NJ Annual Fees in the Simplest Terms

NJDEP LogoThe New Jersey Department of Environmental Protection (NJDEP) has replaced the past “hour-by-hour” oversight billing with a Site Remediation LSRP Annual Fee. This offers some advantages in terms of project budget planning, since the fees are fixed and predictable after you wade through confusing nuances. Your  Licensed Site Remediation Professional (LSRP) will guide you. If you have not retained a LSRP for your existing case, you need one.

The Way This Works
Your LSRP calculates your project’s annual fees for you and submits this information to the NJDEP in an Annual Fee Form. The cost of the fee is based on the number of contaminated areas of concern that have not been fully remediated as defined in N.J.A.C. 7:26E “NJ Tech Rule” last amended May 2012.

The annual fees must continue to be paid until all areas of concern have received a Response Action Outcome (similar to a No Further Action). Deadlines and other details regarding the fees are found in the Administrative Requirements for Remediation of Contaminated Sites Rule “ARRCS Rule”. The fee breakdown is as follows:

  • 0-1 Contaminated Areas of Concern $450.00
  • 2-10 Contaminated Areas of Concern $900.00
  • 11-20 Contaminated Areas of Concern $5,000.00
  • >20 Contaminated Areas of Concern $9,500.00

In addition to these amounts there are additional “contaminated media” fees of $1,400 (each) assessed if groundwater, sediment or surface water is impacted.  The Department estimates that most sites fall in Category 2. If no Annual Fee Form has been submitted, you will probably get a Site Remediation LSRP Annual Fee invoice for $900.00. Special considerations for underground storage tank sites apply, consult your LSRP.

This is not the sum total of your NJDEP fees, however. You are still responsible for past due oversight fees, fees related to remediation permits, and NJDEP direct oversight fees, if applicable. A handy link to check your project for past due fees is found here: Financial Obligation Summary Report. If your project’s closure strategy involves use of an engineering control (like a cap) or institutional control (like a Classification Exception Area (CEA)) you will continue to have ongoing fees.

Proper calculation and timely payment of fees is based on a good Preliminary Site Assessment and Site Investigation. If you receive a  Site Remediation LSRP Annual Fee  invoice from the NJDEP, forward it to your LSRP for review prior to paying it and don’t ignore notices. The NJDEP has the ability to assess fines and fees for non-compliance. Please feel free to contact me at cdrake@repsg.com with LSRP questions or leave a comment below.

 

Reviewing the ASTM Phase I ESA Standard

ASTM LogoThe American Society for Testing and Materials (ASTM) is a standards organization headquartered right outside of Philadelphia in Conshohocken, PA. ASTM publishes technical standards for a range of products, materials, and services. REPSG conducts our famous Phase I Environmental Site Assessments (ESAs) in accordance with the ASTM Phase I Standard entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” This standard is commonly referenced as E 1527.

ASTM E 1527 was last revised in 2005, when the United State Environmental Protection Agency (USEPA) released the ‘All Appropriate Inquiries Rule’. According to the ASTM by laws, standards must be updated at least every eight years, and beginning last fall, an ASTM Task Group has been meeting to once again review the text of E 1527. Revisions to the standard have been proposed that would strengthen and clarify the requirements of E 1527.

Some of the key proposed updates to E 1527 were highlighted by Environmental Data Resources (EDR). Three of the proposed revisions include:

  • Introduction of the term “Controlled Recognized Environmental Condition.” Past soil and/or groundwater contamination which had been remediated would be classified as a CREC. This designation will be addition to recognized environmental conditions (RECs) and historical recognized environmental conditions (hRECs).
  • Expanded discussion on how vapor encroachment should be addressed in a Phase I ESA. In the new E 1527 draft, a vapor plume is proposed to be treated as any other source of contamination. (ASTM published a vapor encroachment standard in 2010 entitled “Standard Guide for Vapor Encroachment on Property Involved in Real Estate Transactions” E 2600-10. Stay tuned for upcoming blog posts about vapor!)
  • Clarification about when regulatory file reviews need to be completed during the course of a Phase I ESA.

The ASTM Task Group is anticipated to publish the updated E 1527 in 2013, but the standard will have to be approved by the USEPA.

As E 1527 evolves, REPSG will continue to provide the most current, highest quality reporting to its clients. If you have any questions about what these updates will mean for you and your property, drop us a line! Each of us on the Phase I team have copies of E 1527 and E 2600 within arms’ reach (and no, I’m not kidding!)

NJ Appeals Court Rules NJDEP Acted Beyond Their Powers under ISRA and SRRA

A New Jersey state appeals court ruling issued Friday, July 6, 2012 said the New Jersey Department of Environmental Protection (NJDEP) does not always have the authority to require owners or operators of industrial sites to certify the land is “clean” before it is sold and redeveloped. Since the passage of the Environmental Cleanup Responsibility Act (ECRA) in 1983, the NJDEP has required property owners to remediate contamination before the land could be sold, transferred or the industrial facility operating at the site could be closed. Many laws have been issued in the past decades to define and revise this cleanup process, including the Industrial Site Remediation Act (ISRA) of 1993 and, most recently, the Site Remediation Reform Act (SRRA) of 2009.

According to the ruling by the three-judge panel of the Superior court of New Jersey, The NJDEP went too far when officials informed Des Champs Laboratories Inc. that in order to sell their Livingston, NJ property, the company had to certify that, to the best of the owners’ knowledge, contamination on the property had fallen below a certain level. The NJDEP was enforcing a provision of NJAC 7:26B 5.9, most recently amended by the NJDEP in May of 2012.

The court’s decision stated that:

 “We conclude that the department, despite its important regulatory role and its expertise over environmental matters, acted in the present context beyond its legislatively delegated powers,”

The three-judge appellate panel also said that no action can be taken on the sites for 30 days, giving time for a potential appeal to the state Supreme Court.

The case centered on the NJDEP’s rejection of Des Champs’ request for a ‘de minimis’ quantity exemption from ISRA’s requirement for site investigation. The court ruled that the state cannot require a landowner to investigate soil and groundwater conditions at a property when the landowner has affirmed that only insignificant (‘de minimus’) amounts of hazardous materials were historically used at the site.  However, the court was clear that the ruling was not intended to limit the NJDEP’s authority to enforce other environmental statutes, most notably the Spill Act. The NJDEP has not announced whether or not they intend to appeal the ruling.

REPSG will continue to follow this story and the response of the legal community to this ruling. Look for follow up posts. Please feel free to post your comments and responses here. Any confidential questions regarding ISRA compliance, SRRA or the recent May 2012 amendments or issues on your projects can be directed to blog@repsg.com and one of our qualified professionals will respond quickly.