An Inside Look at New Jersey’s Key Environmental Issues

An Inside Look at New Jersey’s Key Environmental Issues

NEW JERSEY—WITH ITS SUPERfund sites, brownfield properties and legacy of old, contaminated industrial structures—offers a rich environment for firms that can address these key issues, such as environmental attorneys, engineers, labs, consultants and
LSRPs. COMMERCE asked these experts to discuss the legislative and regulatory
climate, plus offer insights about how New Jersey firms can prepare for 2018.

Riker Danzig Scherer Hyland & Perretti LLP
Steve Senior, Esq., Partner, Environmental Group

“New Jersey lawmakers should build on the success of the LSRP [Licensed Site Remediation Professional] program,” says Steve Senior, Esq., a partner in the Environmental Group of law firm Riker Danzig. “One positive step could involve expanding an LSRP’s authority to issue remedial action permits, which is currently up to the NJDEP. For example, a remedial action permit is required when a remedial action
includes leaving soil contamination in place at concentrations exceeding the existing soil remediation standards, and getting the permit from the NJDEP can be a slow process.” Senior, who is involved in stakeholder discussions focused on enhancing the cleanup and redevelopment of brownfields in the state, would also like to see more clarity—and fewer business burdens—in the state’s food and electronic waste recycling efforts.

New Jersey recently overhauled its electronic waste program, he notes, pointing out that the new law increases the onus and cost on electronic manufacturers to provide for recycling electronic waste. “It seems likely that New Jersey also will place a significant burden of food waste reduction on the commercial sector, since on July 21,
Governor Chris Christie signed legislation adopting the USEPA’s goal of cutting
the amount of food waste in New Jersey in half by 2030.”

Separate legislation already has been proposed to require large food waste generators to recycle their waste, Senior adds. “Under this legislation, a large food waste generator includes any commercial food wholesaler, supermarket, resort, conference center, banquet hall, restaurant, educational or religious institution, military installation, prison, hospital, medical facility or casino.”

He says lawmakers “should consider the practical consequences, including the need for enhanced recycling and collection infrastructure and appropriate guidance on best practices.” Senior’s advice: affected businesses should stay engaged as lawmakers and agencies implement the new proposals.

Connell Foley LLP
Agnes Antonian, Esq., Chair of the Environmental Law Group

The establishment of New Jersey’s Licensed Site Remediation Professional (LSRP) program was a breath of fresh air to many owners of contaminated properties, since it meant that they could use LSRPs to do their cleanup, instead of submitting to a
backlogged NJDEP review.

“But owners of certain contaminated properties who did not meet a May 2014—or, if extended, May 27, 2016— deadline to complete their remedial investigation lost that privilege,” explains Antonian. “As a result, environmental matters are driving even more
legal activity.”

One issue involves parties that did not meet the initial deadline. Many were working with attorneys to try to gain an extension by demonstrating that they acted in good faith, but missed the deadline due to circumstances beyond their control, such as discovering thatthe contamination was worse than initially thought, or they were delayed by natural disasters.

“If the second deadline was missed, parties must navigate, with the help of legal counsel, involving burdensome obligations under direct oversight of the NJDEP,” she explains. “Those that met their deadline are now racing with the assistance of their lawyers to meet their deadlines for completion of remedial action.”

Other developments—such as a recent interpretation by the state Site Remediation
Professional Licensing Board that clarified the meaning of “independent professional judgment”—have also prompted more individuals and businesses to contact their lawyers for advice, she adds.
That’s not all. The lingering issue of complex, multi-party sediment site cleanups—which encompasses major polluted waterways—took on new urgency with the recent appointment of Scott Pruitt as USEPA administrator.

“Administrator Pruitt has made it clear that he wants to speed up the cleanup of Superfund and other contaminated sites,” says Antonian. “It’s unclear what impact that will have on these complex sites.” She reports that another important site remediation issue, which is handled directly by the NJDEP, is the remediation of orphan “chromium” sites. One such site, a property in North Jersey, is owned by a Connell Foley client. It was contaminated with chromium—a hard and brittle metal that resists tarnishing—in the 1950s when chrome historic fill material was used as bedding for a sewer
pipeline crossing the property.

“Our law firm has worked with the state and one of the former companies responsible for the cleanup of the contamination,” she says. “Because the chromium is so deep, a seal is being established over it, and we have implemented appropriate deed restrictions to prevent contact with the buried contaminated soil in the future.”

In addition to matters involving contaminated sites in New Jersey, Connell Foley is also involved in a heated land use case in Long Beach Township, where the firm is fighting federal, state and local agencies on behalf of three clients.

“The parties we represent own adjoining beachfront residential properties,” she explains. “The federal government previously funded some dune replenishment in front of the properties, and now officials want our clients to open up an easement on their land to create a public beach over private property in an area surrounded by rarely used public beaches. We’re defending the property owners in this case, to protect their individual rights to private property and prevent unauthorized government interference
with those rights.”

GWS Environmental Contractors Inc.
Eric Sinha, CHMM, Project Manager

New Jersey has its share of environmental issues, and one significant concern involves vapor intrusion—a silent process where contaminants in the soil or ground water, such as radon, methane and other volatile contaminants—can migrate from the sub-surface
to the indoor air above contaminated sites, according to Eric Sinha, project manager at GWS Environmental Contractors Inc.

The firm offers environmental remediation services, including tank removals, soil and ground water remediation, vapor intrusion mitigation, and other environmental contracting services to commercial and residential customers.

“New Jersey is a densely populated state, and the increasing lack of developable land contributes to a drive to redevelop contaminated sites,” he says. “Of course, that means the developers of those properties have to manage the accompanying environmental
issues that come with the properties.”

When it comes to mitigating vapor intrusion, the contamination is compounded by the fact that most new building construction is well-sealed, which is good for reducing energy waste, but also means that vapors are less likely to be dissipated by
air movement through the buildings. Instead, it tends to remain in the structures.

“The NJDEP has promulgated regulations that define indoor air quality for both residential and commercial structures,” Sinha explains. “But with more former industrial sites being repurposed as residential multifamily housing units and office spaces, the need for achieving NJDEP residential indoor air quality standards is more important than ever, both for mitigating known and current vapor intrusion risks and for potential
contamination from other sites.”

Fortunately, there are many methods and products that can be used to address the problem, says Sinha. “In the case of new construction, vapors can be suppressed by either installing an impermeable barrier or void space beneath the slab prior to pouring it. In the case of existing construction, the slab may be sealed using coatings. Both existing and new construction vapor mitigation systems require venting vapors out to the open.”

Venting involves installing sets of PVC pipes in or under a building’s slab bottom, and through the attic out to the roof. “The contaminated gases have already made their way through rock and soil, so either way they’re going to be released,” he explains. “At least we can direct them away from a living area or work space.”

GWS Environmental is currently installing 250,000 square feet of Cupolex— a sub-slab vent that is dome-shaped and creates a sub-slab void space to collect and dilute contaminants in a 27-building residential project that’s going up on a former industrial site in Avenel.

“Fans in the attic of each building will draw the vapors up and vent them away,” says Sinha. “As the population of New Jersey continues to increase, more projects like this are in the works, and the demand for vapor mitigation and other environmental remediation services is likely to continue to grow.”

Equity Environmental Engineering
Peter Jaran, P.E., LSRP, Managing Director

Companies that tackle environmentally sensitive projects in New Jersey face at least two key issues, according to Peter Jaran, managing director of Equity Environmental
Engineering, an environmental engineering and planning consulting firm.

“The first involves complying with the maze of regulations that local, state and federal agencies have in place,” he says. “The second, which is almost as challenging, is keeping up with the blizzard of changes and new guidance from the NJDEP and other agencies. One way we keep up is by staying involved with the Commerce and Industry Association of New Jersey’s Environmental Business Council. The other way is by networking with Licensed Site Remediation Professionals (LSRPs) and other people in
the environmental industry, whether regulators, consultants or contractors that we’ve come to know through the years.”

But it’s not just the volume of paperwork, Jaran adds. “One frustrating condition sometimes occurs after an LSRP completes a site remediation and then
submits a Response Action Outcome (RAO) to the NJDEP, detailing the closeout
of the remediation.”

The RAO should mark the end of the project, “however, on occasion, the NJDEP may come back with questions, months or up to three years later, which can be very frustrating and, in some cases, undermines the purpose of the LSRP program.”

Other issues include an emerging one involving per- and polyfluoroalkyl substances,
or PFAS. The designation covers a diverse group of compounds—resistant to heat, water and oil—that are used in a range of products, including carpeting, apparel, upholstery, food, paper, fire-fighting foams and metal plating.

“Normally we deal with detecting a contaminant concentration of parts per million or even billion,” says Jaran. “But the USEPA’s new regulations for PFAS establish detection levels of parts per trillion. This will be a large effort going forward, and for many years.”

Brilliant Environmental Services LLC
Philip I. Brilliant, CHMM, LSRP, Owner

The list of environmental regulations continues to grow, according to Philip I. Brilliant, owner of Brilliant Environmental Services LLC. He points out that revised water testing
requirements issued by the state Department of Children and Families could put child care centers across the state on the spot.

“Rules that went into effect require all child care centers that use public water systems to sample their water for copper and lead,” he says. “We’re doing a lot of water testing to ensure compliance. So far none of the ones we’ve checked have returned a ‘positive’—which would indicate contaminants—but since many public schools in the
state tested positive, it’s probably only a matter of time until a child care center turns up a positive result. That could be expensive for them to remediate.”

The centers are required to test their water from all faucets and other sources
used for drinking water or food preparation, and at least 50 percent of all indoor water faucets, he explains. They must to do the testing at the time of their initial application, at any renewal application, when an existing licensed center is relocated and at the discretion of the state Department of Children and Families’ Office of Licensing.

Regardless of their position in the licensing cycle, Brilliant says that all centers should go ahead and schedule the tests. “You know the requirement’s there, so you might as well get it done,” he counsels. “Also, if there is a problem, it’s better to take care of it sooner, so the children’s exposure isn’t prolonged.”

His firm is also keeping busy by helping persons responsible for remediation who are facing cleanup deadlines.

“Under New Jersey’s Site Remediation Reform Act, the NJDEP may take on direct oversight of certain cleanups that have not complied with the remediation deadlines by May 7, 2019,” he says. “We’ve been engaged to move along projects that involve removing or capping contaminated soil to beat the deadline. In some cases, the LSRP may be able to get an extension, but that’s subject to a case-by-case review by the
NJDEP.”

Dewberry
Ileana S. Ivanciu, Senior Vice President for Environmental Services

“New Jersey recognizes the urgent environmental issue of protecting our cities and citizens from storm surge and rainfall flooding,” according to Ileana Ivanciu, senior vice
president for Environmental Services at Dewberry, a national engineering and design firm. “We recently led the Environmental Impact Statement (EIS) for the $230-million Rebuild By Design Hudson River project,” an urban storm water management strategy.

Ileana Ivanciu

The EIS process included a thorough consideration of “social, economic, engineering,
and environmental factors with an extensive outreach, including resource agency coordination and public involvement,” she adds.

The Rebuild By Design Hudson River project itself is centered in the City of Hoboken, and will extend into Weehawken and Jersey City. “It takes a multifaceted approach intended to address flooding from both major storm surges and high tides, as well as from heavy rainfall events,” explains Ivanciu. “The proposed project is designed
to minimize the impacts from storm surge and rainfall flood events on the
community, including adverse impacts to public health, while providing benefits that will enhance the urban condition, and recognizing the unique challenges that exist within a highly developed urban area.”

Dale Group Inc.
Dan Borgna, Vice President, Environmental Division

The landmark legislation that streamlined environmental cleanups in New Jersey—
the Site Remediation Reform Act of 2009 (SRRA)—has helped to speed a reported 10,000 environmental cleanups that might have otherwise stalled, according to published reports.

Still, recent updates to the SRRA have muddied the waters a bit, according to Dan Borgna, vice president of the Environmental Division of Dale Group Inc., a specialized insurance broker for environmental service firms. “Before the SRRA, it was up to the NJDEP to review and sign off on all environmental investigations and cleanups,” he
explains. “The sheer volume of reviews the agency had to do resulted in a tremendous backlog and slowed down the pace of remediation.”

Many developers welcomed the SRRA, which enabled them to hire trained, private- sector Licensed Site Remediation Professionals (LSRPs) who could conduct required investigations, oversee the appropriate remedial activity, and then make their own determination as to when the site was considered “clean” for its intended future use. This seemed to be an efficient mechanism for moving contaminated sites through the cleanup process.

“Owners of contaminated properties are generally required to foot the remediation costs and, until recently, they could pay for the cleanup—which could take multiple years—as it progressed,” says Borgna. “However, under the SRRA, the NJDEP requires property owners to verify a ‘funding source’ and ‘financial assurance’ to cover the full estimated
cleanup cost up front, which sometimes runs into millions of dollars. This can create a major cash flow issue for most property owners.”

A “funding source” can be established with the creation of a trust, a letter of credit, a line of credit or an insurance policy. “While an insurance policy could be a cost-effective route, the insurance carriers have serious concerns about charging a relatively small premium for what amounts to a large cleanup exposure should something go wrong
with either the cleanup or the financial stability of the property owner,” he explains.

“Initially, a surety bond was something that we thought could be considered because of its lower cost and impact on cash flow, but bonds were not something the NJDEP was willing to accept at that time,” says Borgna. “We continue to speak with the NJDEP,
but right now there aren’t any good solutions.”

New Jersey-based companies that have direct labor working in New York State can also present insurance issues for environmental service firms. Companies that specialize in removal of asbestos, for example, have been some of the hardest hit.

“New York has some of the toughest labor laws in the country, and asbestos abatement companies in the surrounding states will often cross over into New York because that’s where the work is,” Borgna reports. “Think of it; removal of asbestos requires very cumbersome sealed suits with respirators. They then scurry up and down ladders and scaffolding, which sometimes leads to a fall. In most states, the injured employee’s
sole remedy would be to file a claim under its employer’s work comp policy to pay for the medical costs. In a case like that, the employer is then shielded from any further action.”

But under certain New York labor laws—sometimes referred to as the scaffolding laws—an injured employee may also be able to bring a suit against the property owner for failure to provide a safe work environment. “That property owner will then file a third-party action against the injured worker’s employer, seeking additional insured protection,” says Borgna. “What should have been a simple work comp claim has made its way around to the employer’s General Liability policy.”

As a result, General Liability insurance rates for asbestos and other contracting companies have quadrupled, he adds. In turn, this has priced some employers out
of the New York market, “particularly those working in the five boroughs of New York City where most of the cases are filed. This is an ongoing challenge.”

Covanta
Margretta E. Morris, Vice President, Materials Management & Community Affairs
One of the biggest environmental issues in New Jersey involves greenhouse gases and their effect on climate change, according to Margretta E. Morris, vice president, Materials Management & Community Affairs at Covanta, a global company that
provides sustainable waste and energy solutions.

“The Earth’s climate is changing in response to the increasing amount of greenhouse gases (GHG) in the atmosphere, with roughly one-third of all GHG emissions being associated with various stages of materials management,” she explains. “This includes
extracting raw materials, making them into products and dealing with manufacturing waste and end-of-life disposal.”

New Jersey currently recycles 40 percent of its waste, but is still sending 75 percent of the remaining waste—more than 4 million tons—to landfills, says Morris. “Landfills
are the largest source of man-made methane, which has been found to be over 30 times more potent than carbon dioxide according to the International Panel on Climate Change. By following the waste management hierarchy—waste reduction and reuse,
recycling and energy recovery—and in addition, recognizing waste as a resource, we can reduce the number of products we have to make from new materials, lessen our dependence on fossil fuel fired electricity and keep material out of landfills.”

Some positive steps are being taken. “The New Jersey Board of Public Utilities is working to improve energy resiliency and the emergency preparedness by establishing a number of microgrids throughout the state,” says Morris. “Covanta, along with the Camden County Municipal Utility Authority (CCMUA), is working to connect our
waste-to-energy facility with their wastewater treatment facility and other critical
facilities within the City of Camden.”

She says this unique “microgrid” system, which can act independent of or in parallel with the main power grid would provide electric power to CCMUA from Covanta and, in turn, provide treated waste water to Covanta, “allowing us to reduce our use of potable water and reduce stress on the local aquifer system. The BPU-sponsored microgrid will
be an exceptional model of public/private collaboration and sustainability that will increase efficiency and resiliency for critical utility infrastructure.”

The company is also engaged in other environmental projects. “Covanta Essex in Newark recently completed an extensive emissions control system upgrade for its three boilers, replacing electrostatic precipitators with state-of-the-art ‘baghouses’ that remove particulate matter from combustion gases,” she explains. “Similar to a household vacuum cleaner, but on a larger scale, a baghouse is equipped with fabric filters that capture dust, particles and other pollutants.”

While the facility operated well below its permit limits with the former system and was never out of compliance, the upgraded emissions control technology has improved the environmental performance of the facility even further, lowering some emissions by more than 90 percent.

“The facility also supports the local community by providing a sustainable waste management system that processes 2,800 tons of municipal solid waste per day into approximately 65 megawatts of clean energy,” says Morris. “This is enough to power 45,000 homes annually.”

Greenbaum, Rowe, Smith & Davis LLP
David B. Farer, Esq., Chair, Environmental Department

In the face of federal inaction on climate change and greenhouse gases, “New Jersey
should resume its role as an environmental leader and join states such as California and New York that have committed to take the reduction of greenhouse
gas emissions into their own hands,” says David B. Farer, chair of the Environmental Department of the law firm Greenbaum, Rowe, Smith & Davis LLP, and immediate past
president of the American College of Environmental Lawyers. The state should also

Hands holding new growth plant. Mature man in the garden.

“retake its seat among our sister states in the Regional Greenhouse Gas Initiative and recommit to reduction in carbon dioxide emissions pursuant to the RGGI’s cap and trade program,” he adds, noting that coastal flooding and other natural disasters should also be top priorities for New Jersey officials.

“Sandy is five years behind us and we have yet to fully recover,” Farer reports. “The disasters of Harvey and Irma again thrust the dangers front and center as just the latest examples of severe weather events. The coasts must be protected and fortified.”

LAN Associates
Chris Guddemi, P.L.S., LEED AP BD+CS, Director of Land Use Regulation Services

“Flooding is a major issue in New Jersey,” says Chris Guddemi, director of land use regulation services at LAN Associates, an architecture and engineering services firm. “There are actually two types: tidal flooding, like we saw with Superstorm Sandy where
ocean waters surged and flooded coastal areas; and riverine flooding, where an excess rainfall can cause rivers like the Passaic, Raritan or Delaware to spill over their banks and threaten inland areas.”

Fortunately, he adds, the NJDEP is “unique in the way it regulates development in or near flood hazard areas. FEMA distributes flood maps that establish risks for neighborhoods—and insurance companies use them to help set rates—but just because you’re not in a FEMA-designated flood area doesn’t mean you’re safe.”

Instead, Guddemi says, under the Flood Hazard Area Control Act, the NJDEP “considers any water course with a drainage area greater than 50 acres as being at risk of floods, and regulates any development in those districts. It’s more conservative than FEMA’s approach.”

He notes that this approach played a big role when LAN worked with an elementary school in Middlesex County that “was in dire need of additional office and classroom space. Although the institution was not on any FEMA flood map, streams ran through the property and the NJDEP deemed it at risk of flooding.”

LAN Associates developed a computerized “stream model” that predicted possible water runoff based on past extreme weather events, and submitted it to the NJDEP, which verified the calculations. “The school incorporated our calculations into the design for the addition so it would not encroach into the flood hazard area we had modeled.”

Rutter & Roy, LLP
Christine Roy, Esq., Partner

Christine Roy, Esq., a partner in the law firm of Rutter & Roy, LLP, represents major interstate natural gas pipeline companies, advising them on various aspects of construction projects, including Green Acres diversions and streamlining the regulatory process to prevent delays.

“Most people don’t realize that a great number of Green Acres tracts have utilities or pipelines on them,” explains Roy. “Many of these were built during the 1950s, when the properties were not preserved. This is yet another example of why it can be extremely difficult to identify Green Acres restricted land.”

The Green Acres Program was created 55 years ago to protect open space and natural resources. As part of the NJDEP, the program has preserved more than 680,000 acres since it was founded.

“Green-Acres restricted properties are not always easy to identify because many times they are not listed in the public records,” explains Roy.

The Recreation and Open Space Inventory (ROSI) is the master list of Green Acres-encumbered properties in each municipality for both funded and unfunded parkland.

“There are any number of reasons why the municipality may not have reported it or it is property owned by a nonprofit organization that is not required to submit a ROSI,” says Roy. “We’ve found that determining a property’s designation requires in-depth research
and knowing what to look for.”

Rutter & Roy uses an internal checklist that includes the ROSI, title search and information from the municipality, as well as Green Acres files and records in Trenton.

“From the outset, we presume that if it’s municipally owned land, it’s Green-Acres restricted land. While there is a great deal of municipally owned property that is not designated as Green Acres, we always begin with the presumption that the property
is Green Acres-restricted.”

The law firm has been doing these searches for more than 30 years.

“Ultimately, the designation is determined by having a conversation with the local unit (i.e. county, township, etc.),” explains Roy. “But we’ve seen gray areas where information was not readily available, and the towns involved could not accurately determine a property’s designation. If we cannot reach an agreement with the
local unit, we turn to the Green Acres staff to make the final determination in
conjunction with the local unit.”

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