The Hidden Dangers of Undeveloped Land

Developing farmland might appear, on the surface, to be free of environmental risks and liabilities.  If a field has only ever been a farm field or a forest, what environmental risks could a developer possibly face?  The answer lies in the field itself: pesticides.

In 1997 New Jersey created the Historic Pesticide Contamination Task Force (“Task Force”) to evaluate the potential environmental impacts and health effects of exposure to historic pesticide contamination.  The findings of the Task Force were published in 1999.  The Task Force recommended the sampling of former agricultural areas, particularly in areas where soils will be exposed to children (i.e. schools, daycare centers and playgrounds).  Indeed, under the Site Remediation Reform Act (“SRRA”) former agricultural land is considered an area of concern when the future use of a property includes sensitive populations.  Addendum 2 of the Task Force report lists the concentrations of pesticides included in the NJDEP Soil Cleanup Criteria (“SCC”).  While the Task Force report remains an informative document to be used in assessing a property, the pesticide concentrations included in the addenda are no longer the most up-to-date since the implementation of the New Jersey Soil Remediation Standards in June 2008.  For this reason, it is critical that environmental professionals communicate with the laboratories completing the soil analysis.  The pesticide chlordane is an excellent example of the potential pitfalls to not clearly communicating with the laboratory about project needs.

The old pesticide list required investigators to analyze soil samples for alpha-chlordane (CAS No. 5103-71-9) and gamma-chlordane (CAS No. 5103-74-2) individually.  The current NJ Soil Remediation Standards (“SRS,” last updated October 3, 2011) require the analysis of total chlordane (CAS No. 57-74-9) instead of the individual compounds.  According to N.J.A.C. 7:26D (Table 1A and 1B), total chlordane is calculated by adding together alpha- and gamma-chlordane.

When requesting chlordane from an analytical laboratory, it is critical that you specify the correct chlordane and CAS number.  Unless otherwise specified, the laboratory may report technical chlordane (CAS No. 12789-03-6) which is a mixture of 23 different compounds that include chlordane isomers.  In our experience we have seen analytical results in which technical chlordane is more than double the concentration of total chlordane.

The development of farmland remains an attractive option to avoid environmental risks; however mistaking technical chlordane for total chlordane could mean the difference between compliant soil samples and a delayed project due to repeated rounds of soil sampling.

If you have any questions about Site Remediation, Soil Contamination or the NJDEP, feel free to email me at jmanuel@repsg.com or leave a comment below!

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.