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.

Environmental Pricing: Lowest Price & The Race to the Bottom

In the Mid-Atlantic area, there are many good, reputable environmental consulting firms that do honest work and put in the effort to solve the complex situations that we’re often presented with…and given the industrial & manufacturing history here (and geology), they can be challenging, but offering the lowest price is a race to the bottom that often leads to disaster and soured client-consultant relationships.

This is very common in public bidding opportunities (e.g. Request for Proposals), and is not limited to environmental consultants.  The success rate is generally pretty high when going with a lowest price strategy; although many towns, cities, municipalities have the authority to pass on the lowest bid if they deem a respondent to be more qualified or better suited to achieve the desired results…at an acceptable cost.  It also means that they can select the incumbent if the price is right, thus making their selection process that much easier (and truly minimizing the opportunities for other small businesses).  Cardinal Environmental covered this topic in our January blog post “Should Small Businesses Pursue Requests for Proposals?,” but the same principles hold true when local businesses are searching for a reputable environmental consultant to help them through a difficult situation, whether it’s due diligence, an Underground Storage Tank (UST) removal, or Licensed Site Remediation Professional (LSRP) services.

Experienced firms typically understand that communicating a realistic, or probable outcome to a prospective client along with estimated, and realistic projected costs increases the trust-factor, and the perceived value you bring to the table.  Conversely, there are also many firms (experienced and inexperienced) that will provide a low bid or low cost (with too much fine print in their contracts), simply to secure the work.  Unfortunately, a complex Site’s difficulties usually surface over a short time-period leaving the consultant and client scrambling to identify how much more money is needed, how much longer, etc.  This tactic ultimately impacts the public perception of the environmental consulting industry, but does that mean you should always throw out the lowest price?  Probably not.  It means that you should understand the proposed scope of work, prior to signing that contract, which goes back to a familiar theme that we stress at Cardinal Environmental: effective communication.  Understand what you’re paying for and what the expectations are!

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 environmental solutions and/or LSRP services, please don’t hesitate to contact us at tfrancis@cardinalLSRP.com or www.cardinalLSRP.com. 

Phase I ESA Quirks Volume III: Farm Dumps

To continue with our Phase I Environmental Site Assessment (ESA) “Quirk” series, let’s expose a Recognized Environmental Concern (REC) that can easily be missed if you’re not careful, and attentive: Farm Dumps…and more specifically, those “solid waste” dump areas.  

Similar to our previous posts (Phase I ESA Quirks Volume I: Historic Deeds, and Volume II: Stained Concrete), where we identified how significant the smallest pieces of information can oftentimes be, that remote dump area in the back 40 of a farm is usually lurking…and hopefully you find it.  Now, farms will typically have many RECs when conducting due diligence, but solid waste dump areas on a farm may not be as obvious for the investigator or Environmental Professional (EP). Even experienced practitioners can miss them (especially if that dump is actually a landfilled area). Unfortunately, not identifying a dump area could have significant ramifications down the road, so keep your eyes open and pose the question to the property owner, farmer, tenant, or whoever may have knowledge of dumping.  In lieu of obtaining useful information, during a site walk keep your eyes open for these areas (just to name a few): 

• Low-lying areas.
• Areas with relatively new to medium tree or brush growth.
• Areas with no growth (or stressed vegetation).
• Embankments.
• Sloped areas near streams or creeks.
• Areas adjacent to access roads (or dead ends).
• Old dry wells, foundations / basements, vaults, or septic tanks.
• Behind buildings/structures.
• Miscellaneous objects “protruding” from the ground surface (not always a “no brainer” as solid waste could be scattered over large areas).

The ultimate goal is to identify the where, why, and what in these situations and ascertain the likelihood that the contents of that solid waste resulted in a release to the subsurface soils (or groundwater). Also, taking a deeper look usually isn’t that difficult, but the investigator should be prepared to do some bush-whacking, and digging, if the situation presents itself.  

*For all of the practitioners, real estate professionals, and lenders, let us know what your war stories are for the infamous farm-dump areas found during your due diligence projects…and more interestingly, what happened when they were found “after the fact?”  

We hope that you find these posts informative, and relatively useful, and your feedback is always welcome. Stay tuned for future Phase I ESA tips and tidbits in the upcoming weeks…as there are plenty of lessons and unique observations to be shared, which could ultimately make our jobs easier!  

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.

Get That Compass out!

I’m not a Boy Scout, Girl Scout, Eagle Scout…or any sort of scout for that matter, but somewhere along the journey I learned how to use a compass.   A skill that has served me well…professionally for nearly 20 years now when working in the field.  It has been particularly useful when conducting due diligence, or completing a soil & groundwater investigation when controls are limited…but in the crowded northeast, those projects where you feel like you’re in the middle of nowhere seem to be limited these days.  Similarly, with so many GPS gadgets available to guide us, you’d think that unless you were a “scout” why would you need an actual compass in your toolbox.  That’s old school…but timeless. 

There has been more than one occasion where the only tool I had at my disposal was a beat up site plan (with barely legible “proposed” soil boring markings), and limited site controls, so for all environmental practitioners, I challenge each of you to spend a few minutes with your staff (senior & junior) and cover the basics including Determining Bearing & Heading, Triangulation, etc.  Put down the GPS unit, get out that site plan, and work through it.   It’s a valuable skill, and one that can be quite beneficial when honing your field judgment skills, and hopefully help to minimize your reliance on the electronics!  

Stay tuned for future posts on various “field” topics in the upcoming weeks…as there are plenty of lessons and unique observations to be shared, which could ultimately make our jobs easier and each of us a little wiser.

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.

Phase I ESA Quirks Volume II: Stained Concrete

To continue with our Phase I Environmental Site Assessment (ESA) “Quirk” series, let’s take a quick look at a common issue that is often overlooked or under-valued: Stained Concrete. Similar to our previous post (Phase I ESA Quirks Volume I: Historic Deeds), many times when conducting Phase I ESAs or Preliminary Assessments (New Jersey) you encounter interesting bits of information, or scenarios, but how you interpret and utilize it can significantly impact your project, including that small concrete stain that appears insignificant.

Generally when conducting due diligence you encounter stained concrete.  It’s fairly common, and could be in an auto repair shop, manufacturing facility, or any number of other facilities with varying uses. Usually the occasional small spill that is cleaned up rather quickly, could fall under a de minimis category, or an Environmental Professional (EP) may deem it a Recognized Environmental Concern (REC) depending on the severity.  In either situation, this should prompt the investigator to the next round of questions (or considerations) including:

 How did it get there?

What caused the stain?

How large of an area is stained?

Duration?

Condition of the concrete?

The ultimate goal is to ascertain the likelihood of the contents of that stain or spill getting to the subsurface soils (or groundwater), but take into consideration the goals of your client, especially the future end use(s) and whether that stained concrete will be removed as part of a site’s redevelopment.  This doesn’t necessarily mean you need to recommend an elaborate Phase II investigation; however, you also shouldn’t assume that the stain is insignificant.  Many inexperienced professionals (or experienced individuals for that matter) tend to overlook that fact that concrete is porous, which could be costly in some circumstances.   It may be in great condition, but even small spills that occur over a long period of time should be given close consideration.  Similarly, the complications of testing, handling, and disposing of PCB-impacted concrete (for example) could have drastic effects on a project’s cost and schedule.

Along with the above, and possibly more concerning are the brand new concrete floors or floors with that nice and shiny epoxy coat: Why were they repaired or replaced? What happened at those locations previously?

All of the above questions are those that need to be answered regardless of the due diligence platform if one is to provide true value to their client. Know where to look, who to ask, and don’t fall into the “Concrete is in good condition, no additional investigation necessary” trap.  Taking a deeper look usually isn’t that difficult, and you’ll thank yourself later if you were able to discover an issue early in the process.

Stay tuned for future Phase I ESA tips and tidbits in the upcoming weeks…as there are plenty of lessons and unique observations to be shared, which could ultimately make our jobs easier!  

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.

Phase I ESA Quirks Volume I: Historic Deeds

Oftentimes when conducting Phase I Environmental Site Assessments or Preliminary Assessments (in New Jersey) you run into some interesting bits of information…you just need to know where to look, and who to ask. Sanborn Maps and Property Record Cards usually have some Easter Eggs hidden in them. Other times you hit roadblocks, or have to deal with cantankerous individuals, but either way it’s always an adventure (even for the supposedly easy projects).  

For this new series, we’ll unearth some obscure finds and possibly a tip or two…just to keep the brain stimulated! 

In this first volume, what was expected to be a relatively easy review of a property’s ownership history, turned into a hunting expedition into several deed books at the County offices.  A couple of hours later, some answers were identified, along with some excellent passages from a 1913 survey (old “metes & bounds”) that was included in the deed:

The first sentence of the main paragraph was great: Beginning at a large hickory tree standing about a chain + a half from the road that leads from …   Looking further down you get this: …from thence runs by Cornell’s line north two degrees west thirty-one chains + four then links to stone in David Kline’s line…

Now, I’m not a surveyor, so I did some quick research and compared some old files & figures…prior to conducting my site visit. The key factor here?  A chain’s length = 66feet.  Why would I ever know that? 

When I brought this info to the field along with a current tax map, I was then able to (with a little bit of head scratching) locate a spectacular 100 year old hickory tree and eventually one of my site’s corners.   Not the most exact for my purposes, but a great start. (Note: finding the “stone” or any stone for that matter was less successful, but not unexpected). As we all know, understanding “off and on-site” is pretty important, so a couple of measurements were taken just to confirm the findings which were surprisingly (still) accurate, and then off I went to locate the other property corners and eventually complete my perimeter inspection.  A little time consuming (more so from the hilly terrain), but the old information from that deed was quite useful. There are a number of useful tips from this particular effort, but, here are a couple that stood out from this phase of the work: 

1.     Utilize all sources to confirm property lines (especially in a wooded area with a general lack of controls).

2.     Attempt to confirm “old” information / measurement as inaccuracies are common. 

3.     Know how to use a compass. Most smartphones have them…but do you know how to “use” it for field purposes?

4.     Dust off your field guide on tree identification!

(disclaimer: if the identification of property lines are critical to your project, consider asking your surveyor for a little help.)

Stay tuned for future Phase I ESA tips and tidbits in the upcoming weeks…as there are plenty of lessons and unique observations to be shared, which could ultimately make our jobs easier! 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.

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. 

How Much and How Long Will it Take: Volume III-Phase II ESA’s

As a continuation of our discussion on Phase I Environmental Site Assessments (Phase 1’s), we’ll take a brief look at the next step, or Phase II Environmental Site Assessments (Phase II’s).  As always, there is plenty of research, data, and guidance on this topic but the objective of this series is to simplify the discussion, and provide some essential recommendations).  

Phase I’s are often the due diligence starting point for a broad range of properties both inside and outside of New Jersey and are generally conducted to o enable a party to satisfy one the CERCLA landowner liability protections.  Phase I’s also follow a more standardized approach, and essentially mean the same to property owners, insurers, lenders, etc.; however, the same cannot be said for Phase II’s.  When initially established in 1997, the ASTM standard (E1903-97) linked “follow-up” investigations to a Phase I.  Over time, and through numerous discussions & iterations, a new ASTM standard was established for Phase II’s (E1903-11) which allowed practitioners and users to “tailor” the approach to their specific goals and objectives.  

As any practitioner can attest to, it is rare that any two (2) sites are alike and standardizing an approach was neither practical, or in most cases, cost-effective, but what about differences in professional judgment? We looked at this topic in a previous post “LSRPs & Professional Judgment,” and there are similarities when conducting Phase II’s, as the variable nature in professional judgment will dictate how much will it cost and how long a Phase II will it take.  Prior to starting any Phase II, the key points / questions to consider include:  

·       Who is the “User” and what is their risk tolerance? 

·       What are the goals and objectives of your client (“User”)?

·    What prior site information is available (e.g. Phase I ESA) and what is its quality? (Note: relying on a poorly            conducted Phase I by another consultant / investigator is never recommended!)

Any practitioner can look at a recent Phase I (and the twenty [20] or so Recognized Environmental Conditions [RECs] that may have been identified) and recommend a subsurface investigation including soil borings and sampling, or groundwater sampling.  Seasoned professionals will answer the above questions first, and through mutual agreement with the User, define an appropriate scope of work, and on many occasions reduce the cost and duration of a Phase II investigation. Those individuals or corporations that are more risk-averse may want all the bells and whistles, which is fine, as that generally correlates with an increased level of confidence for any given site, but it’s not always necessary.  Many Users are willing to accept manageable liabilities or risks, but unwilling to accept others (e.g. PCB or Chlorinated Solvent contamination).  As a result, it is imperative for the investigator to understand this in advance of conducting a Phase II investigation.

These limited scope investigations that only take between 1-day and 1-week can be quite beneficial to the User, provided they meet the objectives of the Phase II and the results obtained are usable and/or consistent with expectations.  Conversely, an unfocused (and poorly conducted) investigation that investigates every REC, takes over 4 weeks, and costs upwards of $50,00, may not provide the information that your client (or User) was looking to obtain…which gets you back to the topic of “quality over quantity,” and stresses the importance of effective communication.   

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