Tagged: LSRP

NJDEP Proposes New Rules for Site Cleanups

On August 15, 2011, the New Jersey Department of Environmental Protection (NJDEP) issued proposed Final Rules to implement the Site Remediation Reform Act (SRRA) adopted in May 2009. These rules are intended to be the final implementation step in the phased transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by Licensed Site Remediation Professionals (LSRPs). Instead of NJDEP overseeing every step of a cleanup, the LSRP, licensed by a 13-member Licensed Site Remediation Professional Board with investigative and disciplinary powers, is responsible for making day-to-day decisions about a clean-up. Certain categories of cleanups remain under NJDEP oversight, such as where the responsible party has a history of non-compliance or has failed to meet mandatory deadlines. The rule proposal appeared in the New Jersey Register on August 15, 2011 and can be viewed online. Comments can be submitted until October 14, 2011.

NJICLE Holds its Annual Environmental Law Section Forum

On the weekend of June 24-26, 2011, the New Jersey Institute of Continuing Legal Education (“NJICLE”) in cooperation with the New Jersey State Bar Association (“NJSBA”), and New Jersey Corporate Counsel Association, held its annual Environmental Law Section Forum Weekend (“the Forum”). Taking place in Avalon, New Jersey, the Forum featured three days of seminars covering various hot-button environmental topics including, Funding for Remediating Sites, Vapor Intrusion, the LSRP Program, Non-Governmental Organizations’ Perspectives on Issues and Resolutions, the well-known NJDEP v. Occidental case also referred to as the Lower Passaic River litigation, Climate Change, and rounded out the weekend with two programs on Ethical Issues including Alternative Fee Arrangements and Multi-Party Settlements.

NJDEP Seeks Early Input on Revisions to Site Cleanup Rules

The New Jersey Department of Environmental Protection is seeking input from all interested stakeholders as it develops proposed revisions to three separate sets of regulations that govern site cleanups: the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”) rules,which were drafted to implement the Site Remediation Reform Act; the regulations covering cleanups under the Industrial Site Recovery Act (“ISRA”); and the rules for cleanups involving underground storage tanks. NJDEP’s call for public input represents an unusual opportunity to affect the agency’s plans as the proposals are being drafted. Three members of the Gibbons Environmental Team have already published a detailed analysis of important issues raised by NJDEP’s working drafts.

USEPA Soliciting Comments on Guidance for Institutional Controls

Institutional controls, regulatory limits on human activity at a site, go by many names. The Department of Defense uses the term “land use controls.” ASTM E2091-00 has elected to use the phase “activity and use limitations.” Traditional real estate lawyers often think in terms of “covenants” or “easements.” Here in New Jersey, the Site Remediation Program uses the term “Deed Notice,” while the Freshwater Wetlands Permit Program has adopted the term “Conservation Restriction or Easement,” N.J.A.C. 7:7A-1.4. Whatever name they go by, institutional controls are intended to regulate human behavior and are used to supplement environmental remediation efforts by reducing the risk of unintended exposure to residual contamination. As a result, institutional controls are critical to the redevelopment of contaminated real estate and cost-effective clean-ups.

What is NJ’s LSRP?

After over a year since its creation, the nature of New Jersey’s Licensed Site Remediation Professional (LSRP) is still unclear. The program, signed into law in May 2009, removes the responsibility for oversight of clean-ups of contaminated sites from the New Jersey Department of Environmental Protection (NJDEP) to a cadre of licensed privately paid professionals. NJDEP will retain direct oversight of more complex sites and will resume direct oversight of LSRP sites under certain circumstances. It will take some time for the kinks in the program to be worked out. Depending on who you speak to, the view of what the LSRP is differs.

Muddied Waters – EPA’s Stormwater Rules for Construction Projects

Roman lawyers were timed by water clocks which they realized could be slowed by the addition of dirt or sand and thereby gaining more time to argue. Hence lawyers are often cited for “muddying the waters.” In the case challenging the US Environmental Protection Agency’s stormwater rules for construction sites, it is the court that has muddied the waters. By holding the suit in abeyance, but keeping the problematic standard in place, the Seventh Circuit Court of Appeals has managed to confuse all of the parties.

USEPA Issues Plan for Encouraging Reuse of Land Fills and Mines for Renewable Energy Development

On October 15, the United States Environmental Protection Agency (“USEPA”) released a draft plan addressing its RE Powering Americas Land Initiative. The Initiative is designed to encourage development of renewable energy projects on current and formerly contaminated land and mine sites. The plan focuses on providing useful resources for communities, developers, industry, state and local governments or anyone interested in reusing such sites for renewable energy development.

NJDEP Proposes Relief From Site Remediation Reform Act Requirements

On October 4, 2010, the New Jersey Department of Environmental Protection (NJDEP) formally proposed revisions to the Site Remediation Reform Act’s (SRRA) interim rules. The revisions impact two important components of the interim rules: remediation deadlines and vapor intrusion investigations. These technical amendments are based upon stakeholder input and are intended to reduce the burden on the regulated community and New Jersey’s newly minted Licensed Site Remediation Professionals (LSRPs).

The Lighter Side of LSRP: Opportunity to Reduce Remediation Funding Source in New Jersey

With the advent of New Jersey’s LSRP program comes an added financial benefit for environmental remediation matters requiring a remediation funding source (“RFS”). There is an opportunity to save on the statutory annual 1% surcharge on an RFS, especially useful for those sites subject to the requirements of the Industrial Site Recovery Act.

NJ LSRPs Open to Frivolous Claims

Despite the new licensing program for environmental consultants in New Jersey, they still remain open to professional tort claims without the necessity of an affidavit of merit. As required by N.J.S.A. 2A:53A-27, a plaintiff making a claim for malpractice or negligence against a “licensed person” must provide an, “affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.”