by Rodger A. Ferguson, Jr., LSRP in Dimensions (View full newsletter here)
LSRPs and environmental lawyers often debate whether Licensed Site Remediation Professionals (LSRPs) are bound by their statutory code of conduct to report discharges of hazardous substances discovered during pre-acquisition environmental due diligence to the New Jersey Department of Environmental Protection (NJDEP) Spill Hotline. The passage of amendments in 2019 to the Site Remediation Reform Act (SRRA) has stoked this fire again.
There is a lot to wade through in this debate. The original statutory language in the SRRA was a compromise over who should report discharges of hazardous substances: the responsible parties or their environmental professionals who became LSRPs.
The LSRPs didn’t want the reporting obligations of their clients; nonetheless, the SRRA directed LSRPs to report discharges discovered on “sites for which they were responsible.” The best reading of the statutory language was, and remains, that LSRPs are obligated to report the discovery of a previously unreported discharge if they are retained as the LSRP of Record, meaning they were hired by the person responsible for conducting remediation to remediate a site and notified the NJDEP of the engagement. In comparison, the statute requires an LSRP to report an Immediate Environmental Concern, a potentially acute health concern, regardless of any “responsibility” for the site.
Following passage of SRRA, the NJDEP advocated a broad interpretation of LSRP reporting obligations and muddied the question by stating that LSRPs “cannot take off his or her hat,” meaning they should report what they see at all times. Transactional lawyers began excluding LSRPs from due diligence teams, ostensibly to avoid the possibility of a discharge report to NJDEP that could crater a transaction and leave the seller holding the bag.
Against this backdrop, it was almost surprising that in an administrative proceeding in 2011 the LSRP licensing board declared an LSRP is not obligated to report discharges identified during due diligence:
“The discovery of the discharge … did not occur on a contaminated site for which the LSRP was responsible. Specifically, at the time of the discovery, the LSRP had not been retained as the LSRP for the site. Rather [the LSRP] was hired … as part of the developer’s appropriate inquiry into the previous ownership and uses of the property.”
Stakeholder proceedings for SRRA 2.0, as the SRRA amendments from 2019 are known, engendered raucous debate over discharge reporting. The NJDEP argued that reporting obligations of all parties should be expanded, not just of LSRPs.
Proposals were made that “any person” who became aware of a discharge should report it and that real estate contracts that limited disclosure of discharges should be outlawed. The Licensed Site Remediation Professionals Association advocated to clarify the SRRA language that LSRPs do not have a reporting obligation. This would ensure the “best and brightest” (i.e., LSRPs), would be available to assist in transactional due diligence. None of these proposals were included in any bill introduced in the legislature.
Now, a polite discussion has begun about whether other SRRA 2.0 amendments clarified the discharge reporting obligation during due diligence. Center stage is an amended definition of “remediation” and the idea that a prospective purchaser is a “person responsible for conducting remediation.” But that argument is flawed.
In a nutshell, remediation and pre-acquisition due diligence are different. A prospective purchaser conducts “all appropriate inquiry,” as defined in the Spill Act, to establish its knowledge about a property and support the innocent purchaser defense.
A prospective purchaser is not a “person responsible for conducting remediation,” as defined in the Brownfields and Contaminated Site Remediation Act, who investigates and then remediates known or suspected discharges. The definition of “remediation” still does not reference due diligence. The Brownfields Act still exempts prospective purchasers from the obligation to hire an LSRP.
The legislators certainly heard people advocate for expanded or clarified reporting obligations and chose not to include these proposals in the SRRA 2.0 legislation. The legislation also did not change the licensing board’s unambiguous determination in 2011 that LSRPs are not obligated to report discharges discovered during due diligence. Beyond that SRRA 2.0 did little to clear muddied water.
To end this debate, the LSRP licensing board, charged to interpret the LSRPs’ code of conduct, should adopt rules to clarify, again, that LSRPs do not have a discharge reporting obligation during due diligence.
About the Author: Rodger Ferguson, a member of the New Jersey Builders Association, is President of Pennjersey Environmental Consulting. He thanks Steve Senior, a Partner with Riker Danzig, and William Hose, Assistant Executive Director of the Licensed Site Remediation Professionals Association, for their assistance with this article.
Posted On February 6, 2020, the NJ Department of Health (NJDOH) issued its “Evaluation and Management of Mercury-Containing Floors in New Jersey Schools: Guidance for School Districts and their Environmental Consultants.”
This long awaited 12-page NJDOH guidance goes into some level of detail on the assessment, evaluation and mitigation options. This guidance establishes a recommended criteria for mercury vapor of 0.8 µg/m3 in air in spaces with mercury-containing floors. The NJDOH guidance establishes this criteria as, “protective of preschool-age children and is based on an exposure frequency of eight hours per day for 180 days. This is the level of mercury in indoor air at which the NJDOH does not expect any harmful health effects among children as young as age 3.” In addition, this document recommends certain protective mitigation/abatement protocols, including ventilation, temperature control, and potential floor removal, depending on the mercury vapor concentrations present and site specific conditions. The NJDOH concurrently released a “Mercury-Containing Flooring in New Jersey Schools Information for Parents” fact sheet which summarizes the issues as well as separate guidance for medical practitioners.
PennJersey (listed under Willow Grove dba PennJersey) has a track record of successful mercury evaluation and remediation projects. We are an NJDOH Licensed Indoor Environmental Consultant. PennJersey is also NJDPMC/NJSDA pre-qualified and a NJ SBE firm.
“The Commerce and Industry Association of New Jersey (CIANJ) and its flagship publication, COMMERCE Magazine, celebrated environmental leadership in the business community at a special awards breakfast this week.
More than 150 consultants, attorneys, accountants, engineers, licensed site remediation professionals and others, who work in the environmental sector, gathered at the Glen Ridge Country Club for the first annual event…
CIANJ and COMMERCE Magazine also honored an array of companies for their environmental leadership in recycling, pollution prevention, green building design, environmental conservation, energy conservation, community impact, manufacturing innovation, and brownfield redevelopment. They were chosen from nominations submitted to the magazine by CIANJ member and the business community at-large. The environmental awards were the cover story of COMMERCE this month. More than 60 pages were dedicated to stories of the companies’ accomplishments.”*
PennJersey President, Rodger A. Ferguson, Jr., had this to say:
In today’s hot real estate market, properties with significant environmental challenges that previously wouldn’t be considered are being purchased and redeveloped. Gov. Phil Murphy has been encouraging redevelopment through his economic plan, but there are still challenges, like state Department of Environmental Protection requiring a redeveloper to establish a remediation funding source under an administrative consent order even if the redeveloper has no relation to the responsible party when the remediation timeframes have been missed. We are actively discussing changes to the Site Remediation Reform act on behalf of LSRPs to improve the process, and issues like this have been brought to the table by developers for discussion.
We worked collaboratively with our client, a local Board of Education, and the New Jersey Schools Development Authority on a $30 million elementary school on a brownfields site that’s scheduled to open this fall in a North Jersey city. We did the pre-construction work on behalf of our client, including a preliminary assessment and the soil and groundwater investigations. Our services included soil and foundation removal, an interim cap, and groundwater monitoring. We also evaluated the site for potential vapor intrusion and recommended controls for construction, so the state’s design-build contractor could move ahead and construct a safe building. When the state’s design-build contractor discovered a large, underground storage tank that was under the sidewalk and just off the site, we collaborated on its removal. On a site like that there can always be surprises. It’s like going through layers of civilization.
*CIANJ & COMMERCE Magazine Press Release
In early 2017, a NJ Education Association Work Environment Council flier reported that phenyl mercuric acetate (PMA) may have been used in as a curing agent in synthetic rubberized flooring. The New Jersey Department of Health (NJDOH) also issued a fact sheet in early 2018. From the 1960s to the early 2000’s, schools, communities, colleges, universities, prisons throughout the country installed indoor gymnasiums, field houses, outdoor running tracks and similar rooms and athletic facilities. According to the 3M Corporation, their Tartan® brand polyurethane flooring product (along with 8 other known brands) may contain as much as 1,000 – 2,000 parts per million (mg/kg) total mercury. It is now known that the PMA breaks down to metallic mercury over time, which is released as a vapor into the air. Based on the available literature and our own experience, metallic mercury vapors and mercurycontaining dust have been reported at elevated levels as a result.
While this emergent issue has been evaluated by a handful of other states, there are no statutes, regulations, or detailed guidance to address the potential impacts from mercury in flooring. The federal Agency for Toxic Substances and Disease Registry (ATSDR) and state health departments appear to be the lead agencies involved in evaluating the issue. While not required, it is recommended that the NJDOH should be utilized as a resource and provided with a copy of the results. The New Jersey Department of Environmental Protection (NJDEP) does not regulate building materials, but would regulate the disposal of the impacted flooring.
Exposure to mercury can primarily affect the neurological system, including the brain, as well as the kidneys or a developing fetus. Children and pregnant women are at greatest risk from mercury exposure, but occupational exposure is well known. The initial neurological effects may result in hand tremors, an increase in memory disturbance, and evidence of autonomic dysfunction. Mercury exposure is not known to cause cancer or autism.
In order to evaluate suspect facilities, it is recommended that bulk sampling of the rubberized play surfaces be conducted by a NJDOH Licensed Indoor Environmental Consultant to determine the potential presence of total mercury above 1 mg/kg. This can be done in unobtrusive locations in many instances, i.e., under roll out bleachers. If total mercury is less than 1 mg/kg, it can be assumed that the flooring was not manufactured using a mercury-containing compound such as PMA. Above this level, conducting further indoor air sampling and remedial action is warranted.
Where floor bulk-sampling results exceed 1 mg/kg total mercury, or destructive sampling is not feasible, an indoor air investigation using a mercury specific analyzer is recommended to assess the potential for metallic mercury vapor to be present. The ATSDR recommends that if metallic mercury vapor in the air is greater than 0.8 part per billion (µg/m3), which is consistent with NJDEP’s 1 µg/m3 indoor air screening level, additional remedial action is needed.
The evaluation of mercury migration as vapor and dust throughout the facility should also be considered. Mercury floor remediation projects often only focus on the flooring itself. Due to the potential for impacts mercury containing dust to heating/air conditioning/ventilation systems, architectural features, and exterior areas, a concurrent evaluation of mercury containing dust is recommended.
Depending on site-specific conditions, complete floor removal and disposal should be considered as a permanent solution. Removal of the mercury impacted should be considered based on the air concentrations along with the age and condition of the flooring. Prior to removal and disposal of any impacted floor material, sampling and analysis the flooring according to United States Environmental Protection Agency and NJDEP hazardous waste regulations is recommended. A comprehensive removal specification, which includes comprehensive air monitoring for the protection of the workers and building inhabitants during the replacement of the flooring, is recommended to solicit bids from qualified contractors.
An alternative to removal is the short-term encapsulation of the floor coupled with controlling the air temperature in the affected areas. Diligent year round temperature control to 65 – 68° F is recommended to minimize the volatilization of mercury vapors and routine air sampling should be conducted to affirm safe air levels. Note that increased energy costs in the summer months may, however, off-set the short term savings over time. This strategy does not address potential dust impacts, but could be effective before implementing a long term removal remedy.
Case Study (Urban Public School District)
PennJersey assisted one of the largest urban districts in NJ by evaluating seven facilities with rubberized flooring in June 2017. Each facility was evaluated by collecting bulk samples of the flooring and by sampling the indoor air samples with the mercury specific analyzer. Of the seven facilities evaluated, three were identified with elevated levels of mercury in the rubberized flooring and in the indoor air. PennJersey developed a comprehensive specification for the removal of mercury impacted rubber flooring and cleaning for these three facilities, and public bidding for floor removal and replacement was conducted. In this case, the flooring was not removed, but was covered with a barrier, new flooring, and the interior temperatures maintained at 65° F to minimize the generation of mercury vapors. Post remediation results were reported to have been acceptable, however, increased energy costs have been identified as an ongoing issue.
- ATSDR, Action Levels for Elemental Mercury Spills, March 22, 2012.
- NJ Education Association Work Environment Council, HSN Alert: Mercury Hazard to Staff and Students from Rubber-Like Floors in Schools, February 2017.
- Ohio Department of Health and ATSDR, Mercury in Flooring Presentation, presented at the Building Environment Council of Ohio Fall Conference October 21, 2010.
- USEPA, Integrated Risk Information System: Elemental Mercury, June 1, 1995.
- NJDOH, Guidance for New Jersey Schools: Evaluating Mercury in Synthetic Flooring,
PennJersey is a small, specialized environmental consulting firm located in Milford, New Jersey. We manage the environmental needs of a variety of clients in the public and private sectors. Our primary focus is on assisting our clients through the site assessment and remediation processes. Throughout our engagements, PennJersey acts as an advocate for our clients while satisfying the myriad of regulatory and technical issues that can arise to complicate a project. PennJersey is licensed by the NJDOH as an Indoor Environmental Consultant (#1219).
For More Information, Contact
Rodger Ferguson, LSRP William Call, PG LSRP Brad Musser, LSRP
(908) 329-6060 x8450 (908) 329-6060 x8453 (908) 329-6060 x8454
By Sue Boyle and Rodger A. Ferguson, Jr., LSRP
If you look around, you will see New Jersey has come a long way to reclaim once forgotten properties that held the skeletons of an industrial past.
In fact, many of the most complex, largest and most contaminated sites, once considered too complicated or expensive to consider, are now available for redevelopment. This year, New Jersey passed 12,000 environmental cleanups completed under the Site Remediation Reform Act (SRRA) of 2009 and the submission of more than 46,000 reports to document the work.
There are a lot of people to thank for the achievement, including the builders and developers with the vision to take on the projects.
But a great deal of the success must go to the SRRA itself, now in its 10th year. A landmark law, which came at a time when environmental cleanups needed a boost, the SRRA created timeframes for environmental remediation and the Licensed Site Remediation Professional (LSRP) program to guide responsible parties and others through the process. Nearly all, with some exceptions, are required to use LSRPs to guide them through the process.
LSRPs are now an integral part of New Jersey’s environmental remediation process and an invaluable resource to both responsible parties and developers. LSRPs know how to work on redevelopment and remedial needs at the same time – keeping projects on track to meet the timeframes of federal, state and local environmental protection agencies as well as the business people and local governments seeking to bring properties back to productive use.
Before the SRRA, New Jersey identified 26,000 sites in need of remediation and most were on a waiting list for action by the New Jersey Department of Environmental Protection (NJDEP). Now, with even with more sites being added every year, that list has been cut nearly in half.
In fact, there are more contaminated sites actively being worked on today than ever before because of the LSRP program, the NJDEP’s hard work, developers and the SRRA. These sites are in every area of the state and are being cleaned faster than ever before with no loss in the quality of the remediation or protections to human health and the environment.
One way to look at the success is the rate of projects completed each year. There has been a dramatic rise in Response Action Outcomes, or RAOs, which is the term for the completion of a remediation project and the equivalent of what was once known as a No Further Action.
Since 2012, when the LSRP program was fully implemented, the number of RAOs rose sharply. The number of remediations completed now averages around 2,000 a year, about four times the rate of completions when the SRRA was implemented in 2009.
Even more impressive, is this chart compiled by the LSRPA using data from the NJDEP that shows all cases are being completed faster. Simpler cases and complex cases (i.e., multiple areas of concern and impacted media) are both being completed at an accelerated rate with no loss in quality when contrasted with a comparable period before the SRRA.
Of course, there is always room for improvement. Already, key legislators and the NJDEP have begun to collect comments and suggestions for updates and changes in policy, regulations, and if absolutely necessary, the law. Legislators may begin reviewing potential legislation later this year or early next year.
As the front lines of remediation in New Jersey, LSRPs know how the process is working on the ground and in the groundwater. Through the Licensed Site Remediation Professional’s Association (LSRPA), we have begun considering how best to streamline and clarify the state’s rules for cleaning up sites.
Builders and developers have begun to consider these issues as well.
One issue LSRPs, developers and the NJDEP should consider together is how best to streamline the requirements necessary to complete remediation projects.
Under the current law and regulations, NJDEP must process a Remedial Action Permit (RAP) before an LSRP can submit the final paperwork for a RAO to declare the remediation is completed and the institutional controls are in place.
From the time it is submitted until the time it is issued, a RAP can take more than a year, delaying completion of property transactions and redevelopment projects. No one knows better than builders the impacts delays can have on redevelopment.
Some of the delays are caused by improperly completed paperwork or by LSRPs not adequately describing how they reached their professional decisions. The LSRPA has worked with the NJDEP and responsible party organizations to improve training for LSRPs to remove the administrative hurdles. LSRPA also is active on the ongoing NJDEP stakeholder group to improve the current process and has reaffirmed its commitment to continuing education for LSRPs and responsible parties.
But more creative solutions also may be considered to ensure no bottlenecks exist between when the work of remediation is completed and the permit is issued so an RAO can be filed.
Of course, better documentation of an LSRP’s decision process for a RAP and RAO should reduce the time necessary for NJDEP reviews. Better documentation also could help to expedite the required inspection and review of other reports.
Another potential solution would allow the LSRP to issue some permits by rule while retaining NJDEP’s ability to review the final remediation documents to ensure the necessary controls are in place for the environment and public health.
Also, the regulatory mindset must change so that prospective developers, who now may be listed as the party responsible for the site’s pollution, are treated as an ally in the safe redevelopment of contaminated properties. Both builders and stakeholders should work together for that goal.
Whatever the changes, the success of SRRA is evident. But any program, with enough experience, can be updated and improved. With appropriate and reasonable changes to our state’s laws and regulations, we can accomplish even more for the public, the environment and business.