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Legal Trends – Part II © 2012 Fox Rothschild Atlantic Builders Convention Legal Trends – Part II Environmental Law Site Remediation Reform Act (SRRA) and Licensed Site Remediation Professionals (LSRPs) March 29, 2012 Presented by David Restaino, Esq.
Legal Trends – Part II © 2012 Fox Rothschild SRRA Overview SRRA Adopted May 2009 Rules – final rules expected soon Guidance “Exception” Substantive SRRA Provisions - Use of LSRPs mandatory (May 7, 2012) - Mandatory timeframes & direct oversight - “Affirmative” duty to remediate - Remedial Priority System (RPS) “scores”
Legal Trends – Part II © 2012 Fox Rothschild LSRPs Licensed Site Remediation Professionals - Best Professional Judgment - LSRP Licensing Board Board determines final licensing standards - LSRPs Control Cleanup, Not DEP - Quicker Cleanups ? - Issuance of RAOs and not NFAs - DEP audits select sites / select LSRPs Three-year review period
Legal Trends – Part II © 2012 Fox Rothschild Hiring the Firm, Getting the LSRP How to oversee the LSRP - Hire two? - Hire one LSRP to oversee a non-LSRP? - What if you are buyer, and seller has LSRP obligation? Insurance - Three-year review period What if the LSRP switches firms?
Legal Trends – Part II © 2012 Fox Rothschild Timeframes & Guidance Regulatory and Mandatory Timeframes - Timely completion of the remedial investigation - “Compliance assistance alert” letters Remind responsible parties to submit required reports by (1st "mandatory" remediation time frame established by SRRA) Deadline applies if began remediation before Filing may include: Receptor Evaluation, Light Non-Aqueous Phase Liquid (LNAPL) Remediation Reporting Form, etc. Direct DEP Oversight Immediate Environmental Concerns (IECs) Guidance, Guidance, Guidance
Legal Trends – Part II © 2012 Fox Rothschild Current Status of Guidance - Over 40 Guidance Documents Clean Fill / Alternate Fill Historic Fill Immediate Environmental Concern (IEC) Monitored Natural Attenuation Preliminary Assessment Presumptive and Alternative Remedy Vapor Intrusion Funds and Grants Classification Exception Area (CEA) Public Notification Remedial Action Permits (soils, groundwater) Issuance of Response Action Outcome (RAO)
Legal Trends – Part II © 2012 Fox Rothschild Remedial Priority System (RPS) N.J.S.A. 58: Ranks sites best to worst, categories 1 to 5 To be used for DEP direct oversight All sites ranked except: - homeowner heating oil tanks of 2,000-gallons or less - sites for which the DEP’s Bureau of Operations and Maintenance Monitoring is overseeing long-term operations - sites with unknown sources
Legal Trends – Part II © 2012 Fox Rothschild RPS Process Responsible party receives DEP letter with score - Computer model that utilizes geographic data bases and layers, receptor information and site specific data - Wells, pathways and receptors - “Surrogate value” when no data available 60 days to provide feedback on score Final scores released to public Fall 2012
Legal Trends – Part II © 2012 Fox Rothschild “No Further Action” Case I/M/O Crompton Colors, Dkt. No. A T1 (App. Div., Oct. 27, 2011) - Potential vapor intrusion (V.I.) on adjacent site and 2002 NFAs rescinded in attempt to gain V.I. study - Can DEP rescind tenant’s NFA to gain V.I. study, when the contamination is from historic fill & regional groundwater plume rather than the tenant’s activities? - Appellant’s request for hearing was denied below
Legal Trends – Part II © 2012 Fox Rothschild Crompton Colors Appellate Division holding: - Limits decision to request for administrative hearing to challenge factual basis for DEP’s decision rescinding NFA and directing submission of a workplan - Rejects DEP characterization of its actions as “mere requests” - Because DEP directives cannot be ignored, a hearing is required Compare: Sackett v. EPA, U.S. Sup. Ct. March 21, 2012
Legal Trends – Part II © 2012 Fox Rothschild Natural Resource Damages (NRDs) DEP v. Essex Chemical Corp. (App. Div., March 20, 2012) - Defendant spent $5 million to remediate - Site Remediation Program was “very pleased” with defendant’s remediation efforts and did not consider 20-year remediation to be unreasonable in time - Affirms trial court: Plaintiff failed to meet its burden of proof - Plaintiff’s experts’ testimony deemed not credible as to $5.7MM primary restoration damages (seeking a new cleanup plan and costs for same) - Plaintiff’s experts’ testimony deemed not credible as to $2.3MM compensatory restoration damages (seeking $ to purchase raw land) Improper to use asking prices and not sales prices Improper to use a 25-mile radius from site Properties chosen were not comparable to the injured land
Legal Trends – Part II © 2012 Fox Rothschild Contact Information David Restaino, Esq
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