By John C. Ryder, P.E., P.P., P.W.S., C.M.E.    Effective November 2, 2009, the New Jersey Department of Environmental Protection (NJDEP) has amended the Freshwater Wetlands Protection Act Rules to expanded the list of Freshwater Wetlands Statewide General Permits (SGP) requiring mitigation as follows: SGP No. 2 (Underground utility lines); SGP No. 6 (Isolated wetlands); SGP Nos. 10A & 10B (Road crossings); SGP No. 11 (Outfalls & intake structures); SGP No. 21 (Above ground utility lines); and SGP 27 (Redevelopment of previously disturbed areas).  Wetlands permits previously requiring mitigation included: SGP No. 4 (Hazardous site investigation and cleanup); SGP No. 5 (Landfill closures); and all Individual Permits (IP).  » Read the rest of this entry «

Although the Site Remediation Reform Act (SRRA) gives Licensed Site Remediation Professionals (LSRPs) substantial authority once the exclusive purview of NJDEP, not all of the functions held by NJDEP case managers under the pre-SRRA process for remediation will be transferred to the LSRP.  Such is the case with Alternate Remediation Standards (ARS).  An ARS is a remediation standard developed for use at a given site based on site-specific conditions and risks that is often less restrictive than adopted standards.  One of the laws modified by SRRA continues to allow the use of ARS in lieu of the established minimum soil remediation standards for residential or non-residential use.  » Read the rest of this entry «

Currently, NJDEP requires a biennial certification for engineering and institutional controls.  Every two years, a certification must be prepared, signed and submitted to NJDEP reporting on the monitoring, inspection and maintenance for caps, covers, fences, signs, Classification Exception Areas (CEAs), deed notices and other engineering and institutional controls implemented as part of the remediation of a contaminated site.  Under the Site Remediation Reform Act (SRRA), NJDEP will now be implementing a new permit program for this purpose.  NJDEP is wrestling with the best way to move forward with the transition of these requirements into a permit program. » Read the rest of this entry «

The Department of Environmental Protection is proposing amendments to the Coastal Permit Program rules, N.J.A.C. 7:7, which contain the coastal general permits and the permits-by-rule.  Under this proposal, the Department is proposing a new permit-by-rule and two new coastal general permits for the construction of wind turbines on land; a new permit-by-rule for the construction of solar panels; and is describing the situations in which construction of a wind turbine or solar panel does not require a coastal permit. The Department is also proposing amendments to the Coastal Zone Management rules, N.J.A.C. 7:7E, to facilitate the construction of wind turbines in the coastal zone in appropriate locations. » Read the rest of this entry «

By 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”): » Read the rest of this entry «

There are two significant provisions in the Site Remediation Reform Act (SRRA) that will impact how NJDEP pursues its claims for Natural Resource Damages (NRD). The first is a fairly obvious change to existing law (the Statute of Limitations) setting deadlines for the state to bring a claim for NRD.  The second, and more significant provision, stems from a subtle reference nestled amid NJDEP’s newly defined powers of direct remedial oversight.  » Read the rest of this entry «

The Site Remediation Reform Act (SRRA) will affect the choice and pace of remedies. SRRA provides that, for any site that is to be used for residential purposes, a licensed day care center, a public or private school, or a charter school, the Licensed Site Remediation Professional (LSRP) must ensure that the person responsible for conducting the remediation completes the remediation in a manner that complies with either unrestricted use standards, a soon to be established “Presumptive Remedy,” or an alternative remedy approved by the NJDEP. » Read the rest of this entry «

As with any new and major environmental law, the Site Remediation Reform Act (SRRA) had its share of critics from all ends of the political spectrum.  The New Jersey environmental activist community was among the most vocal objectors to certain aspects of the proposed Licensed Site Remediation Professional (LSRP) legislation.  Executive Order No. 140 was designed by the Governor’s Office to ease the concerns of the environmental groups. » Read the rest of this entry «

The Site Remediation Reform Act (SRRA) will have significant impacts on commercial transactions.  In addition to the learning curve in familiarizing sellers, buyers and lenders with new terminology and the loss of some of the familiar mechanisms, such as the No Further Action (NFA) letter issued by NJDEP and the signed Covenant Not to Sue set forth in a NFA, SRRA requires some new strategic thinking by parties to a transaction.  Particular issues include broader obligations to report and remediate contamination and an impact on funding options. » Read the rest of this entry «

SRRA effectively abolishes the Voluntary Cleanup Program (VCP) for responsible parties by 1) creating an affirmative obligation to remediate the discharge of a hazardous substance and 2) requiring remediation activities to be performed in accordance with mandatory remediation time frames and/or expedited site specific time frames.

Prior to the enactment of SRRA, owners and operators of contaminated properties in New Jersey had several potential remedial options, depending upon the circumstances: » Read the rest of this entry «

Although the Site Remediation Reform Act (SRRA) will not have a dramatic impact on the Industrial Site Recovery Act (ISRA) program as it does with the remediation process in general, SRRA has not left the ISRA program untouched.  SRRA has added some additional options with respect to ISRA compliance.

Remediation Certification

The most significant new addition to ISRA is the opportunity to use a Remediation Certification, rather than a Remediation Agreement (formerly an Administrative Consent Order), to close a transaction prior to achieving ISRA compliance.  » Read the rest of this entry «

If things go according to NJDEP’s plans, all but a handful of sites will proceed through remediation at a much faster pace under the direction of newly minted Licensed Site Remediation Professionals (LSRPs) and without intervention by NJDEP (except through performance of the occasional audit).  LSRPs will meet mandatory time frames, implement LSRP-selected remedies or any presumptive remedies, where applicable, and issue the Response Action Outcome (RAO) confirming that remediation is complete.  In a few circumstances, however, NJDEP will remain involved in and have direct oversight of the remediation process.  SRRA makes that oversight mandatory in certain cases. In other cases, NJDEP will be able to assume direct oversight at its discretion. » Read the rest of this entry «