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Industry Experts Examine Emerging Contaminants, Water Infrastructure and Site Remediation Program

NEW BRUNSWICK, N.J., July 16, 2019 – Industry experts addressed recent regulatory and legislative initiatives and the impact they are having on the state’s real estate development process during NAIOP New Jersey’s annual Regulatory, Legislative & Legal Update held at the New Jersey Law Center in New Brunswick, N.J. The agenda included upcoming changes to the Site Remediation Reform Act (SRRA), the recently enacted Stormwater Utilities Law, pending stormwater management rules, emerging issues surrounding contaminants such as PFAS and the implications of FEMA’s efforts to redefine flood risk.

Surface Water: Recent and Proposed Regulatory Changes
Kelly McCormick, senior project manager with Langan Engineering & Environmental Services, moderated the first panel discussion which reviewed three key regulatory issues affecting surface water rules and standards.

Jim Lunski, executive assistant to the assistant commissioner of Water Resource Management at the New Jersey Department of Environmental Protection (DEP), introduced proposed changes to the Stormwater Management rules, which are intended to address and reduce pollutants associated with stormwater runoff. “We are reviewing public comments to the original proposal issued a few months ago and working on Phase 2,” said Lunski. “This will be a deeper dive into what standards could be changed to make the rules better.”

Among the significant changes proposed is a requirement that green infrastructure (GI) be utilized to meet standards. Jeromie Lange, a senior principal with Maser Consulting PA, said, “Green infrastructure is a holistic way of dealing with stormwater management that works with nature rather than structural components to achieve a better result.”

If adopted, the new rules will move beyond current strategies to mandate that major developments incorporate nonstructural stormwater management strategies. When asked about the increased costs to developers, Lange said, “The way to take advantage of these rules is by using every nook and cranny of a site to create a rain garden or bioretention system. The savings in land area will offset the cost of initial plantings.”

The panel also discussed:

  • Senate Bill 1073: The recently adopted bill authorizing municipalities and counties to establish stormwater utilities and collect reasonable fees to cover maintenance and oversight costs, including imposing taxes on existing property owners. Neil Yoskin, chair of the Environmental Practice Group at Cullen & Dykman, noted NAIOP’s position was one of conditional support, citing concern over whether fees would be equitably assessed by providing credit for existing stormwater control measures that have already been incorporated into the site. “The DEP expects to consult with stakeholders and others to develop guidance that will include a fee structure,” said Lunski.
  • Surface Water Quality Standards (SWQS): The DEP proposes amendments to upgrade 749 river miles to Category One (C1) designation based on exceptional ecological significance and exceptional fisheries resources. While Yoskin noted that the current proposal “has garnered a lot of public comment, including criticism of how water bodies were chosen and the need for a 300-foot riparian zone,” Lunski said the department expects changes to be adopted by late fall or early 2020.

Emerging Issues: PFAS Compounds, FEMA’s Risk 2.0
EWMA president Don Richardson and Emily Lamond, a member of Cole Schotz’s Environmental department, discussed the emerging concern around PFAS compounds and the impact of these contaminants on the real estate community. “These finely-engineered chemical compounds have been used in a wide variety of industries for 70 years,” said Richardson. “PFAS are highly toxic, spread easily and accumulate over time in fish and humans. The challenge is keeping them out of the mainstream.”

Richardson noted the DEP has taken an aggressive stance in addressing PFAS as a drinking water concern “as it should. New Jersey’s petrochemical manufacturing and disposal legacy has created a need to be proactive in assessing the risks posed by these contaminants.” He added that a working group has been established to determine and rank sources and areas of contamination to help establish priorities.

Lamond cited numerous efforts to address the issue at the federal level, notably bi-partisan actions in Congress to push the U.S. Environmental Protection Agency (EPA) to set strict drinking water standards and take more aggressive action to ban PFAS chemicals as hazardous substances. At the state level, she reiterated that “New Jersey is hailing itself as the leader in taking aggressive action on PFAS. Most recently, the DEP issued interim groundwater quality standards related to site remediation.”

Both presenters emphasized the potential impact on real estate transactions. “It’s a big concern for all parties involved, from property owners and buyers to brokers and insurance companies,” said Lamond. “You need to be proactive in working with an environmental consultant to determine if PFAS contamination is a risk for property owners down the road.”

Marilyn Lennon, a principal with PS&S, outlined “Risk 2.0”, the steps FEMA is taking to redefine flood risk for the first time since the 1970s. “The federal flood insurance program is going broke and there is a need to dip into a large, more diverse pool. This spring FEMA announced they are developing a new model, which will be rolled out by October 2020, mapping the entire country and supplanting everything that came before.”

How the NJ DEP responds in the wake of the new risk definition remains to be seen, but Lennon believes that “because the cost of construction will be based on whatever FEMA determines, the changes will impact requirements for all types of construction.”

Assessing Changes to Site Remediation Reform Act
The final panel highlighted proposed changes to New Jersey’s Site Remediation Reform Act (SRRA). While the program has been an unmitigated success since it was launched in 2009, stakeholders and the DEP felt it was time to focus on making the process even better.

Mark Pedersen, assistant commissioner for the DEP’s Site Remediation and Waste Management program, said, “We looked at 10 years of implementing a new paradigm and asked ourselves where were the vulnerabilities, what needed to be clarified and how could we refine the process working with other stakeholders. At the end of the day, it has to be protective of health and the environment.”

Discussion leader Susan Karp with Karp Environmental Law noted, “The process of amending SRRA has been going on since 2017, and it involved many discussions, both heated and productive.” Panelists Dennis Toft, chair of the Environmental Group at Chiesa Shahinian & Giantomasi, and Lawra Dodge, president of Excel Environmental Resources, agreed that while the final version of proposed amendments – known as “SRRA 2.0” – did not achieve everything various stakeholders had hoped, the process was fruitful in terms of clarifying numerous issues for Licensed Site Remediation Professionals (LSRPs). “What we have is a significant improvement,” said Dodge.

Karp noted that one of the most controversial issues, which involved who needed to be informed if a potential property buyer found contamination during due diligence, is not in the bill. Key among the substantive changes highlighted were:

  • Spill Act Amendment: Addresses third-party liability protection for future remediation and clarifies that site remediation has to be done according to a workplan submitted by an LSRP.
  • Definition of “Remediation”: Clarifies that any Responsible Party doing remediation in the state must hire an LSRP. Toft and Dodge agreed this reflects the original position of the DEP and LSRPs’ understanding of remediation.
  • Response to inquiries by local government officials, municipalities, and the public at large: Toft noted an increased focus on expanding the availability of information “to keep the public apprised of what is going on at sites in their communities.” Dodge added, “Any time we can address a valid concern it helps the process and stems the spread of misinformation.”


Photo Caption: Pictured (from l-r) are Marilyn Lennon and Kevin Lennon (PS&S), who covered FEMA Risk 2.0, and Emily Lamond (Cole Schotz) and Don Richardson (EWMA) who spoke about contaminants.

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