NJDEP – More forward steps to help move brownfields sites along

 Although not always known to realtors and property investors, NJDEP has, and continues to implement significant updates to its underlying Site Remediation Program, which helps LSRPs do their jobs, to clean up and remediate contaminated sites. The two key elements of the Program are updates to significant Technical Guidance Documents and Consultation. First, we are pleased to present information on the latest Guidance Documents which can help properties and buyers move forward during the investigation and remediation stages of site redevelopment.

New technical guidance:

Planning for and Response to Catastrophic Events at Contaminated Sites

The New Jersey Department of Environmental Protection (NJDEP) has announced the availability of new Technical Guidance: "Planning for and Response to Catastrophic Events at Contaminated Sites" (June 2016).

In the wake of Superstorm Sandy, representatives from NJDEP along with LSRPs and persons responsible for conducting remediation (PRCRs) participated in a post-storm exercise to review, analyze and learn from the experience. The "Planning for and Response to Catastrophic Events at Contaminated Sites" Technical Guidance presents lessons learned from this exercise and identifies improvements that can be made to enhance remedial system resiliency and prepare for future catastrophic events.

Topics covered in the Guidance related to catastrophic events, include:

•Factors to consider in planning for and responding to catastrophic events;

•Incorporating resiliency into the design and implementation of site remedies;

•Retro-fitting vulnerable sites to decrease disruption to existing systems;

•Establishing communication networks, chain-of-command structures, and procedures to be used during catastrophic events; and

•How to re-assess systems and review lessons learned to better prepare for future catastrophic events. A Case Study is also presented to help illustrate these concepts.

Given the increase in storm frequency the Garden State is experiencing, this Guidance is welcomed.

NJDEP Landfills Investigation Technical Guidance

NJDEP has announced that the Landfills Investigation Technical Guidance has been revised from version 1.2 to version 1.3. Revisions include correction of grammatical errors, updating of website links and references, revised contact information for committee members, and updating references for guidance documents and regulations. Minor wording changes were also made to increase clarity, and two sections in the SI and RI chapters regarding geophysical surveys were merged to reduce redundancy. This Guidance helps particularly at older, closed landfills being considered for solar farm development.

NJDEP Announces Revised Technical Guidance on Historically Applied Pesticides

The Historically Applied Pesticides Site Technical Guidance has been revised from Version 1.0 to Version 2.0. Revisions to the document included a revised definition for Historically Applied Pesticides (HAP) and added definitions for the terms "agriculture" and "golf course." A section was also added to allow the deferral of HAP remediation at active agricultural sites and active golf courses where sampling results indicate HAP are present at levels exceeding applicable standards. At these sites, remediation of the HAP-related contaminants can be deferred until the property is no longer used for agricultural purposes or as an active golf course. Remediation of all other contamination is still required in accordance with established regulatory and mandatory timeframes. As part of this technical guidance update, the Department is also making available a new Historically Applied Pesticides (HAP) Deferral Request Form.

This Guidance helps LSRPs move work along at residential development sites.

NJDEP Announces Revised Vapor Intrusion Technical Guidance

NJDEP has announced the availability of revised Vapor Intrusion Technical Guidance:

The Vapor Intrusion Technical (VIT) Guidance has been revised from Version 3.1 (March 2013) to Version 4.0 (August 2016). Revisions to the document include a more streamlined presentation that focuses on the most relevant VI issues. Portions of the main text and several appendices have been moved to the NJDEP VI website at www.nj.gov/dep/srp/guidance/vaporintrusion/. New sections have been added on Access, Field Analysis, and Proactive Mitigation. Two new checklists were added to assist Investigators during the design of a mitigation system and monitoring/maintenance inspections. The most significant change in the VIT Guidance involves a new science-based approach to handling VI investigations at petroleum contaminated sites. This new paradigm shift in screening petroleum vapor intrusion (PVI) sites using vertical screening distance is based on the USEPA PVI empirical database and the Interstate Technology and Regulatory Council (ITRC) PVI Guidance.This Guidance builds on what we have learned in the last decade about soil vapor concerns at solvent release and gasoline petroleum release sites.Where to Find Guidance DocumentsTechnical Guidance Documents can be accessed on the Site Remediation webpage in the Guidance Library (www.nj.gov/dep/srp/guidance/).Use of Guidance on Existing Projects Note: Technical guidance may be used immediately upon issuance. However, the Department recognizes the challenge of using newly issued or revised technical guidance when a remediation affected by the guidance may have already been conducted or is currently in progress. To provide for the reasonable implementation of new or revised technical guidance, the Department will allow a 6-month "phase-in" period between the date the technical guidance is issued and the time it should be used.

LEGACY SITES AND CONSULTATION

One of the most important aspects of New Jersey’s Site Remediation Program is dealing with Legacy Sites. Legacy Sites are those which were already in the DEP’s cleanup program before the Site Remediation Program started, about five years ago. Legacy Sites pose special challenges because DEP had a large backlog of technical reports submitted to NJDEP which were not reviewed. That means that at some sites LSRPs cannot always easily figure out exactly what NJDEP did and did not approve to address existing areas of concern, and approvals from NJDEP at older sites may be unclear as to what regulations and cleanup standards were in effect at the time. Although LSRPs have wide latitude to determine what is a current protective remedy, DEP inspects properties and projects, and it is not always clear or agreed upon what a protective remedy is, particularly at older sites. One of the recommendations RT made to NJDEP based on experience with other licensed professionals states, including Ohio, Massachusetts and Connecticut, was to allow ongoing consultation with DEP officials when questions arise. We have found that the consultation program NJDEP implements is not only very helpful, but also allows technical and regulatory continuity of what is called the “historical knowledge” of how the regulatory programs were implemented prior to the LSRP Program. The Consultation program also helps, as there are sometimes sites which have area of concern issues which are not covered by Guidance, regulation or law. In some instances, decisions pass to other parts of NJDEP Programs when questions arise which would otherwise not be clear to the LSRP. The consultation is for Licensed Site Remediation Professionals to obtain top level professional information on the regulatory program, but not for decisions to be made by the NJDEP person completing the consultation. The consultation relates to technical and regulatory issues which the LSRP is expected to document, and then the LSRP makes the decision as to implementation of findings from the consultation, decides whether a waiver is necessary and the LSRP then makes the final decision on the protectiveness of the remedy.

Our LSRPs have found consultation with NJDEP very helpful, particularly at the many Legacy Sites that we have taken through the LSRP Program and sites where work continues due to the complexity and the extent of cleanup.

Conclusion

Prior to the start of the LSRP Program, the updates and changes in regulations which occurred were infrequent and they had the potential to become outdated too quickly. It is clear that the LSRP Program has allowed senior NJDEP officials to work with the LSRPs by completing consultation, which is very helpful. NJDEP Officials also have time to keep up with the latest Guidance needed moving forward, to allow the most appropriate cleanups to occur, which are protective in the manner that NJDEP expects. One of the most important upcoming Guidance Documents, according to RT’s Trenton contacts, is the Tentatively Identified Compounds Guidance, which will affect hundreds of sites which have been waiting for a solution related to low level releases from underground storage tanks. Unlike other states, NJDEP regulates tentatively identified compounds, not just measured total compound concentrations in soil and groundwater, such as benzene, naphthalene, and MTBE. Many site owners and tank operators have become frustrated, as frequently concentrations of all regulated compounds have all but disappeared, but low levels of tentatively identified compounds remain. The Guidance is expected to address what can be done at sites where tentatively identified compounds exceed standards, but the discharge is considered not to be of substantial concern. It is hoped that when the Guidance is issued, cases can be closed out more efficiently than looking into consultation and other compliance options, which can be costly even though the problem with an historic tank release is judged to be relatively minor.

We at RT hope that forward and ongoing progress in updating Guidance and regulations continue, and we thank DEP for keeping Consultation ongoing, which is critical to resolving issues of particularly historic environmental importance at our thousands of Legacy Sites which continue to be addressed throughout the State of New Jersey. Gary Brown is President of RT Environmental Services, Inc.

For assistance with New Jersey’s Brownfield and Site Remediation sites, you can contact Chris Ward at 856-467-2276 ext. 113, email: cward@rtenv.com or Gary Brown at 610-265-1510 ext. 234, email: gbrown@rtenv.com.

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