Atlantic Builders Convention Legal Trends – Part II Environmental Law

1. Atlantic Builders ConventionLegal Trends – Part IIEnvironmental Law Site Remediation Reform Act (SRRA) and Licensed Site Remediation Professionals (LSRPs) March 29, 2012 Presented by David Restaino, Esq.

2. 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”

3. 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

4. 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?

5. Timeframes & Guidance • Regulatory and Mandatory Timeframes • Timely completion of the remedial investigation • “Compliance assistance alert” letters • Remind responsible parties to submit required reports by 3-1-2012 (1st "mandatory" remediation time frame established by SRRA) • Deadline applies if began remediation before 3-1-2010 • 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

6. 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)

7. Remedial Priority System (RPS) • N.J.S.A. 58:10-23.16 • 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

8. 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

9. “No Further Action” Case • I/M/O Crompton Colors, Dkt. No. A-5703-08T1 (App. Div., Oct. 27, 2011) • Potential vapor intrusion (V.I.) on adjacent site • 1996 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

10. 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

11. 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

12. Contact Information David Restaino, Esq. 609.895.6701 drestaino@foxrothschild.com