2018, amendments to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) were published in the New Jersey Register. The amendments include changes related to Notification and Public Outreach at N.J.A.C. 7:26C-1.7.

The major change requires public notification within 14 days prior to commencing initial field activities associated with the remedial investigation (previously remedial action). For cases that initiated the remedial investigation prior to August 6, 2018 but have not yet satisfied the public notification requirements, the 14-day public notification is now due. However, for these cases, the Department is allowing the person responsible for conducting the remediation to comply with the public notification rule requirements by June 30, 2019.

The public notification webpage (www.nj.gov/dep/srp/guidance/public_notification/) is being updated to reflect the new requirements. In addition, the Department will add language highlighting the revised public notification requirements to the acknowledgement letter that is issued in response to online submittals of site investigation reports and remedial investigation reports. SRP Site Remediation Reform Act (SRRA) Web site: www.nj.gov/dep/srp/

At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals. For further information on how we can assist you with your remedial solutions and/or LSRP services, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com. 

New Jersey-Hazardous Discharge Site Remediation Fund (HDSRF) Update-July 2016

Remedial cases in New Jersey in New Jersey often stall out due to the lack of available funds.  This is no secret, as the costs to investigate and/or remediate cases thought to be relatively benign can sometimes sky-rocket 10x, and no responsible party (or homeowner) wants to get that news.  In similar fashion, when looking for some form of assistance or relief from the state, there was the similar doom & gloom scenario where no money was available, or the funds were all dried up.  However, recent inquiries by Cardinal Environmental Consulting to the NJDEP have produced a shimmer of hope with the Hazardous Discharge Site Remediation Fund (HDSRF)…and ultimately a few of our clients.

The HDSRF fund is doing quite well with about $12 million remaining through June 2016, with another $11 million coming in July.  Review times are averaging about 30 days; however, there is still a lengthy backlog so the number one tip that we give all our clients is:

 1.      Assess whether they qualify and if so, get an application in as quickly as possible. 

Applications may take some time to complete, as a number of things are required (e.g. remedial cost estimates, funding type, demonstrated need, etc.) but be sure to take full advantage of the HDSRF County Coordinators.  They are always available to assist with the applications, and are excellent resources.  Allocating valuable time and a relatively small monetary investment to get through the process could save you thousands of dollars later on, so don’t delay!

At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals. For further information on how we can assist you with remedial funding solutions and/or LSRP services, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com. 

Photo of Lake Pemberton, NJ /  Courtesy of Kimberly Green Kaeser

Compliance with Remedial Timeframes

The May 2016 deadline for many remedial (investigation) cases has recently passed; however, Persons Responsible for Conducting Remediation (PRCRs) should not put the brakes on forward progress.  Ideally, extensions or other methods of communication were taken prior to the specified date to demonstrate to the NJDEP that action is being taken, or that a timeframe was likely to be missed, but wallowing in defeat never served any purpose (on any level). Regulators and consultants alike understand the complexities when investigating and/or remediating a site, but the easiest course of action is simple communication.  Don’t overthink it.  A phone call, an email, snail mail…take some measures to discuss the matter with the folks in Trenton and keep pressing forward. 

The first step in the process is to retain (or continue to work with) an experienced Licensed Site Remediation Professional (LSRP) to direct the remedial efforts, and right the ship.   The ultimate goal is to avoid direct oversight by the NJDEP, maintain control of your site’s remediation, and keep cleanup costs down. 

As the NJDEP likes to stress:

Site Remediation Costs < Site Remediation Costs + Penalties + Legal Fees

At Cardinal Environmental, we have the experience to get you through your remedial situation, regardless of the size, or scope.  Additionally, with over two decades in the industry, we have established relationships in the environmental community (including the NJDEP) to get your project on a cost-effective remedial course that meets your long-term goals. For further information on how we can assist you with LSRP services, and/or environmental solutions, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com. 

SRPLB Rule Adoption Review- Volume V: Responsibilities of Successor LSRPs

On January 4th, 2016, newly adopted rules by the New Jersey-Site Remediation Professional Licensing Board-N.J.A.C. 7:26I ("Regulations of the New Jersey Site Remediation Professional Licensing Board") were published in the NJ State Register.  The effective date is January 4th, 2016 / expiration date is January 4th, 2023.  This is the fifth part of this blog series where we continue to look at some of the changes, and look at the public comments / questions and Board responses...and try to "simplify" what they mean.  For this post, we’ll take a brief look at the responsibilities of a “Successor” Licensed Site Remediation Professional (LSRP), as discussed in the General Comments section of the Adoption Document: 

N.J.A.C. 7:26I-6.7 Responsibility of Successor LSRP

52. COMMENT: The commenters opine that the Board requires a successor LSRP to question and potentially "redo" the work of a previous LSRP in N.J.A.C. 7:26I-6.7. This will result in duplication of prior work and potentially greatly increase the costs of a remediation. The Board should revise the proposed new rules to reflect that a new LSRP may utilize his or her professional judgment to determine if any deficiencies in work previously done by another LSRP are valid environmental concerns that will impact the effectiveness of the remediation to protect public health and safety and the environment. A new LSRP should only "redo" previous work when there is a legitimate and justifiable environmental concern. (8, 9, and 17).

RESPONSE: The Board agrees with the commenters that a successor LSRP should have discretion to determine when work completed by a previous site remediation professional may be relied on. However, the Board believes the commenters are incorrect that N.J.A.C. 7:26I-6.7 requires a successor LSRP to "redo" or duplicate the work of a previous LSRP. N.J.A.C. 7:26I-6.7(a) specifically provides that a successor LSRP may complete any phase of remediation based on the work of another LSRP, provided that the successor LSRP abides by the requirements of paragraphs (a) 1, 2, and 3. A successor LSRP is responsible for correcting deficiencies in documents submitted by previous site remediation professionals, including deficiencies identified by the Department or the LSRP himself or herself. It is incumbent upon the LSRP to use his or her professional judgment to identify deficiencies not identified by the Department in documents that warrant correction. Although correcting a deficiency may indeed require additional work and expenditure of additional funds, such measures may be necessary to protect public health and safety and the environment. However, the Board recognizes that there may be deficiencies that are not "material" to the remediation, and that the LSRP is in the best position to evaluate deficiencies and whether or not they are material, and thus warrant correcting. Therefore, the Board will add "material" before "deficiencies" in N.J.A.C. 7:26I-6.7(b).

The Board notes that N.J.A.C. 7:26I-6.7(c) includes the term "material" in referring to "facts, data, or other information concerning any phase of the remediation for which a report was submitted to the Department." The term "material" indicates that the LSRP should evaluate the facts, data, and other information and decide if they are significant or relevant or important to "any phase of the remediation." The Board disagrees that only those facts, data, and other information that are so important that failure to disclose them will impact the effectiveness of the remediation to protect public health and safety and the environment warrant notification. However, the LSRP does have the discretion to use his or her professional judgment to decide if the facts, data, and other information are material and, thus, to decide if they warrant notification. Therefore, the Board declines to make any additional revisions to the proposed new rules as the commenter suggests

What does that really mean?  Again, to simplify the matter...an LSRP is required to correct all “material” deficiencies in prior submittals by site remediation professionals.  These could be reports by LSRPs or non-LSRPs.  The key factor here is the use of “Professional Judgment,” which will vary between individuals, and was discussed in our prior blog topic “LSRPs & Professional Judgment.” In the environmental consulting world, professional judgment will dictate how much “supportive” information, or lines of evidence, are necessary to render a decision.  However, does that mean you need to re-create or re-do the prior work of the previous consultant?  Of course not…but you should be prepared to carefully review all available documents, and it is highly recommended that a NJDEP file review be conducted.  Once done, the LSRP can use all of the facts to make a sound decision, and ultimately determine what can be relied on. 

The easiest way to avoid complicating matters, is to complete this first step (which would take a financial and time commitment from the PRCR), and not rush back into the field to start collecting more, and more data (soil, groundwater, etc.) Oftentimes, there is plenty of information already available…you just need to find it.  Conversely, if there are significant gaps in prior reports (or even questionable decisions by regulators from years past) it may be in the best interest of the LSRP to open up their tool box, and be prepared to conduct supplemental field activities.

Stay tuned for future posts as we’ll continue to dissect and try to simplify more items on the new NJDEP SRPLB Rule Adoptions. We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information regarding LSRP services, and/or environmental business practices, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com. 

New Jersey Unregulated Heating Oil Tanks & The Deed Notice “Light”

There are essentially no bigger headaches when purchasing or selling a residential property, than the infamous Underground Storage Tank (UST).  Whether identified intentionally or unintentionally, the presence of a UST stirs up confusion, and anxiety for all parties involved…realtors included.  Of course, someone always knows “a guy” that can take care of the situation and makes things right, so to speak, but be on the lookout for firms or individuals that are not certified.  In accordance with the Underground Storage of Hazardous Substances Act and UST Rules (N.J.S.A. 58:10A-21, N.J.A.C. 7:14B-16.1)-Individuals or business firms providing services for unregulated heating oil tanks must be certified.  In addition, UST work must be completed in accordance with the New Jersey Uniform Construction Code (NJUCC), and local permits are required prior to the removal of a tank.  Simply put…don’t let the guy, who knows a guy with a backhoe, perform any work on your property without the proper credentials and permits. 

For many practitioners in the environmental consulting world, and the Unregulated Heating Oil Tank (UHOT) community, small heating oil tanks have the potential to cause incredibly costly headaches with remediation fees skyrocketing to well over $100,000 in many cases, just to scrape out every last bit of contaminated soil.  Oftentimes, the chase takes you under a house and structural supports are required, which just adds to the anxiety of a homeowner.  Fortunately, some insurance carriers pick up the tab, but some don’t, and some stick their head in the sand (which is the topic for another day); however, New Jersey is in the process of proposing new rules and guidance that may offer an alternative:  the Deed Notice “Light”

The new rule (“N.J.A.C. 7:26F”) has been in the hopper for several years and is slated to be proposed in the next year. Once promulgated, it would allow for small amounts of residual contamination to remain in-place…with no restrictions and a No Further Action (NFA) issued by the NJ Department of Environmental Protection (NJDEP).  Small amounts means ≤ 15 cubic yards (e.g.  +/- 9ft. long x 7.5 ft. deep x 6ft. wide).  In addition, when contamination is not accessible a homeowner will be allowed to pursue a UHOT Deed Notice or the Deed Notice “Light.”  Of course there are many caveats that would need consideration, but this option gives the homeowner an opportunity to put the brakes on “chasing” contamination and end the remediation, with no requirement for NJDEP Remedial Action Permits or future inspections and/or certifications.  It’s estimated that the Deed Notice “Light” would be a less than desirable outcome because it will reduce the value of a property, but when faced with steep remedial expenses, it’s a viable option.  

When the new rule comes out and these options are available for consideration, do yourself a favor and utilize the services of experienced and certified consultants and contractors to help you make a sound decision, and above all else…make sure you don’t use the guy who knows a guy that has a backhoe.  Odds are they are only going to compound the situation. Nobody needs that.

Stay tuned for future updates and musings, as well as others, from Cardinal Environmental. We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information please don't hesitate to contact us at tfrancis@cardinallsrp.com, or www.cardinallsrp.com.  

Advocating for your Client in the LSRP World

“Advocate: To publicly recommend or support.”

Can Licensed Site Remediation Professionals (LSRPs) advocate for their clients when pursuing closure on a remedial case or when discussing regulatory and/or technical matters with the New Jersey Department of Environmental Protection (NJDEP)?  Contrary to some in the NJ consulting world, the answer is YES.  Is it the same as it was prior to the enactment of the Site Remediation Reform Act (SRRA)? NO.  The days of conducting remedial activities to satisfy a NJDEP case manager are gone, with only a few exceptions. Now, satisfying the LSRP is the objective for most cases, as they are now tasked with signing off on remedial cleanups.  

To put this into the proper context: For an LSRP to be an advocate, they need to have a complete understanding of the client’s specific remedial situation, and essentially be in agreement on the approach.  Once done, they can work collectively to execute an appropriate solution.  This is also a two-way street, as the client needs to understand the role of the LSRP, and their comfort level with regards to specific remedial strategies. Only through effective communication can this be accomplished; however, once this initial hurdle is overcome, the LSRP will have a plethora of tools at their disposal (e.g. technical guidance documents, NJDEP technical consultations, etc.) to support a remedial approach, and ultimately advocate or champion for their client.

For an LSRP, advocating does not mean ignoring or overlooking regulation when conducting remedial activities, to win business, satisfy a client or stay under budget, nor does it mean to find a solution amenable to your client that could be perceived as not being protective of human health, safety, and the environment. 

The challenging part, is whether or not the LSRP (or the client) is willing to budget the time necessary to really dig in deep to establish a great working relationship, and find a solution. To date, the LSRP process has been relatively successful and will only continue to improve in the future, but “successes” require participation on both sides.  As we’ve stressed in prior posts, this is why retaining a skilled and confident practitioner (LSRP) is paramount…as they’ll understand the value in spending the extra time communicating with their client and becoming their advocate.   

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. Stay tuned for future LSRP notes and strategies in the upcoming weeks…as there are plenty of lessons and unique observations to be shared, which could ultimately make our jobs easier, and speed the process for our clients.   

For further information on the LSRP program, or how we can help you navigate through the NJDEP regulatory process, please don't hesitate to contact us at tfrancis@cardinallsrp.com, or www.cardinalLSRP.com.

Drinking Water Contamination and NJDEP "Immediate Environmental Concern" Protocol

Elevated levels of 1, 2 Dichloroethane (1, 2 DCE) were detected at the Frelinghuysen (NJ) Elementary School recently, resulting in the facility to provide bottled water to students, faculty, and other staff members.  Based on what has been reported, quarterly testing is conducted at the school for Volatile Organic Compounds (VOCs) and a result of 10.5 parts per billion for 1, 2 DCE[1] was identified in January and subsequently reported to the NJDEP. The NJDEP limit is 2 parts per billion. Now, the source of the contamination has yet to be identified, but it is anticipated that the school district will investigate this matter further using their environmental consultant and NJDEP oversight.  For those that are not familiar with the “Immediate Environmental Concern (IEC)” process (which applies here) and timeframes, it is outlined as follows:

 IEC Timeframes: Potable Water  

1.     Call NJDEP (1-877-WARNDEP) or assigned case manager: Immediately

2. Notify impacted property owners, occupants, Township, & Health Departments of analytical results and mitigate (i.e. bottled water): Within 5 Days

3.  Submit IEC Response Action Form, Spreadsheet, Data, etc.: Within 14 Days

4.  Installation of Engineering System Response & Receptor Delineation: Within 60 Days

5.    Submit Engineered System Response Action Report: Within 120 Days

6.    Submit IEC Source Control Report: Within 1 year

(Note: The ATSD has indicated that 1,2 DCE[2] is reasonably anticipated to be a human carcinogen, and commonly used in the production of vinyl chloride which is used to make a variety of plastic and vinyl products including polyvinyl chloride (PVC) pipes, furniture and automobile upholstery, wall coverings, housewares, and automobile parts. It is also used to as a solvent and is added to leaded gasoline to remove lead.) 

Based on first glance, it appears that the school and the NJDEP are on top of the matter, with “protection of human health, safety, and the environment” being paramount.  Additionally, the school will be submitting a report on proposed remedial measures within 30 days. Stay tuned as more information is expected to be released over the next few weeks and months.   

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information, or for assistance on your next project, please don't hesitate to contact us at tfrancis@cardinallsrp.com, or www.cardinalLSRP.com.

[1] EPA VOC Methods include 1,2 DCE

[2] Agency for Toxic Substances and Disease Registry

1,2 Dichloroethane-March 2011

N.J.A.C. 7:26I- SRPLB Rule Adoption Review- Volume IV: Deviation from Technical Guidance

On January 4th, 2016, newly adopted rules by the New Jersey-Site Remediation Professional Licensing Board-N.J.A.C. 7:26I ("Regulations of the New Jersey Site Remediation Professional Licensing Board") were published in the NJ State Register.  The effective date is January 4th, 2016 / expiration date is January 4th, 2023.  This is the fourth part of the blog series where we continue to look at some of the changes, and look at the public comments / questions and Board responses...and try to "simplify" what they mean.  For this post, we’ll take a brief look at Professional Competency (of a Licensed Site Remediation Professional-LSRP) and deviation from technical guidance, as discussed in the General Comments section of the Adoption Document: 

N.J.A.C. 7:26I-6.3 Professional Competency

47. COMMENT: The commenters state that proposed N.J.A.C. 7:26I-6.3(c) requires an LSRP to explain why Department technical guidance is "inappropriate or unnecessary" if not used. The SRRA does not authorize this requirement and thus it exceeds the Board's authority. This section should be modified to remove the requirement that an LSRP provide a written rationale concerning why the technical guidance issued by the Department is inappropriate or unnecessary, and instead require the LSRP to explain the rationale for use and provide adequate justification to document that the decisions made remain protective of public health and safety and the environment. (8 and 17)

RESPONSE: The Board disagrees that it exceeded its authority including this requirement in its proposed new rules. The Legislature included a requirement for the LSRP to set forth the justification for using either U.S. EPA guidance or other relevant, applicable, and appropriate methods and practices, and the Board has reflected that requirement in its proposed new rules. Furthermore, there is nothing in the SRRA that supports the commenters' contention that while the Legislature took pains to specifically identify certain requirements that ensure the protection of the public health and safety and the environment, that it intended to have an LSRP simply ignore them without comment or justification. Consequently, the proposed new rules require that the LSRP include in the appropriate report a written rationale that explains why the technical guidance issued by the Department is inappropriate or unnecessary to meet the remediation requirements and which justifies the use of the guidance or methods that were utilized. This requirement is in sync with the Technical Requirements for Site Remediation (N.J.A.C. 7:26E-1 et seq.) and the Administrative Requirements for Site Remediation (N.J.A.C. 7:26C-1 et seq.). (see N.J.A.C. 7:26E-1.5, which requires that "any person conducting remediation pursuant to this chapter shall apply, pursuant to N.J.A.C. 7:26C-1.2(a)3, any available and appropriate technical guidance concerning site remediation as issued by the Department, or shall provide a written rationale and justification for any deviation from guidance.") Therefore, the Board declines to revise the proposed new rules as the commenters suggest.

What does that really mean?  Again, to simplify the matter...an LSRP is required to justify why there was a deviation from applicable NJDEP guidance when conducting an investigation, remediation, etc.  Most practitioners in New Jersey conduct themselves with the utmost integrity and honesty, and keep protection of human health, safety, and the environment there top priority; however, there are over twenty (20) technical guidance documents in New Jersey and the NJDEP Field Sampling Procedures Manual is over five-hundred pages (500)…so the odds of deviating from guidance are pretty high…and really not quite as simple as one would hope or expect.  Similarly, from a business perspective, if one were to follow every detail in every “guidance,” the potential costs for an otherwise routine project could be significant…and potentially cause a prospective client to search for less expensive options. 

Fortunately, technical guidance is (on most occasions) relatively easy to abide by, with deviations generally minor and easy to (technically) justify.  Professional judgement and experience(s) will always vary between individuals, and there is more than enough information available outside of New Jersey to support a remedial decision that deviates from guidance including technical documents from the EPA, ITRC, and ASTM (to name a few), all of which should become part of an LSRP’s toolbox.  More importantly, the easiest way to avoid having a remedial phase report scrutinized, or even having your Response Action Outcome (RAO) potentially rescinded, is to simply “explain” the reason for the deviation in your submission(s) and provide the appropriate technical document to back it up.  Generally the time requirement is minimal, and would save you from a lot of headaches later on…and save you or client a lot of money.   

Stay tuned for future posts as we’ll continue to dissect and try to simplify more items on the new NJDEP SRPLB Rule Adoptions.

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information regarding LSRP services, and/or environmental business practices, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.

N.J.A.C. 7:26I- SRPLB Rule Adoption Review- Volume III: IEC Reporting

On January 4th, 2016, newly adopted rules by the New Jersey-Site Remediation Professional Licensing Board-N.J.A.C. 7:26I ("Regulations of the New Jersey Site Remediation Professional Licensing Board") were published in the NJ State Register.  The effective date is January 4th, 2016 / expiration date is January 4th, 2023.  This is the third part of this series where we continue to look at some of the changes, and look at the public comments / questions and Board responses...and try to "simplify" what they mean.  For this post, we’ll take a brief look at the responsibilities (of a Licensed Site Remediation Professional-LSRP) to report an Immediate Environmental Concern (IEC), as discussed in the General Comments section of the Adoption Document: 

N.J.A.C. 7:26I-6.9 Responsibility to Report an Immediate Environmental Concern

60. COMMENT: The commenter is concerned with the duty to report a discharge by an LSRP that is not retained as the LSRP for a site or area of concern. The commenter opines that an LSRP who is not so retained should not be obligated to act upon information that he or she learns, because he or she would not have all of the necessary information to make any informed regulatory decisions for a potentially complex regulatory action or property transaction. The commenter requests that the Board clarify this issue. (7)

RESPONSE: The commenter asks for clarification of an LSRP's duty of disclosure when the LSRP "comes across information but is not retained as the LSRP for the site [or] area of concern." If an LSRP that is not responsible for a site or area of concern identifies a previously unreported condition that the LSRP considers to be an immediate environmental concern, the LSRP shall immediately advise the person responsible for conducting the remediation and immediately notify the Department, pursuant to N.J.A.C. 7:26I-6.9. The Board considers it of utmost importance that the LSRP report the existence of the immediate environmental concern in order to protect public health and safety and the environment. It is not necessary for the LSRP to have information to make informed regulatory decisions prior to making such a report. In the case of a contaminated site or area of concern for which the LSRP is responsible, if the LSRP obtains specific knowledge that a previously unreported discharge has occurred on the contaminated site or area of concern, the LSRP shall immediately notify the person responsible for conducting the remediation, the Department, and any other LSRP working on the site, pursuant to N.J.A.C. 7:26I-6.10.

What does that really mean?  Again, to simplify the matter...an LSRP must report previously unreported discharges for sites for which they are responsible.  Contractually, an LSRP and their client (Person Responsible for Conducting the Remediation) can establish the terms if such an instance arises and make the call to the NJDEP Hotline (1-877-WARNDEP); however, the challenge occurs when the LSRP has not yet been retained or contracted.  For those instances the LSRP still has an obligation to report the IEC in order to protect public health and safety and the environment, regardless of retention or any contractual arrangement(s).  Unfortunately, with that reporting requirement, there is also an increased chance that you could lose a potential client in the process if not handled appropriately.

As outlined in our previous posts; it is highly recommended that proper communication / discussions take place well in advance, so that if there is a potential reporting requirement and/or IEC, it can be addressed in accordance with N.J.A.C 7:26I-6.10.  This is the easiest way to avoid complicating matters, and potentially retain what may be a great client that is looking to “do the right thing.”  Conversely, if the individual or organization is adamant and does not want to report anything, it may be in the best interest of the LSRP (or any environmental consultant for that matter) to not conduct business with them.  Although this would likely impact the financial aspects of the LSRP’s business, it would preserve professional credibility, and also be in line with N.J.A.C. 7:26I-6.14-Responsibility to Disassociate from Unscrupulous Persons. 

Stay tuned for future posts as we’ll continue to dissect and try to simplify more items on the new NJDEP SRPLB Rule Adoptions.

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information regarding LSRP services, and/or environmental business practices, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com. 

N.J.A.C. 7:26I- SRPLB Rule Adoption Review- Volume II: OPRA Requests

On January 4th, 2016, newly adopted rules by the New Jersey-Site Remediation Professional Licensing Board-N.J.A.C. 7:26I ("Regulations of the New Jersey Site Remediation Professional Licensing Board") were published in the NJ State Register.  The effective date is January 4th, 2016 / expiration date is January 4th, 2023.  This is the second part of this series where we continue to look at some of the changes, and look at the public comments / questions and Board responses...and try to "simplify" what they mean.  For this post, OPRA requests and LSRP's "records" are reviewed: 

General Comments: 

9. COMMENT: The commenter expresses concern with how the public will access the data and records an LSRP holds related to ongoing remediation, and whether such data and records are subject to the Open Public Records Act, as well as when an LSRP should release such data and records. Of particular concern to the commenter is how data and records can be accessed when conducting due diligence in property transactions, for example, pursuant to the "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process," ASTM E1527-13, which provides guidance for compliance with the U.S. Environmental Protection Agency's "all appropriate inquiry" rule. (7)

RESPONSE: An LSRP's data and records are not "public records" as defined in the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq. As a result, an LSRP has no obligation under OPRA to provide the public with access to his or her records. An OPRA request for such records is available after the LSRP has submitted them to the Department along with a response action outcome. Until that time, the person interested in such records will have to contact either the LSRP or the person responsible for conducting the remediation to gain access to those records.

What does that really mean?  To simplify the matter...only documents that are submitted by the LSRP to the NJDEP (e.g. Preliminary Assessment Reports, Remedial Action Reports, etc.) are public documents that can be obtained through an Open Public Records Act (OPRA) request.  Although this is a fair response, the difficulties will be realized when an Environmental Professional (EP) conducting a Phase I ESA attempts to obtain information from an on-going or incomplete investigation, where reports were not yet submitted to the NJDEP.  It is estimated that an EP may attempt to obtain the information from the LSRP or Responsible Party but the likelihood of that information being shared would potentially be low and/or difficult to obtain. Most RP's are concerned about the unwarranted or unauthorized dissemination of confidential information, so their reluctance is understandable.  Conversely, the opposite could be true for certain property transactions where a seller may disclose all information to a potential buyer (and EP) prior to closing a sale and/or submitting reports to the NJDEP. 

That's the easy explanation as to what one could expect.  It's a little more complicated though when conducting due diligence and you are unable to obtain what may be identified as critical information.  Using current ASTM standards, this could be classified as a significant data gap and your Phase I ESA report could still be issued; however, in New Jersey, when conducting a Preliminary Assessment, this lack of information could be vital...and costly if the issuance of the report is delayed. The costs would continue to increase (significantly) if an investigation would need to be completely re-done due to the Site's report(s) not being public records, and an RP's unwillingness to provide them. 

Fortunately, most consultants and RP's generally are willing to share some information, provided certain contractual arrangements are agreed to (in advance)...but there will be those that won't budge or simply cannot be located (creating another roadblock).  Hopefully, those situations are few and far between, but be prepared for a little resistance should they arise.

Stay tuned for future posts as we’ll dissect and try to simplify more items on these new NJDEP SRPLB Rule Adoptions. 

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information regarding the LSRP program, environmental investigations and/or environmental business practices, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com. 

N.J.A.C. 7:26I-SRPLB Rule Adoption Review- Vol. I

On January 4th, 2016, newly adopted rules by the New Jersey-Site Remediation Professional Licensing Board-N.J.A.C. 7:26I ("Regulations of the New Jersey Site Remediation Professional Licensing Board") were published in the NJ State Register.  The effective date is January 4th, 2016 / expiration date is January 4th, 2023.  As part of this series we'll take a brief look at some of the changes, and also take a look at the public comments / questions and Board responses...and try to "simplify" what they mean. 

N.J.A.C. 7:26I-6.10 Responsibility to Report a Discharge

60. COMMENT: The commenter questions whether N.J.A.C. 7:26I-6.10(a) requires an LSRP to report an unrelated discharge on an off-site property that he or she discovers while delineating a plume originating on-site. For example, if the contaminated site the LSRP is remediating has a BTEX plume, but an offsite well placed by the LSRP indicates VOC contamination, should the LSRP report it? (18)
 

RESPONSE: Pursuant to N.J.A.C. 7:26I-6.10(a), an LSRP has an obligation to report a previously unreported discharge when the LSRP obtains specific knowledge that a discharge has occurred on a contaminated site for which he or she is responsible. "Contaminated site" is defined by the Technical Requirements for Site Remediation as "all portions of environmental media and any location where contamination is emanating, or which has emanated there from, that contain one or more contaminants at a concentration above any remediation standard or screening criterion." See N.J.A.C. 7:26E-1.8. A contaminated site does not stop at the property boundary. The commenter presumes that because a monitoring well is not within the property boundary, it is not on the contaminated site, and, therefore, the LSRP is not responsible for it. That does not comport with the definition of "contaminated site" quoted above. The Board expects an LSRP to report any discharges on a contaminated site that were not previously reported.

What does that really mean?  Again, to simplify the matter...if contamination is detected in an "off-site" monitoring well it must be reported.  That's the easy explanation as to what must be done.  The difficult explanation is with the off-site property owner that had no idea they had (or expected to have) a groundwater contamination issue.  Now they are potentially a Responsible Party, if the contamination at their property is unrelated to the contamination at their neighbor's property.  To avoid surprises later, it is highly recommended that proper communication / discussions take place well in advance, and that access agreements are agreed upon prior to installing any off-site monitoring wells and collecting any samples. Retaining a skilled environmental attorney would also be beneficial, as off-site contamination matters (and the finger-pointing) often times get muddled in regulation and litigation, and ultimately stall out site and/or remedial investigations, thus complicating matters even further.

Stay tuned for future posts as we'll dissect and try to simplify more items on the NJDEP SRPLB Rule Adoptions.  

We hope that you find these posts informative, and relatively useful, and your feedback is always welcom.  For further information regarding environmental investigations and/or environmental business practices, please don't hesitate to contact us at tfrancis@cardinaLSRP.com or www.cardinalLSRP.com.