Two of BCONE’s Executive Committee attended  "Embracing the Future,  the Leading Women Entrepreneurs Top 25 Recognition" Event held at Liberty House in Jersey City on Monday, November 16, 2015.  It was a warm, crystal clear evening  with a fantastic view of the NYC skyline outside and a high-energy celebration inside the venue. BCONE’s  Executive Director, Sue Boyle of GEI Consultants, was  recognized as one the best and brightest women entrepreneurs and intrapreneurs of New Jersey.  Sue refers to the NYC and Jersey City skylines when she discusses her brownfields career in an interview on the Leader Woman Entrepreneur – Embracing the Future 2015 YouTube Channel. (https://www.youtube.com/watch?v=QpEffX36nRg).

The photo, taken by President Jaffe, shows Sue surrounded by BCONE members (from left) Elizabeth Limbrick of NJIT, Colleen Kokas of NJDEP, and Caryn Barnes and Sharon McSwieney of Langan. The event showcased exceptional women with strong business acumen and their  reinvention of  themselves and their businesses in an ever changing and ever challenging marketplace and economy. The LWE finalists support hundreds of non-profits, employ thousands of people, and generating millions of dollars.

On November 17, 2015, the Brownfield Coalition of the Northeast (BCONE), Economic Development Association of NJ (EDANJ), and the Licensed Site Remediation Professionals Association (LSRPA) joined forces over margaritas and Mexican appetizers at Los Amigos and held a joint networking event after the League of Municipalities Conference sessions in Atlantic City. Over 40 people, including developers, financial firms, law firms, environmental consultants, planners, government officials,   contractors, real estate professionals and other real estate and environmental service providers enjoyed conversations in the packed bar and on the side porch due to unseasonably lovely weather. There was an excellent  energy level and lots of mingling across organizations. New members of all three associations who attended really enjoyed the introduction to the groups and made connections that will benefit them, and the groups received new volunteers for their committees.  A win-win all around.

by Elizabeth Limbrick, NJIT / NJII

Many of the movers and shakers in the brownfield industry were in attendance at the National Brownfields Workshop 2015 in Chicago.   The conference was well-attended and sparked a great dialogue. One ever-present mover and shaker, was Dan French, of Brownfield Listings.  Mr. French was a featured panelist at BCONE’s 2015 Northeast Sustainable Communities Workshop.  Mr. French’s company, Brownfield Listings, provided a new web portal giving communities an opportunity to list their brownfield properties, projects, and profiles for free.  

Several of the educational sessions were standing room only, including:  Hopportunity Knocks, and the Keys to Sustaining a Local Brownfields Program.   In addition, to the plethora of education sessions, there were plenty of opportunities to network with colleagues and meet new people.   BCONE co-hosted a lunch meet up, with over 30 people attending. 

One of the overarching themes discussed at Brownfields 2015 was that the there has never been a better time for brownfield redevelopment.  The challenge for brownfield redevelopment is taking risk, and our jobs as brownfield professionals are to minimize that risk.  

Even before the conference kicked off there were great pre-conference sessions on many topics including Environmental Justice, which was hosted by the Little Village Environmental Justice Organization. Other important topics covered at the conference included, managing stormwater on brownfield sites, working with railroads, green infrastructure and environmental justice. A bike tour of Chicago provided an opportunity for participants to tour former brownfield sites within the City that had been transformed into park space. 

The Mayor of Chicago, Rahm Emanuel, USEPA  Administrator, Gina McCarthy, and Assistant Administrator Mathy Stanisalaus kicked of the official start of conference with a rousing opening plenary session.  The session harkened back to the 1980s with Administrator McCarthy calling for communities to demand clean air, clean water, and healthy communities.  She also noted, “People need to have a connection to the natural world.”  Administrator McCarthy added, “We have the moral obligation to address local environmental issues, like protecting vulnerable populations.”  Administrator McCarthy also stated that the choices for local communities are best by those local communities and that EPA’s role is to fund and assist, “A little bit of money can spark a lot of investment.” Administrator McCarthy provided us with many interesting statistics on the program.  Since the EPA Brownfield grant program began, over 24,000 sites have been assessed, 1,000,000 acres have been cleaned up and made ready for reuse, and $23 Billion has been leveraged for cleanup and redevelopment.  One of the most interesting statistics Administrator McCarthy shared was that when brownfields are redeveloped 32-52% fewer vehicle miles are traveled in those neighborhoods.  This indicates that brownfield redevelopment is transforming communities into vibrant places / destinations, and that they are no longer a drive through community where people are running to get out.    Mathy Stanislaus noted that “Brownfields are the economic engine of the future” and that brownfields unleash potential. 

For the Mayor’s Roundtable session, Congressman Dan Kildee interviewed several mayors.  Congressman Kildee asked, “How can the federal government find support for all kinds of large-scale projects, but we can’t seem to find ways to subsidize a full-scale supermarket?” Mayor Karen Freeman-Wilson of Gary Indiana noted that when it comes to sustainable practices “Everyone loves density until it comes to their neighborhood.”  She also noted that “It takes a lot of patience to get brownfields work done.  The work has to be done over a period of time over many administrations.”   Duluth Minnesota Mayor Don Ness, summed it all up with the quip that “As a mayor, brownfield work seems magical. We need to tell better stories."  He added that Brownfield works takes courage.   And Dayton Ohio Mayor Nan Whaley noted that brownfields redevelopment is "about making people believe that their community can be great again."  Mayor Madeline Rogero of Knoxville Tennessee noted that there is so much brownfield redevelopment in Knoxville that “Our new city flower is the orange construction cone.”    The mayors also noted that over the years, we had turned our back on our natural resources, such rivers, because they had such a bad legacy of pollution (whether it was from tanneries, or slaughterhouses, or chemical factories).  In recent years, there has been an awakening, and communities want to take their resources back.  Many communities have now embraced rivers as resources, and included them in their redevelopment plans.  

This and more was seen and heard throughout the days of the conference. Seek out a professional or firm who attended for more detailed information regarding technical, financial, and regulatory stories that are currently driving brownfield redevelopment near you. The conference was a great success, with so many experts in one place.

Gregg Crystall, BCONE Regional Council member and Sr. Project Director for BrightFields, Inc. in Wilmington Delaware, reports that the Delaware Department of Natural Resources and Environmental Control (DNREC) Site Investigation and Restoration Section (SIRS) currently has the responsibility for overseeing 235 Certified Brownfield Sites in the State of Delaware. Fiscal year 2015 had a record number of Brownfield Sites certified by SIRS.  The Delaware Brownfield Program provides grant incentives for approved Brownfield Developers on Delaware Certified Brownfield Sites.  Commercial entities are eligible for up to $200,000 in grant funding for environmental investigation and/or remediation activities and non-profit and public entities are eligible for up to $625,000 in grant funding for these activities.  Last fiscal year DNREC allocated and spent a total of $5,000,000 on Brownfield Sites throughout the State.  From 2004-2015, $38,921,400.72 has been reimbursed to Brownfield Developers under the State Brownfield program.   In the first two months of FY’16, DNREC has reimbursed a total of $1,589,671.77 of the $5M allocated for the year.

DNREC has commissioned the University of Delaware to update the Return on Investment study that they completed in 2013.  This study showed a return of $17.50 for every State dollar invested on Brownfield Sites!  The updated study will be published this fall.  The link to the 2013 UD Study “Beyond Natural and Economic Impacts: A Model for Social Impact Assessment of Brownfields Development Programs and a Case Study of Northeast Wilmington, Delaware” is:

http://www.dnrec.delaware.gov/dwhs/bac/Documents/Final%20Submission_Brownfields%20Social%20Impact%20Report%20-%203_5_13.pdf.

Now in its 7th year, the Brownfield Coalition of the Northeast (BCONE) will be hosting the Northeast Sustainable Communities Workshop (NSCW) 2016 at the New Jersey Institute of Technology (NJIT) in Newark, New Jersey on March 16, 2016. The NSCW’s goal is to break new ground, offer new ideas, and posit new concepts on the topics of sustainability, collaboration and leverage, contamination, resiliency, brownfields, technology, and their impact on community revitalization. Our past events have been attended by representatives from government, higher education, professional organizations, and laboratories, as well as attorneys, developers, contractors, and consultants.

This year’s theme is “Imagination and Creativity in Urban Change for the NJ/NY/CT/PA Metropolitan Area.” NSCW is like no other conference you’ve attended. PowerPoint presentations are sparse and image-only; speakers are concise, yet informative; and, there is plenty of time in each session for dialogue between attendees, speakers, and moderators. Come be a part of the conversation! BCONE is issuing a call for ideas on topics related to sustainability for NSCW 2016.

What topics would you like to discuss with experts and leaders in the field of sustainability? Do you have a great idea for a speaker or presentation that you'd like to see at the Northeast Sustainable Communities Workshop on March 16, 2016? Submit an idea for NSCW 2016!  For more information, click here to visit the page on our Call for Ideas.

Submissions are due by September 21, 2015, 11:59 PM ET.

Come out support your colleagues from BCONE at the National Brownfield Conference in Chicago.  Many BCONE members will be presenting and/or exhibiting.  Stop by and say hello.

Alan Miller New Jersey Department of State, Office for Planning Advocacy, NJ Business Action Center will be a panelist on the  "Can You Really Trust Those LSPs, LSRPs, and LEPs?" session on September 2 at 10:15 AM in Stevens Salon A-2.

Sue Boyle, of GEI Consultants, Inc., will be speaking at two Learning Lounges: "On the Urban Waterfront: The Benefits of Hiring Two Environmental Job Training Graduates for Utility Projects" on September 2, at 2:45pm in Steven's Salon B; and "Professional Associations as Brownfield Resources" on September 3, at 10:50am in Steven's Salon B.

Gary Rozmus, of GEI Consultants, Inc., is a panelist on the "Banking on Progress: Land Banks as Catalysts for Brownfields Redevelopment" session on September 2, at 4:15pm in the Waldorf Room.

Colleen Kokas, of the NJDEP, is a panelist on the "State Financial Redevelopment Strategies" session on September 2, at 4:15pm in the Williford Room.

Representatives from the New York City Mayor's Office of Environmental Remediation will be speaking in several sessions:

• 1 Sept, 4pm  - Region 2 Open House.  Daniel Walsh, City of New York (NYC Brownfields Initiatives Advance Social Equity), along with representatives from Camden, NJ and Groundwork USA.  Location TBA
• 2 Sept, 10:45am  - Equity, Equity, Where is the Equity?  Daniel Walsh, City of New York.  Location: Williford B/C
• 2 Sept, 10:45am  -  Keys to Sustaining a Local Brownfields Program.  Lee Ilan, City of New York, & Mark Gregor, City Of Rochester.  Location: Stevens Salon A-2
• 2 Sept, 5:30pm - Poster: Vacant Land Cleanup & Revitalization Initiative.  Hannah Moore, City of New York.  Location: Exhibit Hall poster gallery.  Please come vote for your favorite!
• 3 Sept, 2:15pm - Local Government and Equitable Development: Policy, Strategies, and Community Best Practices.  Daniel Walsh, City of New York.  Location: Boulevard
• 3 Sept, 3:45pm - Brownfields Data Lab - An EPIC Application:  Environmental Information and Community Engagement in NYC. Hannah Moore, City of New York.  Location: Normandie Lounge
• 3 Sept, 3:45pm - Dishing the Dirt on Clean Soil: Reuse Opportunities.  Samantha Morris & Daniel Walsh, City of New York.  Location: Continental Ballroom A
• 4 Sept, 9:45am  - Heard on the Hill: State and Federal Brownfields Policies.  Mark McIntyre, City of New York.  Location: Continental Ballroom A
• 4 Sept, 11:15am  - Characterization for Cash: Financing Redevelopment in Urban and Rural Settings.  Mark McIntyre, City of New York.  Location: Williford B/C

Elizabeth Limbrick and Colette Santasieri from NJIT TAB will be presenting at the "Let's Talk TAB" session at 3:45 - 5:00 PM on September 3, 2015, in the Steven's Salon A-2.  In addition, NJIT TAB will have office hours from 12:30 - 3:00 PM on September 3, 2015, in Salon A-5.

Elizabeth Limbrick and Colette Santasieri will also be participating in the Environmental Justice Caucus on September 1st from 6:30-9:30 PM at the Preston Bradley Hall in the Chicago Cultural Center, 78 East and the Area Wide Planning Grantee Meeting, September 1st from 8:00 AM - 11:00 AM at EPA Region V office 12th floor conference center, 77 West Jackson Blvd. 

NJIT will be sharing booth #802 with other TAB providers (KSU, and CCLR).

Ramboll ENVIRON is exhibiting at booth #110.

GEI Consultants is exhibiting at booth #501.

Beth Barton, Esq. of Day Pitney; Michael Taylor of Vita Nuova; Lee Hoffman, Esq. of Pullman & Comley; and Leah Yasenchak and Michele Christina or BRS, Inc. are also speakers.

The following information is from our BCONE colleagues at Robinson & Cole

As of July 1, 2015, significant changes took effect for the Significant Environmental Hazards (SEH) program established by Conn. General Statutes §22a-6u. This program requires reporting to the Connecticut Department of Energy and Environmental Protection (DEEP) and other parties upon discovery of any of several specified environmental conditions deemed to be SEHs. Reporting requirements run both to technical environmental professionals, who conduct the actual sampling or otherwise discover an SEH condition, and to site owners. This alert focuses on requirements for site owners.

WHAT'S CHANGED

This program now has broader reporting triggers and requires follow-up investigation and/or remediation within narrow response deadlines. The changes also include certain exceptions to reporting requirements and adds various other details regarding the program.

BROADER REPORTING TRIGGERS

• Impacts or potential impacts to drinking water wells: An additional reporting trigger was added for discovery of “nonaqueous phase liquid” (a/k/a free product) of any kind in a drinking water well. Also, reporting is now required where groundwater within 200 feet in any direction of a drinking water well exceeds a groundwater protection criterion in the state’s Remediation Standard Regulations (RSRs). This trigger is in addition to the preexisting trigger for impacted groundwater within 500 feet in an upgradient direction from a drinking water well.

• Impacts in shallow soils: Existing reporting thresholds for shallow soil (top two feet) contamination have now been reduced from 30 times (30X) to 15 times (15X) applicable RSR direct exposure criteria at a parcel in residential use or at a parcel in industrial/commercial use but within 300 feet of a residence, school, park, playground, or day care facility. Exceptions are provided for substances at industrial/commercial facilities that meet specified paving or fencing requirements.

• Subsurface vapor intrusion into buildings: Reporting is now required for volatile substances in groundwater within 15 feet of an occupied building. (Previously, this trigger was limited to impacted groundwater within 15 feet beneath a building). The trigger level for reporting has also been broadened, from 30X to 10X applicable RSR volatilization criteria.

• Impacted groundwater discharging to surface water: This reporting trigger has likewise been broadened, from 30X (of the state’s acute toxicity water quality standards for aquatic life) to 10X. Reporting is also required for discharged groundwater containing nonaqueous phase liquids (a/k/a free product) that has not already been reported to DEEP under other water quality programs. The changes also set a deadline of one business day for reporting such a free product discharge.

REQUIRED INVESTIGATION AND/OR REMEDIATION

The SEH program now also requires the site owner to take steps to address the condition that sparked the notice requirement. In the past, DEEP typically required such action on a case-by-case basis, but the agency’s response times and directives varied. Now, a site owner must proceed with specified steps under relatively short deadlines without waiting to hear back from DEEP. 

For example, for threatened or impacted drinking water wells, required follow-up depends on the conditions that triggered the SEH report and may include identifying and requesting access to sample any other nearby drinking water wells, and reporting such sample results and proposing appropriate further action to DEEP. The deadline is 30 days after the owner becomes aware of the condition. For potential vapor intrusion into buildings, the site owner’s notice of the condition to DEEP must include a proposed mitigation or abatement plan. 

BEWARE : COMPLIANCE HAZARDS REGARDING "SIGNIFICANT ENVIRONMENTAL HAZARDS"

The revised program requires careful reading to avoid potential compliance pitfalls. For example:

• Depending on the SEH condition, the deadline for a site owner’s initial notice to DEEP may or may not match the deadline for other investigation, reporting, or response actions. 
   
• The definition of “residential” also appears to vary slightly among various SEH conditions. DEEP’s interpretation of any differences in use of the term is not addressed in its website notice or guidance document. 
   
• Requirements and standards may also vary within the same SEH condition. For example, for impacted groundwater near drinking water wells, the program bases notice requirements on whether the location of the impacted groundwater is within certain distances of any drinking water wells (500 feet in an upgradient direction or 200 feet in any direction). However, the site owner’s duty to identify and request access to any off-site drinking water wells extends more broadly (500 feet in any direction).  

TIE-IN TO "TRANSFORMATION" OF DEEP REMEDIATION PROGRAMS

The SEH program changes were actually adopted in 2013 legislation regarding DEEP’s remediation “transformation” effort but with an effective date postponed to July 1, 2015. In the interim, DEEP was to reconsider the risk-based numeric criteria on which the SEH reporting triggers are based and to recommend related changes to the SEH program. In brief, this process has not yet been completed. Legislation was proposed earlier this year to further postpone the effective date but failed to pass.

BROADER IMPACTS OF THESE CHANGES ON BUSINESS OPERATIONS

The impacts of the SEH program changes extend beyond release response and remediation. For example, in buying or selling property, due diligence that includes environmental sampling can now trigger requirements for response actions under relatively short deadlines that can complicate the transaction. New requirements to ask third parties for access to sample their off-site drinking water wells will necessitate communications and risk management strategies with respect to potential claims by such parties.  

The SEH program changes include details beyond the summary discussion above, and should be reviewed in full. DEEP’s SEH webpage does not yet reflect the program changes, but an unofficial version of the SEH statute as revised by the 2013 amendments is available through the Connecticut General Assembly’s website.

An update for all NSCW 2015 Attendees and any BCONE members in New York State or doing business in New York State - The Reformed Brownfield Cleanup Program from our contacts in the New York State Department of Environmental Conservation:

July 1, 2015, was the effective date of the reformed Brownfield Cleanup Program (BCP), based on the revisions to the Environmental Conservation Law (ECL) enacted as part of this year’s State budget. DEC is accepting applications for the new program and the application form and instructions are available on the web, as described below.

BCP Reform Changes

Most of the significant changes which initially will affect implementation of the program are associated with eligibility for the program and the two-tiered approach for sites in New York City. To address these, DEC has developed a new application form and directions for its use which are available on the website, along with some additional guidance on how DEC will process and handle the applications. Information about eligibility, the application process, and program requirements can be accessed through the following link:
http://www.dec.ny.gov/chemical/8450.html

Several other changes have been made to the program as outlined in the summary of changes, which can be accessed through the following link:
http://www.dec.ny.gov/chemical/101350.html

Changes of Note:

• Volunteer Oversight Costs: The recent changes to the BCP include a change to subdivision 2 of section 27-1409 of the ECL which removed the obligation for Volunteers accepted into the BCP to pay state oversight costs, effective July 1, 2015. This change does not remove the obligation to pay state costs incurred up to that date. DEC will be preparing and sending final bills for state cost incurred up to July 1st for all BCP sites with approved brownfield cleanup agreements based on our regular schedule for such billings. All volunteer Applicants can anticipate receiving a final bill through this date over the next year which is our regular billing cycle.
• BCP-EZ Status: In exchange for waiving any right to tax credits, lightly contaminated sites would be able to enter a streamlined program, the BCP-EZ option, with State oversight of the cleanup work. BCP-EZ will enable sites to get the critical liability release and obtain financing.
  

The law requires DEC to promulgate regulations before the program can be implemented. DEC currently has a 6 NYCCR Part 375 regulations proposal out for comment with promulgation required by October 1, 2015 for definitions related to the BCP. DEC plans to start the process for adding the BCP-EZ and other required updates to Part 375 within the next few months and does not expect to have proposed regulations until early 2016. It is not likely the BCP-EZ program will be available until the summer of 2016.

Thanks to Steve Jaffe, President of BCONE and the Manko Gold law firm for bringing this to the attention of BCONE members.

On June 30th, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published their final rule defining the scope of the term "waters of the United States," which is used to determine federal jurisdiction pursuant to the requirements of the Clean Water Act, including but not limited to the federal Section 404 wetlands permitting program. The final rule in the Federal Register will take effect in 60 days -- Friday, August 28.

18 states filed suit in three different lawsuits opposing the final rule, alleging in the lawsuit filed by Texas that the final rule "is an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners." The Texas lawsuit was filed in federal court in Texas and was joined by Mississippi and Louisiana. Ohio and Michigan sued in Ohio federal court. Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming filed suit in North Dakota federal court. Notably, no New England, Mid-Atlantic or southern states have filed suit as of this date.

Although the resolution of these lawsuits is uncertain, one thing is clear - the dispute over the meaning of the phrase "waters of the United States" as used in the Clean Water Act is far from over.

Thanks to Steve Jaffe, President of BCONE and the Manko Gold law firm for bringing this to the attention of BCONE members who work with and under the New Jersey Spill Act:

In the landmark decision, Morristown Associates v. Grant Oil Co., the New Jersey Supreme Court finally resolved what many often wondered, "whether New Jersey's general six-year statute of limitations applies to a private party contribution claim to recover cleanup costs under the state's Spill Compensation and Control Act?" The answer from the Court is - a Spill Act contribution claim is not subject to any statute of limitations. The case has been under the watchful and undoubtedly anxious eye of not only the parties to the case, but many Spill Act contribution plaintiffs, potential defendants, New Jersey practitioners, the NJDEP and a host of interested amici parties preparing for the possibility that the Court would uphold the two lower court decisions - and fall in line with several federal cases that have held the general six-year statute of limitations applied to such claims. Such a result would certainly have had a greater impact than the current ruling, which maintains the status quo of how Spill Act contribution claims had historically been handled in state court, with the exception of the lower court rulings in the Morristown Associates case. In reaching its decision, the Court did not seem to struggle with the various and complex arguments presented by the parties in the case, but found support for its ruling in what it viewed as the plain language of the Spill Act, its legislative history and policy considerations.

The Court noted that "while the contribution provision does not explicitly state that no statute of limitations applies, it does state that '[a] contribution defendant shall have only the defenses to liability available to parties pursuant to [N.J.S.A. 58:10-23.11.g (d)].'" The defenses set forth at N.J.S.A. 58:10-23.11.g (d) are limited to an act or omission caused solely by war, sabotage, or God, or a combination thereof, and do not include a statute of limitations defense. The Court concluded that by expressly listing which defenses are available to defendants, that there is "significant support for a conclusion that no statute of limitations applies" and that such a finding reflects legislative intent. The Court stated that although it does not find the language of the Spill Act to be ambiguous, its construction is "support[ed by] the longstanding view, expressed by the Legislature and adhered to by the courts, that the Spill Act is remedial legislation designed to cast a wide net over those responsible for hazardous substances and their discharge on the land and waters of this state."

While the Court's ruling provides relief to any contribution plaintiff that might otherwise be facing a potential statute of limitations defense, there is always a chance the New Jersey State Legislature will amend the Spill Act to incorporate a specific statute of limitations. Accordingly, the Court invited the Legislature to correct it if the Court erred in its decision, stating that "[i]f the Legislature intended something other than what we perceive to be a broad approach to holding parties responsible for their role in polluting the land and waters of New Jersey, then legislative correction can fix any interpretive misunderstanding." And, it is still important to fully consider the various implications of when a Spill Act contribution claim is pursued. Aside from potential future Legislative action, there are other factors to consider in deciding whether to pursue and defend contribution claims early in the remediation process, including: the preservation of evidence; less risk that potentially responsible parties, including additional third-parties, will no longer be viable or financially able to contribute to the cleanup; the potential for buy-in and agreement on the selected remedy; and the potential for reaching a resolution outside of costly litigation.