Attorney Remediation requirements may stall cleanups

//August 21, 2009

Attorney Remediation requirements may stall cleanups

//August 21, 2009

Public notification could slow developers, add extra costs to processNew public notice amendments to the state’s site remediation requirements could create another potential regulatory hurdle for real estate developers, who may see cleanups of contaminated sites become more expensive and time-consuming as they have to address added questions and concerns from the public, according to one environmental attorney.

Developers and businesses with site remediation projects that began prior to Sept. 2, 2008, have until Sept. 2 of this year to comply with recent amendments to the state Department of Environmental Protection’s technical requirements for site remediation.

The amendments require parties responsible for remediating polluted sites in New Jersey to identify sensitive populations and resources located within 200 feet of the site boundary. Sensitive populations and resources include schools, residences, child care centers, playgrounds and public parks, and surface water, according to DEP.

Responsible parties also must post at least one 2-by-3-foot sign in a location clearly visible to the public, or send out notification letters informing property owners, tenants, schools and child care centers located within 200 feet of the site boundary of the contamination and actions being taken at the site.

For cleanup projects that began after Sept. 2, 2008, parties must identify sensitive populations and resources, and notify the public, no later than two weeks before the start of remediation activities on a site, the department said.

But “there is concern among the regulated community” that the amendments could delay the site cleanup process, said Joseph Schmidt Jr., a partner and environmental attorney at the Princeton office of law firm Drinker Biddle. “There could be a lot more public participation that could make it more difficult and expensive to get a remediation project completed.”

For example, in cases where the public demonstrates a substantial amount of interest in remediation activities at a contaminated site, DEP may ask the responsible party to carry out additional public outreach, such as hosting an information session or public meeting, according to the amendments.

Dennis Toft, a partner and chair of the environmental department at law firm Wolff & Samson P.C., in West Orange, said the regulated community should stop being fearful of a potentially negative public reaction.

“Any time you’re telling people something new, it’s cause for the public to question things,” he said. “Developers need to be able to answer those questions and explain it’s a positive that they’re out there cleaning up those sites.”

If handled correctly, public notice shouldn’t delay the remediation process, either, he said. “People need to be proactive,” Toft said. “They need to understand that if they have an issue at their site that’s going to be of concern to their neighborhoods — some contamination, some groundwater plume going offsite — they’re better off reaching out directly.” This can include knocking on neighbors’ doors, holding a community meeting before DEP requests one and having more information available than what is required in the public notices, he said.

Responsible parties also should consider getting licensed site remediation professionals on board sooner, rather than later, he said. To have an LSRP listed as the contact person on the public notice “is an added degree of comfort to the neighbors,” he said; some people may feel that the responsible party may not be as knowledgeable of the specifics of the cleanup or as impartial as an LSRP.

“You’re usually better off if the first call [a neighbor makes] is not the DEP,” whose Office of Community Relations also is required to be listed on the public notices, Toft said. “That’s where the risk of delay comes in. They have to go through various bureaucratic layers.”

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