Draft DEP Guidance Calls For Local Zoning Approval for Cleanups that Could Delay or Block Remediation or Development Projects?

October 22nd, 2009 | Posted by: Christopher DeGrezia 0| comments:

DEP Guidance - Need for Local Zoning ApprovalBy Ellen Radow Sadat, Esq.  &  Joseph Schmidt, Esq. 

The New Jersey Department of Environmental Protection (”DEP”) is taking another weapon out of its abundant arsenal, which may make it harder to implement reasonable remedial actions and delay cleanups.  Under draft guidance, titled “Requirements for Remedial Actions Rendering Properties Unusable,” issued on October 5, 2009, DEP plans to implement a seemingly innocuous provision of the Site Remediation Reform Act (“SRRA”):

The department may disapprove the selection of a remedial action for a site on which the proposed remedial action will render the property unusable for future development or for recreational use.  (Section 47(g)(1) of SRRA). 

DEP’s plans to implement this provision are far from innocuous and could become effective as soon as November 2, 2009, when DEP must adopt Interim Regulations. [Footnote 1]  Under the proposed Guidance, DEP requires the responsible party to obtain zoning approval from local and or regional entities (the Highlands Commission, Pinelands Commission, etc.) when DEP determines that the a selected remedy may render the property “unusable” for future development or recreational use.

The real issues is how DEP defines “unusable,” which includes the following remedial components:

  • permanent fencing or barriers that preclude access;
  • treatment systems (wells and associated plumbing) that occupy greater than 20% of the developable land;
  • interred material, capping systems or containment systems that present structural challenges/impediments for greater than 20% of the developable land;
  • remedial actions that result in 30% or greater slope over 20% or more of the developable land
  • remaining levels of contamination that impose regulatory limitations on site reuse, such as PCB contamination as subject to the federal Toxic Substances Control Act, or radioactive materials;
  • remaining physical hazards such as munitions and explosives of concern (“MEC”); and
  • conditions that would result in an Immediate Environmental Concern (“IEC”) if the property is developed including, but not limited to, vapor intrusion issues that cannot be addressed with engineering controls, and acute contaminant concentrations.

Clearly, DEP’s identification of remedies that may render a property “unusable” includes many commonly implemented remedial actions that previously have been approved by DEP as protective of public health and the environment, and may not render the property as “unusable.”  For example, just because a treatment system occupies 20% of the developable parts of the property, does not mean that the remaining 80% of the property is “unusable” nor is the 20% with the treatment system necessarily “unusable.”    DEP’s proposed interpretation of “unusable for future development.” is simply overly-broad.

DEP’s objectives in implementing this statutory authority are threefold.  First, DEP wants to try to prevent another “Kiddie College,” where local approvals were issued for a day-care facility at a former thermometer manufacturing facility and elevated mercury levels later were found in many children.  Second, DEP wants to encourage the future development of properties and the generation of tax ratables.  Where DEP believes that remedial actions may compromise the prospects of ratables, DEP wants local involvement.  Finally, DEP is looking for every opportunity to promote and, if necessary, coerce the use of permanent and unrestricted cleanups.  These motives become more apparent as one reviews the other requirements in the Guidance. 

For example, the SRRA says nothing about involving local planning and zoning boards in the determination of whether a remedy renders a property “unusable”.  However, the Guidance provides that if a remediating party proposes to implement one of the remedial actions that may  render the property “unusable”, the party must:

  • notify DEP and the municipality and any regional authority, “as appropriate”;
  • appear at public hearing to discuss the remedial action, if a public official requests a hearing; and
  • not proceed with the proposed remedy without local/regional approval, “as appropriate”

DEP proposes these onerous public outreach requirements, despite the fact that: a)  DEP recently adopted public outreach requirements to educate and advise the public about every remedial site in New Jersey; and b) the scope of the public hearing has not been limited to a discussion about whether the proposed remedy renders a property “unusable” under local/regional zoning ordinances.  Further, there are not standards or criteria for local/regional approval of the remedy or when that approval is “appropriate.”

In the absence of review criteria, one can imagine a “delay” or “denial” by a local/regional board, with no clear basis for a remediating party to address either situation.  In addition, when such approvals are sought, would a local/regional zoning board attempt to evaluate a remedial action?   Would an applicant be required to pay the board’s environmental consultant to review the proposed remedy? 

As an “incentive” to insure local/regional review occurs, whenever any remedy which may render the property “unusable” is implemented, DEP proposes to audit the remedial case.  If DEP finds that the local/regional approval has not been obtained, DEP will invalidate any remedial approval  (Remedial Action Outcome (“RAO”)) that is issued by a Licensed Site Remediation Professional (“LSRP”), and require the remediating party and LSRP to modify the remedial action as directed by the Department.  The ability of DEP to modify the remedy as directed likely would result in a more “permanent” remedial action, which probably will come with a very high price tag. 

Simply put, DEP has established Guidance to discourage the use of certain remedial actions, by categorizing them as possibly “rendering the property as unusable.”  Before granting local/regional zoning boards with a new set of powers,  DEP and the regulated community would be better served by using the legislative process to propose amendments to the Municipal Law Use Law.  During that process, there could be a full debate of both DEP’s proposed designation of remedies that may render properties unusable and the pros and cons of the zoning board review.  Further,  the appropriate zoning board review criteria could be established.
 
Interested parties need to make their voices heard soon in order to influence this proposed remedial action review authority by local/regional zoning authorities.  DEP has indicated that it will be accepting stakeholder comment on this Guidance.  Therefore you may want to send your comments to Irene Kropp, Assistant Commissioner for the DEP Site Remediation Program or Ken Kloo, Administrator of the DEP Brownfields Remediation & Reuse Program.  A copy of the Guidance is attached to this link.

If you would like further information, please contact Ellen Radow Sadat, Esq.Joseph Schmidt, Esq. or any other Drinker Biddle attorney.

  1. Footnote:  The Interim Rules will be published in the New Jersey Register and will be valid for 18 months.  Before the end of the 18 months, DEP must propose rules that are subject to public comments and then adopt those rules in accordance with the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

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