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.

Don't Overlook Long Term Remedial Costs!

There are numerous occasions throughout New Jersey (and other states or countries for that matter) where the placement of an engineering control is selected as a remedial measure.  Typically, this is agreed to by an owner of the property as part of a remedial action, and can come in many forms including (but not limited to) caps, slurry walls, pavement, vapor barriers, and building slabs.  Even a chain link fence can be considered a viable engineering control, provided access to the “restricted area” is eliminated or reduced.   

As expected, the cost to implement a specific measure is contingent upon the type of contaminant, size of the affected area, and the long-term or end-use of the property. Capital costs can be quite steep for some complicated applications, but most estimators are quite adept at identifying them up front (and are careful to add a hefty contingency…just in case).  However, there are times when even the most skilled estimator gets hung up on the details of the remedy AND overlooks the long-term Operating & Maintenance (O&M) costs associated with the project. These costs, combined with regulatory fees could end up exceeding the actual costs of the remedy, especially for those that are on the smaller scale.

 Here’s a brief example:  

Commercial Site (Contaminant of Concern: Historic Fill)

Installation of Engineering Control (25,000 SF of Asphalt Pavement, Clean Fill, etc.): $150-$200,000

Environmental Consultant Oversight, Project Management, Deed Notice, Reporting, Etc.: $40-60,000

 Long-Term O&M & Permitting

Environmental Consultant Inspections, Project Management, Annual Repairs, Reporting, Etc.: $300-400,000

Remedial Action Permit fees (NJ), Financial Assurance (FA), Etc.: $75-$150,000

All things considered, the primary reason for the significant “long-term” cost is essentially that the remedy must be maintained for the life of the engineering control or for a 30-year duration.  Now, would it have made more economical sense to simply remove and/or treat the affect area rather than continually paying those fees…year…after year…after year?  Possibly.  For larger properties with much more significant environmental liabilities, long-term costs may be insignificant compared to the anticipated ROI. In either scenario, it is incumbent upon all practitioners (e.g. environmental professionals, engineers, property owners, developers, etc.) to capture all remedial costs early in the process…even the “lifetime” costs associated with a restricted use remedy.  **It’s also extremely beneficial for professionals in the real estate industry to have a generalized knowledge of the potential costs in their selected location and area of expertise.

Stay tuned for future posts on this topic 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 as we move to revitalize those properties in the need of the most help.

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.

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. 

Revival On Bayonne's West Side

After being stalled out for several years due to the 2008 recession, it's nice to see that Baker Residential is ready to re-start its redevelopment of the former Hi-Hat Caterers Club on Bayonne's west side.   The Hi-Hat was a fixture in Bayonne for several decades, and the tenants of the future residential development will be able to enjoy a gem on Bayonne's west side...Richard Rutkowski Park...named after the former owner of the Hi-Hat, and former Mayor of Bayonne.