On July 17, 2017, the New Jersey Department of Environmental Protection (NJDEP) published proposed rules that included the long-awaited Heating Oil Tank System (HOTS) Remediation Rules (N.J.A.C. 7:26F). This rule has been rumored to be “right around the corner” for many years. It was delayed in legal review and overshadowed by the sweeping changes instituted in 2009 with the introduction of the Site Remediation Reform Act and the creation of the Licensed Site Remediation Professional (LSRP) certification. The HOTS Rules (managed by the NJDEP’s Unregulated Heating Oil Tank, or UHOT, program) pertain to a specific subset of environmental cases in New Jersey. These include both residential and small (2,000 gallons or less), non-residential heating-oil tank systems, which are unregulated tanks.
The stated objectives of the program are to:
- Allow pre-qualified professionals to investigate low-risk environmental cases
- Accelerate the NJDEP review process and reduce the time to closure, especially in cases of residential real estate transactions
- Re-direct NJDEP resources toward oversight and enforcement of high-risk cases
The “pre-qualified professional” mentioned above can either be an LSRP, or a Subsurface Evaluator (SSE). The SSE license has been around for a decade. There are several distinctions between how an LSRP and an SSE can operate on a UHOT/HOTS case:
- An SSE must obtain NJDEP approval and obtain a No Further Action letter. An LSRP may “close” a HOTS case without NJDEP approval (but only in cases where the HOTS is part of a larger remediation effort).
- An SSE needs to be on-site to physically oversee the HOTS investigation and remediation. An LSRP has the ability to rely on, and certify, work performed by others.
- An SSE cannot perform an ecological risk assessment. This is considered a highly specialized task. If this is required to complete the remediation, an LSRP must be consulted.
- An SSE cannot institute a traditional Deed Notice.
- An SSE must be employed by a firm that also has an SSE certification.
Because HOTS cases are considered low-risk, the timeframes that force other cases along in a timely progression do not apply. Many residential underground tank cases await NJDEP funding, which may take 5 to 7 years to obtain. The one exception is a timeframe to remove free product; this removes the source material and limits contaminant migration while the property owner waits for funding to be approved.
Other notable changes in the proposed rule include:
- Under specific conditions, an SSE or LSRP can leave contamination in place by implementing a “HOTS Deed Notice” without NJDEP permit approval, NJDEP fees, or biennial certifications. However, filing a Deed Notice could still affect the value of the property and the cost of homeowner’s insurance.
- If the residual contamination under a residential building is estimated to be less than 15 cubic yards, an SSE or LSRP can leave contamination in place by implementing a Small Quantity Exception. This option does not require a Deed Notice.
- Removal of the requirement to analyze groundwater for Tentatively Identified Compounds. This applies to any Site contaminated by No. 2 fuel-oil only, not just HOTS cases.
There are other distinctions between HOTS cases and others that have already been in place, including lighter requirements for Public Notification, Ecological Evaluation, and potable well searches. All of these aim to give residential property owners more leeway for how they remediate their Sites, and to give them the tools they need once the house is on the market and they’re under a time crunch to get to closing. The typical time for NJDEP review of a HOTS Remedial Action Report is has been reduced to a matter of weeks by some of the changes implemented by NJDEP over the years.
The changes proposed in the HOTS Rules have knock-on effects that trigger modifications to the Discharges of Petroleum and Other Hazardous Substances rules (N.J.A.C. 7:1E), the New Jersey Pollutant Discharge Elimination System rules (N.J.A.C. 7:14A), the Underground Storage Tank rules (N.J.A.C. 7:14B), the Industrial Site Recovery Act Rules (N.J.A.C. 7:26B), the Administrative Requirements for the Remediation of Contaminated Sites (N.J.A.C. 7:26C), and the Technical Requirements for Site Remediation (N.J.A.C. 7:26E). To allow for extra opportunity to comment on all of these changes, the NJDEP extended the public comment period until September 29, 2017. The NJDEP has provided a courtesy copy of the full rule proposal at: http://www.nj.gov/dep/rules/proposals/20170717b.pdf.
For more information on this topic, contact:
Chris Valligny, SSE, LSRP
Rick Shoyer, LSRP
Senior Project Consultant