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New Rules, Same Commitment as Licensed Site Remediation Professionals Face the Future.

LSRPA Grows to Face New Jersey’s Future

Throughout 2019, the Licensed Site Remediation Professionals Association (LSRPA) welcomed more members, raised more money for scholarships and offered more education for LSRPs than ever before.

“It was a year of growth and maturity for the organization, and we added significant infrastructure to support our membership,” said LSRPA president for 2019, Caryn Barnes, a Principal with Langan, at the third annual LSRPA New Jersey Site Remediation Conference. About 600 Licensed Site Remediation Professionals (LSRPs) and others interested in site remediation attended the two-day conference in New Brunswick this February.

LSRPA president for 2020 Scott Drew, a Senior Principal Environmental Scientist with Geosyntec Consultants, said the association and LSRPs will continue in the future to elevate the profession using good science, transparency and diversity of thought. The LSRPA represents more than 800 members, including more than 75% of all LSRPs.

To meet the needs of its members, the LSRPA has created new committees to promote career growth for aspiring professionals and explore issues related to contaminants of emerging concern. It also will do more to reach out to college students, conservation organizations, and environmental justice groups, Drew said.

The New Jersey Department of Environmental Protection (NJDEP) credits LSRPs with closing out more than 14,000 project sites, and closing out more cases, including more complex cases, than before the Site Remediation Reform Act (SRRA) was implemented in 2009, said NJDEP Assistant Commissioner Mark Pedersen. The SRRA created the LSRP program.

NJDEP Chief of Staff Shawn LaTourette, the keynote speaker at the conference, said the success of the LSRP program has allowed the NJDEP to focus on other priorities, especially the impacts of climate change. “The LSRP program is a powerful force multiplier,” he said.

As NJDEP moves forward, it will increasingly call on businesses to work with government to face the challenges of climate change. “We have much more to gain together when we acknowledge common interests and common opportunities,” he said.

During the conference, the LSRPA membership selected seven members for either renewed terms or new terms on its board: Andrew Robins, William Call, Candace Baker, Scott Drew, David Morris, John Scagnelli, and Ken Haduch.

LSRPs, who help guide responsible parties through New Jersey’s regulations and standards, are required to renew their licenses every three years. As part of the requirements for license renewal, they must complete continuing education courses.

At the conference, LSRPs were able to take courses on a variety of topics, including ethics, per- and polyfluoroalkyl substances (PFAS), in-situ thermal remediation technologies, brownfields, changes in the site remediation laws, and professional judgment.


New Law Brings Public Notification Changes

The new Site Remediation Reform Act amendments enhance the requirements for responsible parties to notify officials and the public about environmental investigations and cleanups taking place in their communities.

Although the law was signed in August 2019, the NJDEP still must propose regulations to enact these changes.

Public notification has always been part of site remediation requirements. As a policy, the NJDEP states on its Site Remediation Program website that it considers effective communications to be “critical to a successful investigation and cleanup.”

The changes in the site remediation law update and clarify some of the existing public notification requirements. For someone who is looking for information about a contaminated site, it means they should be able to receive more information sooner in the remediation process.

One change in the law requires public notification prior to the start of the remedial investigation of a site. Previously, New Jersey’s laws and regulations required public notification only before the start of the remedial action.

Remedial investigation means taking extensive examination of soils and groundwater to determine the limits of contaminants. Remedial action, in contrast, takes place after the investigation and design of the remedy has been completed.

The concern expressed by members of the community to NJDEP was that months or years can go by between the remedial investigation and the start of the remedial action. So, the change in the law will require that the public receive information much earlier than it has in the past.

The change to the statute also now requires that municipal, county and local agencies receive information on environmental investigations.

Notifications can be either a posted sign or a letter sent to property owners and tenants within 200 feet of the site. The statute now could allow the NJDEP to require both depending on the property and the circumstances. Consistent with previous requirements, a fact sheet also is required when off-site impacts are confirmed.

In addition to the requirement for public notification, the responsible party also is required under the changes in the law to respond to written and emailed requests for information from the public. For example, the response could be a written summary status report from the LSRP, but the law requires that the information be responsive to the inquiry.

This change in the law would allow the public to receive current information directly from the responsible party or LSRP without the need to wait for additional reports to be filed.


When Should You Retain an LSRP?

By Candace Baker, LSRP, Langan

The Site Remediation Reform Act (SRRA) has changed. So, when does someone need to retain a Licensed Site Remediation Professional (LSRP)?

LSRPs were created by the original SRRA more than 10 years ago. Since then, those in the business and regulated communities have come to know that LSRPs conduct environmental remediation in New Jersey and issue final remediation documents in the form of Response Action Outcomes (RAOs).

As stated in the original law, you must retain an LSRP to conduct remediation when you become responsible for or accept responsibility for conducting remediation pursuant to a statute, rule or order. With amendments adopted in 2019, the statute expanded the definition of remediation and specifically prohibited any remediation not performed or supervised by an LSRP.

Some general scenarios where an LSRP would be required include discharging or becoming responsible for discharging a hazardous substance under the “Spill Act”; owning or operating an underground storage tank where a discharge has or is suspected to have occurred; agreeing to or being ordered to address a discharge by the New Jersey Department of Environmental Protection (NJDEP); or owning or operating an industrial establishment that will change ownership or end operations.

There are now three exemptions to the requirement to hire an LSRP.

You do not need to retain an LSRP to complete the remediation of an unregulated heating oil tank at a residence or a tank used for heating oil with a capacity below 2,000 gallons at non-residential sites. And, if you are conducting due diligence as a prospective purchaser, you do not need to retain an LSRP.

A new exemption in SRRA 2.0 states that you do not need to retain an LSRP to confirm or evaluate remediation work overseen by another LSRP as long as the activity is not required by law, is not conducted in order to obtain an RAO, and is not conducted to address a discharge.

If remediation has been completed at your site, but contamination has been left in place with a Remedial Action Permit, you must retain an LSRP to maintain continuous compliance with the permit for as long as the contamination remains above the applicable standards. This will apply if the site requires a deed notice to restrict future use or a classification exception area to define impacts in ground water.


How Does a Deed Notice Impact My Property?

By Chris Valligny, LSRP, Advanced GeoServices

A deed notice is an institutional control that notifies the public and subsequent owners of any restricted use on a property due to environmental contamination.

Although deed notices are an option any time contamination above the NJDEP residential standards will remain on site, there is no hard and fast rule for when a deed notice is acceptable, as long as it is protective of human health and the environment.

A deed notice can be part of a solution with engineering controls such as a cap or fencing. For example, a school site would require an engineering control for soil contamination above the residential standards, but an industrial site may not. Both the Licensed Site Remediation Professional (LSRP) and New Jersey Department of Environenmental Protection (NJDEP) must agree the restriction is protective.

Before it can be applied, the property owner must consent to the placement of a deed notice. Once it is also approved by the LSRP, the deed notice is filed with the county clerk or recording office. The completed deed notice will include descriptions of the contaminants, the footprint of the restricted areas, and any engineering controls installed to prevent exposure to the contamination.

Some properties have deed notices established prior to 2009, but the rules have changed since then. Now, responsible parties who received No Further Action approvals from NJDEP are required to hire an LSRP and obtain a Remedial Action Permit.

The deed notice must be in place before the responsible party can apply for the Remedial Action Permit. Once it is approved by the NJDEP, the LSRP issues a Limited Restricted Use or Restricted Use Response Action Outcome as the final remediation document.

Remedial Action Permits require inspections and submittals every two years of certifications to the NJDEP that the remediation is still protective of human health and the environment.

A deed notice does not prevent an owner from selling the property. The NJDEP provides forms to submit if the property owner, billing contact, or responsible party change, or if Remedial Action Permit modifications are required.

It is also possible to remove a deed notice from a property if it is no longer needed. To terminate the deed notice, an LSRP will be required to petition NJDEP for approval, and then terminate the deed notice with the county.


New Clarity Clears Way for Opportunity Zones

By Charlene Drake, LSRP, Langan

Will the latest economic development tool, the Opportunity Zone program, help stimulate redevelopment of brownfields sites? The answer last year seemed an obvious “yes.”

But LSRPs working across New Jersey report that they did not see a surge in brownfields investing attributable to the Opportunity Zone program.

Why not? The promise of a boon to brownfields development from a flood of investments towards distressed communities was diminished by uncertainty or confusion.

Brownfields are underused or neglected sites with contaminants often found in soil, groundwater or air. The EPA estimates that there are more than 450,000 brownfields throughout the country.

Redeveloping those brownfields can be costly and time consuming, so the Opportunity Zone program is a welcome boost.

In 2019, the EPA’s Office of Brownfields and Land Revitalization asked the IRS for clarification regarding eligibility tests of particular importance to brownfields projects. The final regulations on Opportunity Zones released by the U.S. Treasury and the IRS in December 2019 respond to EPA’s requests and make it clear that the Opportunity Zone program intends to benefit brownfield redevelopment.

The program seeks to reward investments that bring new businesses into qualified Opportunity Zones or improve the availability, aesthetics and value of housing. Eligible taxpayers that make long-term investment in a qualified Opportunity Zone through a qualified opportunity fund or business can realize significant tax benefits.

In order to qualify for tax benefits, the investment has to be new or substantially improved. In the new regulations, the U.S. Treasury clarifies that if the land has been vacant for five years (or three years after it was determined to be in a qualified Opportunity Zone), then investment in the property qualifies.

If, however, the development is consistent with the original use, investments may still qualify if the asset is substantially improved within a 30-month period. The new regulations specify that brownfield site assessment, and remediation and professional fees count towards the substantial improvement test.

Provided that the remediation meets basic safety standards for human health and the environment, qualified remediation expenses will count towards the cost basis of the purchased land.

With regulatory permits and approvals sometimes causing delays, another concern with the Opportunity Zone program for brownfields is the 30-month time period to reach substantial improvement. The new regulations clarify that if governmental approvals create delays, this timeframe can be extended under some circumstances.

With the haze of uncertainty lifted, or at least lessened, 2020 may bring more qualified Opportunity Zone funds to tackle the unique challenge of brownfields redevelopment.


What to Include in a Remediation Funding Source

By Ross Trube, LSRP, CDM Smith Inc.

New Jersey Department of Environmental Protection (NJDEP) regulations describe the requirements for establishing and maintaining a Remediation Funding Source or Financial Assurance, which are required for most sites undergoing remediation. Below are some common questions and answers.

What are reasonable and customary costs to include?

The Remediation Funding Source is required to be established and maintained in an amount consistent with the estimated costs to complete the remediation, as supported by a detailed remediation cost estimate.

All remediation phases through issuance of a final remediation document must be represented for all areas of concern, including impacted media. In addition, costs associated with operation, maintenance and inspection of an engineering control must be included until Financial Assurance has been established with a Remedial Action Permit or it has been documented that an engineering control will not be incorporated into the final remedial action.

Use of present worth or present net value is acceptable as long as assumptions are disclosed. NJDEP will review present value discounting on a case-by-case basis.

Should NJDEP annual fees be included in a Remediation Funding Source?

Yes. The NJDEP requires that one year’s worth of NJDEP fees and oversight costs be represented in the amount that is established and maintained.

Should the 1% surcharge component of the annual remediation fee be included?

Yes. Regulations require a surcharge in the amount equal to 1% be paid annually for a Remediation Funding Source established as a letter of credit, line of credit, remediation trust fund, surety bond or environmental insurance policy. Currently, there are no surcharges for self-guarantees. The remediation cost estimate should list the surcharge separately so that the 1% surcharge is not calculated on an RFS that already includes the 1% surcharge (i.e., “double counting”).

The surcharge fee does not apply to Financial Assurance associated with a Remedial Action Permit.

Should NJDEP oversight costs be included?

Yes. NJDEP hourly fees should only apply in certain circumstances requiring dedicated NJDEP staff, such as direct NJDEP oversight, traditional oversight or Superfund cases, immediate environmental concern cases, or emergency response cases. The Remediation Funding Source is required to be maintained in an amount that supports one year’s worth of NJDEP fees and oversight costs.

According to NJDEP, when calculating one year’s worth of oversight costs, an average of past oversight cost invoices is an appropriate estimate. If the site has not been subject to oversight costs in the past, 10% of the current year’s remedial activities is an acceptable estimate.

For additional guidance on preparing a Remediation Cost Estimate, please refer to the NJDEP “Detailed Remediation Cost Estimate Guidance” available at https://www.nj.gov/dep/srp/rfs/.


One Way the LSRPA Works for You

By Bill Hose, Assistant Executive, Director of LSRPA

The Licensed Site Remediation Professionals Association (LSRPA), which strives to further the remediation consulting profession by acting as an educational and technical resource for LSRPs, also advocates for sound science, procedure and policy with the New Jersey Department of Environmental Protection (NJDEP) by participating in stakeholder groups.

These stakeholder group interactions help to resolve technicalities and issues that could be obstacles in the efforts to remediate sites. The results help to simplify information and reduce delays in the NJDEP’s review process. It also allows all interested parties to concentrate on the outcomes for site remediation.

For example, the Case Inventory Document stakeholder group was formed in 2019 to address an NJDEP data management issue. But it has continued to work on stumbling blocks, questions, concerns and requests to improve the ease of use of the Case Inventory Document.

Currently, the stakeholder group is updating the instructions for completing the Case Inventory Document. The goal is to provide clear and concise instructions, make it more user friendly and searchable, and create a training program to be used by both LSRPs and NJDEP staff.

In early 2018, the NJDEP formed the Remedial Action Permit stakeholder committee with the goal of identifying and improving the administrative and technical deficiency rates for soil and ground water Remedial Action Permit applications. LSRPA is a significant contributor to the stakeholder effort.

Through the committee’s efforts, the permit application forms were revamped and new forms were created for clarity. Joint training was conducted by LSRPA and NJDEP in June 2019. Best of all, the NJDEP reports the new forms are improving the quality of submissions, so fewer forms need to be returned to LSRPs to be corrected.

The Remedial Action Permit stakeholder committee continues to meet with the goal of updating both the soil and ground water permit guidance in 2020.

In late 2019, NJDEP and LSRPA formed a stakeholder group to review and revise the current guidance for issuing Response Action Outcomes (RAOs). The stakeholder group is working to make the RAO guidance more user-friendly, leading to fewer deficiencies in RAO letters and forms and greater efficiency in closing remediation projects.


Maintaining the Highest Standards with Continuing Education

By Tina Layre of LSRPA

The LSRPA, through its Continuing Education Committee, each year develops and administers a comprehensive program that offers LSRPs and environmental practitioners opportunities for professional development and provides continuing education credits.

To maintain a license, each LSRP must complete 36 continuing education credits in each three-year license renewal term, including an ethics course focused on the principles and conduct of the profession. These are rigorous academic requirements by professional standards.

Continuing education also helps LSRPs stay current with the latest regulatory developments, technologies and skills required for their fields. All presentations meet statutory requirements for continuing education, and training is directed towards enhancing professional knowledge and performance for the protection of human health and the environment.

Through the LSRPA, each LSRP has access to a robust continuing education program with a variety of courses offered at many venues throughout New Jersey. The LSRPA offers 30 to 40 continuing education courses each year on an assortment of relevant and current environmental topics. Instructors are experts in their fields who bring vast knowledge, experience, and practical application to each course.

LSRPA courses also are open to other professionals involved in site remediation, including engineers and attorneys.

Besides the required ethics course, other topics for continuing education courses may include per and polyfluoroalkyl substances, technologies for treatment of groundwater contamination, or waste classification and disposal. Networking events scheduled after many of these courses are an opportunity to meet the instructors and further discuss the topics.

In addition, the continuing education curriculum includes 10 regulatory roundtable member breakfasts each year. Each breakfast program includes a presentation and open forum discussion in which each attendee is given an opportunity to identify a critical issue or problem they feel directly impacts the work of site remediation practitioners. Attendees are encouraged to provide input, share lessons learned, and seek potential solutions.

At its annual Site Remediation Conference, which this year was in February 2020, the LSRPA provided 16 courses for continuing education along with networking opportunities to share technical and regulatory knowledge and experience with environmental practitioners, regulators, industry leaders, sponsors and exhibitors.

To further enhance continuing education, the LSRPA works closely with NJDEP, and academic and professional organizations in providing collaborative training events to foster educational training and support our fellow colleagues.

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