please help yourself to food and drinks

The material provided herein is for informational purposes only and is not intended as legal advice or

counsel.

Environmental Site Environmental Site RemediationRemediation

LSRP vs. Environmental Consultant –LSRP vs. Environmental Consultant –Issues to Consider When Making the Issues to Consider When Making the

DecisionDecision

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Please help yourself to food and drinksPlease let us know if the room temperature is too hot or coldBathrooms are located past the reception desk on the rightPlease turn OFF your cell phonesPlease complete and return surveys at the end of the seminar

Overview of the Site Overview of the Site Remediation Reform Act Remediation Reform Act (“SRRA”)/Licensed Site (“SRRA”)/Licensed Site

Remediation Professional Remediation Professional (“LSRP”) Program and (“LSRP”) Program and

Deadlines For ComplianceDeadlines For CompliancePresented by: Martha Donovan

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Reason for Enactment of Reason for Enactment of Site Remediation Reform Site Remediation Reform Act, Which Created the Act, Which Created the

LSRP ProgramLSRP Program

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What Did MA and CT Do in What Did MA and CT Do in Order to Address Their Order to Address Their

Remediation Case Backlog Remediation Case Backlog Through Licensed Site Through Licensed Site

Remediation Professionals?Remediation Professionals?

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What is a Licensed Site What is a Licensed Site Remediation Professional in Remediation Professional in

New Jersey?New Jersey?

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The Somewhat “Bumpy” The Somewhat “Bumpy” Transition in New JerseyTransition in New Jersey

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N.J.S.A. 58:10b-1.3 - N.J.S.A. 58:10b-1.3 - Remediation of Discharge of Remediation of Discharge of

Hazardous Substance; Hazardous Substance; RequirementsRequirements

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What About the Old What About the Old Cases/Those Pre-Existing Cases/Those Pre-Existing

11/4/09, Do We Need to Obtain 11/4/09, Do We Need to Obtain an LSRP?an LSRP?

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DeadlinesDeadlinesYes, NJDEP Really Means Yes, NJDEP Really Means

ItIt

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Other Important Other Important SRRA/LSRP IssuesSRRA/LSRP Issues

Changes in Legal Changes in Legal Liabilities Under the LSRP Liabilities Under the LSRP

PrgoramPrgoram

Presented by: Martha Donovan

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From the “Responsible From the “Responsible Party” PerspectiveParty” Perspective

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Same Issue From the Same Issue From the Consultant’s PerspectiveConsultant’s Perspective

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From the Client’s From the Client’s PerspectivePerspective

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From the LSRP’s and From the LSRP’s and Consulting Firm’s Consulting Firm’s

PerspectivePerspective

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From the Responsible From the Responsible Party’s PerspectiveParty’s Perspective

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From the Consultant From the Consultant (LSRP) Point of View(LSRP) Point of View

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From the Client’s Point of From the Client’s Point of ViewView

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From the Consultant From the Consultant (LSRP) Point of View(LSRP) Point of View

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You Get the Point?You Get the Point?

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Liability Issues to Fret AboutLiability Issues to Fret About(Both Responsible Parties and (Both Responsible Parties and

LSRPs)LSRPs)

Presented by: Jeff Casaletto

Immediate Immediate Environmental ConcernsEnvironmental Concerns

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IEC Citations• Site Remediation Reform Act – N.J.S.A. 58:10C-2

(definition); N.J.S.A. 58:10C-16j (LSRP duty to report)

• Technical Requirements for Site Remediation – N.J.A.C. 7:26E-1.4 (reporting); N.J.A.C. 7:26E-1.8 (definition)*; N.J.A.C. 7:26E-1.14 (response actions and regulatory timeframes)*

• Administrative Requirements for the Remediation of Contaminated Sites – N.J.A.C. 7:26C-3.3(a)2 (mandatory timeframe)*

• IEC Guidance – Currently in draft form* [Not to be confused with Vapor Concern Guidance]

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IEC DefinitionA discharge that:1. Contaminates potable wells at or above

applicable standards2. Results in indoor air levels above screening

levels in Department's Vapor Intrusion Guidance*

3. Creates a toxic or harmful atmosphere in an occupied or confined space

4. Could result in an acute human health exposure, as further described in the Department's IEC Guidance

5. The catchall – any other condition that poses an immediate threat to the environment or to the public health and safety as further described in the Department IEC Guidance

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IEC Issues• LSRP reporting requirement

• Regulation by guidance*

• NJDEP oversight despite LSRP

• Tight timeframes – immediate, 5-day*, 60-day*, 120-day, 270-day*

• Mandatory timeframe* – March 1, 2011 or one year from the date IEC required to be reported

• Grace Period – all non-minor violations - $20,000

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BRILLIANT ENVIRONMENTAL SERVICES888-901-2537

The Consultant’s ViewPhilip I. Brilliant, CHMM, LSRP

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1. LSRP Obligation 2. LSRP as Advisor/Consultant – Outcome3. Success as an LSRP – the Profession!

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Extension of Mandatory Timeframes from 1 year to 2 years – except LNAPL;

Exercise “enforcement discretion” on regulatory timeframes;

Change the definition of an VI IEC from exceedance of Indoor Air Screening Levels to Rapid Action Levels. “Enforcement discretion” for tweeners.

PA for ISRA and SI for UST; and Initial Receptor Evaluation Requirement –

submit what you have by November 26, 2010.

BRILLIANT ENVIRONMENTAL SERVICES

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When is an LSRP required? Anyone initiating remediation after November 4, 2009 needs an LSRP

Initiating remediation includes: 1) new discharge; 2) new triggering event under ISRA; 3) new PA, SI, RI, RAW, RAR which creates a new case; 4) case with existing NFA is reopened; 5) new person taking over remediation; 6) new deed notice or declaration of environmental restriction

Not a “new case” if you pass two prong test: Reported the original discharge/discovery of contamination as required by law, AND Have continuously remediated the site since then.

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Overriding Concern of LSRP is Public Health, Safety and Environment Notification Requirements to NJDEP

Retention/Termination Discharge at site where LSRP is responsible Immediate Environmental Concern Client action or decision resulting in deviation from RAWP Material differences from prior reports

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Temporary LSRPs – 406 New Cases Using LSRPs – 414 Cases Opting In – 522 (Shell, LNA, CFI)* RAO’s submitted – 17

As of September 8, 2010

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Responsible Party to the NJDEP LSRP to the Board

The Board has not yet been established but will consist of 13 members

NJDEP Commissioner and State Geologist 11 public members, including 6 LSRPs, 3 from Statewide environmental organizations, 1 from a business organization and 1 from academic community

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LSRPs have notification obligations independent of contracts Immediate Environmental Concerns – obligation to report by LSRP Due Diligence

Obligation to report where contamination discovered at sites for which LSRP is responsible

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Area of Concern vs. Entire Site NJDEP issues NFAs; LSRPs issue RAOs RAOs receive the same liability protections afforded NFAs including Covenant Not to Sue Invalidation/Overturning:

NFAs Information not accurate or complete NJDEP can invalidate an NFA at anytime

RAOs NJDEP must find that remedy is not protective Can be audited up to three years after submission and invalidated/reopened

Obligation to submit entire file with RAO, including contracts, proposals, except for confidential documents

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No contamination or 1 AOC (soil only) and historic fill = $450 2-10 AOCs, includes all UST sites, except unregulated = $900 11-20 AOCs, includes Landfills = $5,000 >20 AOCs = $9,500 Contaminated Media Additive = $1,400/media Example UST case with gw impact = $2,300/year

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Professional Judgment Clear, Accurate and Precise Contracts Open dialogue and discussion with client Fast response to NJDEP inspections Respect the fight that brought the LSRP

Program to New Jersey Reduction of Known Contaminated Sites Individual Reputation, not Company! Fast Acting and Fair Board


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For more information: http://www.nj.gov/dep/srp/srra/

Philip I. Brilliant, CHMM, LSRPBrilliant Environmental Services

(732) 818-3380 x [email protected]


http://www.nj.gov/dep/srp/srra/



mailto:[email protected]

Increased Legal Increased Legal Liability Liability of LSRPsof LSRPsN.J. Site Remediation Reform Act =

Increased Responsibility/Liability of LSRPs

Presented by: Charles Miller

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Increased Legal Liability Increased Legal Liability of LSRPsof LSRPs

Areas of Potential New Risk

1. Professional Judgment Risksa. No more DEP approval of LSRP work

before remediation work beginsExample #1: NFA issued by NJDEP

vs. RAO issued by LSRP-Possible re-opener

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1. Professional Judgment Risksa. No more DEP approval of LSRP work before

remediation work beginsExample #2: NJDEP decides financial assurance

vs.LSRP decides financial assurances- Excessive/Inadequate?- Errors in judgment impact on amount

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1. Professional Judgment Risksa. No more DEP approval of LSRP work

before remediation work begins.Example #3: NJDEP decides interpretations

of regs vs. LSRP decides interpretations of regs

- Wrong Interpretation

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1. Professional Judgment Risks2. Documentation Risks

A. Record-keeping - SRRA places responsibility on LSRP to gather and maintain all records

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1. Professional Judgment Risks2. Documentation Risks

A. Record-keepingB. Document submission

- SRRA places responsibility on LSRP to submit all retained documents when RAOs are issued- and DEP then posts those documents- Privilege issues?

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1. Professional Judgment Risks2. Documentation Risks3. Conflict of Interest Risks

A. Due-Diligence DocumentsB. Privileged DocumentsC. IEC/reluctant client

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1. Professional Judgment Risks2. Documentation Risks3. Conflict of Interest Risks4. Time-Element Risks

- LSRP now controls the clock

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1. Professional Judgment Risks2. Documentation Risks3. Conflict of Interest Risks4. Time-Element Risks5. Risk of Reliance by Third-parties

- Third-party relies on LSRP’s RAO

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1. Update documentation (proposals and contracts) to take into account added risks

A. Provision noting services will be in accordance with SRRA

B. Provision setting out LSRP’s obligation to maintain and preserve documents

C. Provision setting out LSRP’s obligation to submit documents

D. Provision setting out LSRP’s obligation to notify NJDEP under certain circumstances

E. Disclosure that failure to perform these obligations may result in fines/penalties

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1. Update documentation (proposals and contracts) to take into account added risks.

F. Disclaimer of liability for client’s failure to:-Perform SRRA obligations-Fund remediation-Disclose relevant information-Follow LSRP’s recommended

actions

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G. Disclaimer noting that issuance of RAO by LSRP is not a guarantee or warranty that the site is free of contamination, that the remediation complies with all legal requirements, or that it will be accepted by the NJDEP

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H. Disclaimer noting that LSRP is not responsible for additional requirements imposed by NJDEP after review/audit, except to extent they arise out of LSRP’s negligence

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I. Clearly set out responsibilities and obligations of LSRP and project owner

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2. Review and update internal procedures, particularly as to document gathering and retention

3. Review insurance coverage

What is Environmental Insurance?

Meredith MarcusFrenkel Environmental

[email protected]

mailto:[email protected]

Should I Be Concerned?

Now What Do I Do?

How Do I Protect Myself and/or My Company?

Possible RAO Reopeners – First 3 Years

NJDEP required to provide additional review of at least 10% of all documents submitted annually by the LSRP

Board required to audit annually the submissions and conduct of at least 10% of the LSRPs

DEP may provide additional review of any document submitted if: Any deficiencies, errors or omissions will result in the inability to

determine if the remediation is protective of the public health safety or the environment

The remediation will not be protective of the public health, safety or the environment

DEP can invalidate an RAO if the remedial action is not protective of public health, safety or the environment

Possible Reopeners – After 3 Years

Same as was present with a No Further Action Determination:

Undiscovered contamination is found at the site Reason to believe there is contamination (e.g., neighboring

property) New cleanup standards Failure to comply with conditions of the RAO

Policy Options

3-year Policy to coincide with 3-year Auditing Period

Policy during remediation (to cover unknown conditions)

Include both remediation period and after RAO (5-10 years)

Environmental Impairment Liability (EIL) Pollution Legal Liability (PLL)

Owners and Operators – must have insurable interest

First Party: Cleanup for Owners and Operators for conditions on, at or under your site

Third Party: Bodily Injury, Property Damage and Cleanup caused by pollution conditions that emanated from your site

Legal Defense Costs

What It Covers

Unknown Pre-Existing Conditions Pre-Existing – Existed PRIOR to policy effective date Unknown – insured not aware of condition (buried surprises)

Excluded – Known Pre-Existing Conditions

Upon Receipt of (RAO) – policy endorsed to cover regulatory reopeners

Discovery of New Conditions from New Operations New – introduced or released AFTER policy effective date

Coverage Enhancements

Business Interruption Loss of Rents Relocation Costs Loan Interest Development Delay Other Soft Costs

Property Diminution (based on reduction of FMV)

Natural Resource Damages (many standard now)

Contractual Liability

Non-Owned Disposal Sites (NODs)

Transportation of Waste (Contingent)

The Policy

Claims Made Often Multi-Year Terms (3, 5, 10)Limits $1 million - $50 millionMinimum Premium Starting at $5,000Duty to DefendDefense Costs Included in LimitsMultiple LocationsRetroactive Dates (extends pre-existing)Minimum Earned Premium (25-100%)Reinstatement of Aggregate for multi-year optional

Contractors Pollution Liability Policy

Third-party bodily injury and property damage including: Cleanup for pollution conditions caused by the contractor

(new condition)

Cleanup for existing conditions exacerbated by the contractor

Often packaged with general and professional liability policies

Professional Liability – Is My LSRP Covered?

Sample Insuring Agreement. “We will pay on behalf of the insured, all loss that the insured

is obligated to pay as a result of claims first made against the insured and reported to the Insurance Company during the policy period or extended reporting period arising out of professional services rendered on or after the retroactive date”

Who is an Insured under Coverage D (E&O)a. Named Insured listed on the declarations page

b. Any partner, officer, director, stockholder, or employee of the Named Insured but only while rendering prof. services on behalf of the Named Insured

c. Heirs, executives, administrators, etc…

Professional Liability – What’s Covered?

Insurance procured by your LSRP to cover losses caused by their professional recommendations

Losses are usually “monetary” in nature as opposed to “bodily injury” or

“property damage” Water intrusion due to improper design or abatement - $4.2MM Project delays due to negligent engineer - $3.1MM Cost overrun due to a consultants error - $1.4MM

Must be caused by a “negligent” act, error or omission

Must occur after Retroactive Date

Defense Costs - even if your firm is not ultimately liable, defense costs can be substantial.

Professional Liability – What’s Excluded?

Intentional and Dishonest Acts “Known or Should Have Known”

Contractual Liability (assumed liability)

Fines and Penalties

Warrantees and Guarantees

Faulty Workmanship

Examples – Violations Likely Not Covered

• April 2008, a private party filed a complaint with the Board alleging that the LSP had failed to follow state regulations while working in 2007 on a contaminated site. The complaint alleged that the LSP excavated contaminated soil and conducted dewatering without previously filing a plan of this work with the DEP. The Complaint also alleged that the LSP failed to obtain a federal permit for discharge of treated groundwater to a storm drain that discharged to a river.

• The LSP failed to address an open IRA condition in a Phase II submittal regarding Site A when the LSP knew or should have known that required IRA activities (namely indoor air sampling at an adjacent residence) needed to be completed.

• In the Phase II submittal for Site A, failing to identify the residents in the adjacent residence as potential human receptors or to discuss vapor migration as a potential human exposure pathway to the adjacent residence.

Questions & Answers Questions & Answers SessionSession

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Documents

lsrp obligation lsrp

remediation of discharge

lsrp prgorampresented

lsrp programwhat

department iec guidance

remediation case backlog

j lsrp duty

date iec