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.  

What if you were told that you can’t drink your water?

You knew that it looked “off” in the past, but you assumed that things were okay because you trusted your water service provider, and they certainly wouldn’t allow you to be harmed.   

What if you have a private well…and noticed that your water started to look or smell different recently?  Do you just “hope” that it clears up and goes back to normal? Would you still let your children drink it?   

What if you live in the Marcellus Shale region of Pennsylvania where there are well-documented (but less public) accounts of water-related illnesses in people, pets, and livestock BUT regulation of oil & gas exploration has seemingly made protection of public health secondary?   

Living on the east coast for most of my life, and as an environmental practitioner for 20 years, I’ve come across a broad range of sites, situations, people, and have seen surface & groundwater look as clear as a mountain stream, rusty as iced tea, and as yellow as Mountain Dew; but it usually takes “current” (and very public) drinking water issues (e.g. Flint, MI; Newark, NJ) to bring these concerns to the forefront, unfortunately.   

Because this topic can cover a lot of ground, the logical starting point is to consider whether the current local, state, and federal regulatory programs are adequate, and if the protection of our water supplies AND ultimately, human health and the environment are at the top of the list.  They certainly should be, but avoid becoming consumed by the vastness of the matter (global scale). Start by reaching out to your local public officials to educate yourself on current and future measures, programs, and initiatives in your town, county, and state because in our complex society, there will be crusaders on both sides of this battle but access to clean drinking water shouldn't be compromised. 

As contentious as this topic can be, 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.

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 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. 

Background Contamination-Vapor Intrusion Investigations-Volume IV

As a continuation of our Vapor Intrusion Investigation (VII) series, it is vital to understand the residence / structure you are investigating prior to the collection of Indoor Air (IA) samples, and more importantly what may be stored and/or used by the occupants. For this, post we’ll take a quick look at a common household contaminant that could show up in your analysis…and leave the investigator scratching their head.  (As always, there is plenty of research, data, and guidance on this topic but the objective of this series is to simplify the discussion using typical and “hypothetical” scenarios).  

For this post, our objective is the collection of IA samples, and to identify whether a connection (or complete VI pathway) exists to the reported tetrachloroethylene (“PCE”) groundwater contamination nearby. The potential fears associated with the results of IA sampling include reduced property value and the impact on your kids’ health, so it’s understandable that some (if not most) homeowners are reluctant to follow-through, and allow such a test.  This is where experienced professionals usually excel…as they are typically able to effectively communicate and provide the sampling rationale with occupants, and conduct a thorough indoor air quality survey (or questionnaire) to identify potential background contaminants.    

Similar to prior posts, most technicians want to get in and get out, set up the required sampling canister, and not be hindered by having to complete a survey and inventory every potential indoor air contaminant. This can be time consuming, but there’s always value to being methodical.  

Start with the why: A poorly conducted indoor air survey will inhibit an investigator’s ability to assess whether sample results are “representative” of actual vapor intrusion conditions, or merely the result of background compounds or contaminants. As we’ve stressed in prior posts, this is why hiring that skilled practitioner is a good idea…as they’ll understand the value in spending the extra time completing a survey and product inventory, and also communicating with the occupant(s).    

Correlation of Results: Upon completion of a “properly” conducted IA sampling event, which included the collection of an ambient (outside) air sample, basement, first floor and second floor sample, numerous compounds were detected in the (EPA Method) TO-15 analyses including PCE.  PCE is the primary contaminant of concern in this scenario and was identified above action levels in a nearby groundwater monitoring well, and from a subsurface soil-gas sample collected in the basement.  With this information, it’s then up to the investigator to evaluate if the VII pathway is “complete.”  A quick look at the PCE data revealed the following:

• MW-1 (groundwater): 75(ug/L)
• Sub-Slab Soil Gas: 620 (ug/m3)
• Basement-Indoor Air: 0.6 (ug/m3)
• First Floor-Indoor Air: 10.2 (ug/m3)
• Second Floor-Indoor Air: 7.6 (ug/m3)
• Ambient (outside) Air: Not Detected.

The groundwater and sub-slab soil gas results displayed fairly high levels of PCE (which are likely above state action levels), but the indoor air results tell a different story. The expected highest concentrations of PCE would have been in the basement, not the first or second floors.  The first floor result is also potentially above an indoor air screening level.  At this point the experienced investigator would have to refer back to the completed building survey and product inventory to determine what potential background sources were present, and if the occupants followed the instructions that were provided (e.g. use of fireplaces, air fresheners, cleaning products, etc.).  IF the survey and inventory was completed properly, and IF the occupants were forthright, the answers will come quickly and potential follow-up activities and decisions (including any regulatory reporting) could be completed without delay.

For this scenario, no recent dry cleaned clothes were brought to the residence, no individuals worked at facilities where PCE may be used (and inadvertently brought home), and no interior cleaning products were used. However, the occupants indicated that they didn’t use air fresheners; but they frequently used various types of scented candles on both floors AND mistakenly used a scented candle on the first floor at the time of the sampling event.  Unbeknownst to some, scented candles may contain several organic compounds including (but not limited to) PCE, Formaldehyde, Acetaldehyde, Naphthalene, and Polycyclic Aromatic Hydrocarbons (PAHs).  Based on this information, and also due to elevated levels of Formaldehyde in the IA analyses, the logical conclusion in this scenario was to attribute the indoor PCE concentrations to the background contaminant, and not the nearby groundwater contamination.  More importantly, the Vapor Intrusion pathway was deemed incomplete, and mitigation was not unwarranted (using the state’s regulations and guidelines). 

Although mitigation is not warranted, staying abreast of remedial activities in the neighborhood, and the actions of responsible parties, would be advisable based on the contaminant concentrations in the groundwater and the sub-slab soil gas.  Re-testing may also be recommended if any changes occur in the residence that could complete the VI pathway (e.g. installation of a sump pit, french drain, etc.).  Additionally (and unofficially), providing some literature to the occupants on the long-term use of candles (and other indoor air contaminants including mothballs, nail polish, etc.) may also be a nice gesture!

In future posts for this VII series, we’ll take a look at some mitigation options, and elaborate on “effective communication techniques” with homeowners.  Stay tuned.  

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. For further information regarding the Vapor Intrusion Investigation process, please don't hesitate to contact us. tfrancis@cardinallsrp.com     

DowDupont Merger "Environmental" Expectations

With news of the merger / $130Billion "Megadeal" between Dupont and Dow Chemical, and proposal to split into three groups (specialty products, agriculture, materials), job reductions are anticipated, 16 directors would be established, and shareholders would hold 50% of DowDupont.  However, what should be expected for the environmental liabilities associated with each "former" Giant?  Should we expect the same optimism for Pompton Lakes that was presented for Dupont's proposed Chemours spinoff company earlier in the year?   How about in West Virginia?  Realistically, let’s hope that there are minimal delays in the remedial progress (including assignments of the remedial managers), as the corporate lawyers, regulators, consultants, and experts sort it out, and most importantly let's hope that the safety (and future) of those that are/were directly affected from past environmental releases are kept paramount.