Hot Environmental Topics

It is not illegal to sell a contaminated property, but it sure can be difficult.   The primary difficulty is contamination which devalues real estate and who is responsible for the cleanup. 

Determining a cost to clean up the property has to be part of the valuation of the property for purchase. Let's say for argument's sake you have a $1,000,000 property, with $200,000 in anticipated cleanup costs.   I will not bother dealing with what you pay for this property, but it is common that not only the $200,000 is deducted from the sale price but an additional amount is deducted for the headache and management of this future cleanup if cleanup is transferred to the new owner.   In this scenario, buyers take the risk that the $200,000 is fixed, which is not always the case as costs rise and regulations charge (becoming more stringent)., which also increases cost.

That is a very simple scenario of selling or buying a contaminated property. Unfortunately, environmental regulations add another layer of complexity.   If you own a contaminated property, you are the Responsible Party (RP) and Person Responsible for Conducting Remediation (PRCR). 

Clearly, you should discuss this type of sale with your attorney, with the major consideration being Who is Responsible for the cleanup and how is that responsibility maintained?  For this example, we will assume that the buyer will be taking the role of PRCR as defined below.

A Responsible Party is a party that has an affirmative obligation to remediate, as defined by the Brownfield and Contaminated Sites Act, N.J.S.A. 58:10B-1.3, as stated below:

“An owner or operator of an industrial establishment subject to the provisions of P.L.1983, c.330 (C.13:1K-6 et al.), the discharger of a hazardous substance or a person in any way responsible for a hazardous substance pursuant to the provisions of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), or the owner or operator of an underground storage tank regulated pursuant to the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.), that has discharged a hazardous substance, shall remediate the discharge of a hazardous substance.”

A Person Responsible for Conducting the Remediation includes all parties who are conducting remediation, regardless of their status as a Responsible Party. A Person Responsible for Conducting the Remediation is defined by SRRA, N.J.S.A. 58:10C-2, as stated below:

"Person responsible for conducting the remediation" means (1) any person who executes or is otherwise subject to an oversight document to remediate a contaminated site, (2) the owner or operator of an industrial establishment subject toP.L.1983, c.330 (C.13:1K-6 et al.), for the remediation of a discharge, (3) the owner or operator of an underground storage tank subject to P.L.1986, c.102 (C.58:10A-21et seq.), for the remediation of a discharge, (4) any other person who discharges a hazardous substance or is in any way responsible for a hazardous substance, pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), that was discharged at a contaminated site, or (5) any other person who is remediating a site.”

The seller is and always will be the Responsible Party for the site and until real estate is transferred they are also the PRCR.  The new buyer can assume the mantle of PRCR and continue the remediation of the site.  If the buyer assumes the PRCR and then fails to meet their obligations and the DEP gets no response from them, the seller (former owner) will be contacted by the DEP as the original RP to continue with the remediation. 

In English, the seller holds responsibility for life. If the buyer fails to clean up the site, the seller will be on the hook.   Attorneys can protect a seller with language in the agreement of sale transferring RP/PRCR roles.

There is a form that is submitted to DEP adding the new property owner as the PRCR if that is the agreement.   The legal wording must have a foundation of what the new buyers and sellers’ responsibilities will be regarding the future environmental work at the site.

An alternative to transferring the responsibility of the cleanup is for the seller to maintain responsibility and positive control of the cleanup after the sale.  Defining cleanup is also very important.  For example, many contaminated sites never get 100% cleaned up by removing or remediating the contamination, rather the contamination is permitted in place. Clean is not clean, but rather legal contamination. If your agreement of sale sells you will promise a clean site, define clean.

It sounds complex and confusing.   There can be many variables involved, call a professional.

888-301-1050

New Jersey Lead Safe Law amendments

were signed by the governor on September 12, 2024.

Some key points of changes to the NJ Lead Safe Law regarding lead inspections are as follows:

Lead inspections were always interior and tenant-accessible areas in the main structure. The amendment now says detached garages are part of the lead inspection, whereas previously they were not.

Common areas are part of the lead inspection and include, but not be limited to hallways, stairs, foyers, basements, laundry rooms, and the interior of attached or detached garages, if the areas are generally accessible to residential tenants, and the areas are not located within the interior of an individual dwelling unit. So again, a detached garage gets a lead inspection, if the tenant has access.

The law was enacted on July 22, 2022, and you had 2 years to complete the lead inspection or at tenant turnover. The amendment gives you three years from July 22, 2022, or until July 22, 2025.   

Now July 22, 2025, is the latest you can put off a lead inspection, but if a tenant vacates before that date, you must complete the lead inspection.

A municipality shall cause the lead inspection of rental dwelling units and in a building consisting of two or three dwelling units, common areas for lead-based paint hazards at tenant turnover or within three years of the effective date of P.L.2021, c.182 17 (C.52:27D-437.16 et al.), whichever is earlier.

Lead safe certificates are now good for 3 years. As of September 2024, we are awaiting new forms that state the certificates are good for 3 years.  

Once you get a lead-safe certificate, the landlord must provide evidence of a valid lead-safe certification to new tenants of the property at the time of tenant turnover unless by affixing a copy of the lead-safe certification to the tenant's or tenants' lease. Additional landlord obligations require the landlord to maintain a record of the lead-safe certification and include the name or names of the unit's tenant or tenants if the inspection was conducted during a period of tenancy.

Does the existing tenant get a copy of the lead safe certification?

The law does not say landlords must supply the certificate to existing tenants. New tenants must get a copy. The landlord has to give a copy to the municipality and the existing tenant could get a copy from said municipality.   It appears that when the law was written it was thought that there would be a lot of tenant turnover so there would frequently be “new” tenants.  

If a multi-unit building fails the lead inspection?

If a lead hazard is identified in a lead inspection of one of the dwelling units in a building consisting of two- or three-dwelling units, then the lead evaluation contractor or permanent local agency shall inspect the remainder of the building's dwelling units for lead hazards, with the exception of dwelling units that have been certified to be lead-safe.

Why as a landlord you do not want to fail.

An amendment to the law requires that the municipality deliver to the Department of Community Affairs a list identifying each dwelling unit inspected that was determined to contain a lead-based paint hazard. The DCA in turn must submit an annual report to the Legislature indicating the number of inspected dwelling units identified to have lead-based paint hazards. The report shall list the number of inspected dwellings and dwelling units identified to have lead-based paint hazards within each county.  This is a list landlords do not want to be on.

If you have questions regarding New Jersey's Lead Safe law. If you want to know what it takes to pass the lead safe inspection call the experts, Curren Environmental. 

888-301-1050

This is a common request we get from tenants. We have worked for tenants, landlords, and Homeowner Associations (HOAs).  In all cases, the following advice is the best course to address suspect or known mold issues.

First, if you suspect a mold issue in a property you do not own, it is best to contact the owner/landlord, as it is their responsibility to evaluate complaints. Since mold is water-related, unaddressed mold issues that are ignored will continue to cause damage to the property. Stopping the water source that drives mold growth is something any property owner would want to address.

If you rent a property with an HOA, contacting the HOA is prudent. Uniform buildings such as developments with an HOA will have buildings of similar age and construction. Since everything ages and has a life expectancy, it is possible that if your unit has a mold issue, the other units have the same issue.   If you have a water leak from the roof, rest assured other roofs in the complex have the same leak. 

Now there are absentee landlords, that may ignore your complaints.   In these cases, you go to step 2.

Your second approach would be contacting the local board of health and/or the municipality as landlords have to keep properties habitable. It is possible these agencies can evaluate your concern and have the landlord address it.

Your final option is to hire a professional to perform a Mold Inspection with testing.   I saved this option for last because you are spending money on professional evaluation. Budget $300 to $500 to $900 to have your mold problem professionally evaluated with testing.   Why such a wide range of costs?   Because mold problems are unique contingent on the mold issue and concern will dictate what is technique used for evaluation and how much testing should be performed.   There are some considerations before taking this step, will confirmation of mold by a professional be enough to get the owner to address your concern?   Do not spend money if you do not think you will get the result you desire. It is always safe to let the owner know you are hiring a professional as that may cause to owner to address your concern.

Lastly, be prepared that you may not have a mold problem.   Curren has completed thousands of mold inspections, and a good portion of mold inspections entail people thinking there is a mold situation affecting their health and this includes renters, owners, and workers in commercial buildings, and there is no mold issue.   If you are having health problems and mold is not a problem, you have other health issues that require professional medical evaluation.

What should you not do if you think you have a mold problem?

One, do not do any testing yourself, you are not qualified and will not understand what the test results mean.  It is a waste of money.

Two, do not declare you have black mold, as it is a fictitious mold, it does not exist, and no mold is named black mold.

Lastly do not claim to be a medical or mold expert, you are someone who may have a mold problem that you want evaluated and if present addressed.  It is our experience the vast majority of landlords want tenant issues addressed, so be calm and understanding.

Oil tank sweeps are not required by law but are 100% prudent when buying a home built before 2000.  Oil tanks are a Recognized Environmental Condition (REC) and the liability or responsibility of cleaning up a tank leak occurs to the property owner.    An oil tank sweep is the best way to locate buried oil tanks.  Leaking oil tanks (Rust Never Sleeps) and improperly abandoned underground oil tanks are a financial liability and hazard.

Consider that a small oil tank leak can cost $10,000 and some soil remediations can exceed $100,000, oil tanks are a huge liability.

The soil remediation to the left cost $45,000, which included engineering and structural support of the building, restoration of concrete and stairs, and HVAC relocation. 

The oil tank was found buried and hidden under the stairs before purchase.  The buyer dodged a bullet on this one

An oil tank sweep is meant to protect a buyer from purchasing a property with an undisclosed oil tank that can leak and cost tens of thousands of dollars to remediate.   Now the hard part is getting a quality oil tank sweep.

The term oil tank sweep is like saying "I'll have a steak", there is a broad range of types & quality.     While price does not always denote quality, "You get what you pay for" rings true regarding oil tank sweep.

Oil tanks were installed in no standard fashion, size, or location on a property because they were installed by fuel oil dealers, plumbers, builders, and excavation contractors.    Over 30 years of removing oil tanks has allowed Curren Environmental to see this firsthand.   When you do an oil tank sweep you want the company to have years of experience removing oil tanks, and be currently licensed to remove oil tanks, because when you find an oil tank, people want a cost to remove it.

There is no licensing for individuals who perform oil tank sweeps and like hobbyist's treasurer hunters, most people incorrectly rely on a $1,000 metal detector to sweep for an oil tank.     You will find this approach when you get a cost under $300 for an oil tank sweep.   Metal detectors will pick up all metal and cannot differentiate between an oil tank and geology or surface metal like a fence of buried pipes.   

The below snip is from a metal detector scan,  this is the whole report, one page.  I have no idea how the house is heated, oil or gas, or if any evidence of an old buried tank was found inside the house because they do not reference if they went inside the house.

The photo to the left is the house where this oil tank sweep was completed.  The photo shows their metal detector on top of where they believe a tank is located, in the rear of the house.

This photo shows the view of the front of the house.  In the photo, two pipes are protruding from the side of the house.  These are pipes for a basement oil tank, although the one-page report doesn't state that the home is on oil heat but does state "No vent pipes, fill pipes or fuel distribution lines were found during the inspection."  A qualified company would note the basement oil tank which based on the age of the home increases the probability of a 2nd tank, which could be the metal object they found.  But follow me here the oil tank is in the rear of the house, and the existing tank is in front of the house.  That is weird because the oil tank wants to be near the heater and the more likely location for a buried oil tank would be near the basement oil tank but obviously on the outside of the house.  Turns out there was no buried tank just metallic soil.

The takeaway here is Ground Penetrating Radar (GPR) was not used to scan for an oil tank.  GPR is a commercial application, meaning it is used for commercial and more complex sites.   GPR provides a visual image of what is in the ground, cost is more in the $400, range but you get tens of thousands of dollars of sophisticated equipment that allows you to professionally scan a property.

Being licensed to remove oil tanks also helps.  It gives hands-on training to the technicians who scan for oil tanks.  Meaning after you find an undisclosed oil tank you can be involved with the removal of the oil tank so you verify what you found. 

New Jersey Lead Safe Law will be 2 years old in July of 2024.   The law is attempting to eliminate lead paint hazards inside rental properties in New Jersey.  Landlords are confused regarding what constitutes a Lead Hazard?  

the general definition of a Leda Hazard is as follows:  Lead-Based Paint Hazards: Any condition that causes exposure to lead from dust-lead hazards, soil-lead hazards, or lead-based paint that is deteriorated or present in chewable surfaces, friction surfaces, or impact surfaces, and that would result in adverse human health effects.

New Jersey's lead safe law is interior inspection only so, a lead hazard outside is not covered by the inspection, although technically if you have deteriorated exterior lead paint, that is a hazard, but I digress.    The lead hazard under the law is interior hazards.         

Your lead inspector who Likely is not an environmental consultant, saw damaged paint and flagged a lead hazard.    The photo to the left is deteriorated paint.

Deteriorated Paint means any interior or exterior paint that is peeling, chipping, chalking or cracking or any paint located on an interior or exterior surface or fixture that is damaged or deteriorated.

Older properties have a near 100% chance of having some layer of lead paint, but realistically speaking that lead is covered by multiple coats of non-lead paint, since lead paint was banned in 1978.  

Lead-based paint is usually not a hazard if it is in good condition, and the paint is not on an impact or friction surface, such as a window. Deteriorating lead-based paint (peeling, chipping, chalking, cracking, or damaged paint) is a hazard and needs attention. Lead dust can form when lead-based paint is scraped, sanded, or heated. Dust also forms when painted surfaces bump or rub together. Lead chips and dust can reside on surfaces and objects that people touch.

New Jersey Lead Law assumes that for a visual inspection, any deteriorated paint going to be automatically assumed to be leaded paint and is a hazard and must be addressed.

Interim controls are a set of measures designed to reduce temporarily human exposure or likely exposure to lead-based paint hazards, including specialized cleaning, repairs, maintenance, painting, temporary containment, ongoing monitoring of lead-based paint hazards or potential hazards.

Lead Questions?     Call the Experts

888-301-1050

If lead-based paint hazards are found during an inspection, the owner of the dwelling unit must remediate the lead-based paint hazard by using lead-based paint hazard control methods such as interim controls,  or abatement. Colloquially, remediation is often used synonymously with interim controls and does not include abatement; however, in the context of P.L.2021, c.182, encompasses both interim controls and abatement.

The general definition of a Lead Paint Hazard as per HUD is:

 Any condition that causes exposure to lead from dust-lead hazards, soil-lead hazards, or lead-based paint that is deteriorated or present in chewable surfaces, friction surfaces, or impact surfaces, and that would result in adverse human health effects.

The NJ Lead Safe Law P.L.2021, c.182, assumes all interior paint is lead paint, so deteriorated paint triggers a lead paint hazard.  The law allows an out for owners:

If deteriorated paint is found during the course of a visual assessment, the owner of a dwelling may elect to order a dust wipe inspection to confirm the presence of lead-based paint.  The wipe samples in this situation included window sill sampling as well as the floor below the deteriorated paint, both samples confirmed lead dust and exceeded applicable standards.

This law does not require or reference XRF to be included with a lead inspection, although use of an XRF could 100% confirm if the paint contains lead.    Owners can elect to have a limited XRF testing performed of the deteriorated paint, to show that the paint is indeed NOT LEAD-containing.   Since the lead law allows municipalities to have some flexibility in enforcing the lead law this approach would be contingent on the municipality accepting the argument get a lead-free cert based on XRF and be exempt so if an owner is willing to pay for XRF, it can be used.  The above photo shows a painted floor, which clearly is a new paint or coating and would not be expected to contain lead, testing of the paint can provide support that a lead hazard is not present. 

Environmental regulations are confusing, Curren Environmental has over 26 years helping clients navigate the regulatory landscape.  Call the lead experts:

856-858-9509

Mold is a byproduct of water or moisture.  Fixing the source is step one in remediating mold.  

Mold Remediation is a multi-step process that includes the removal of the mold from impacted surfaces (Hepa Vac), the application of a post-cleaning fungicide, and lastly application of a fungistatic coating on organic surfaces.  

The fungistatic coating is typically white or clear and applied to organic wood surfaces to allow the treated surface to resist mold growth.  The coating can also stop the wood from absorbing moisture, which is what allows mold to start to grow.

This is all performed in a manner to try and contain the mold spores, so they are not spread to other rooms in the building.  You must also be diligent in looking for additional sources of water/moisture that fueled the mold growth.   Commonly, there are more than one cause of the mold growth.

Since only 11 states have mold regulations, the work performed in all other states is questionable as you have no specified quality of service.   Meaning what should be performed to remediate mold is not always completed.  If the white coating is not a mold-resistant coating i.e., paint, mold would be expected to grow as paint contains organic material that can foster mold growth. Mold-resistant coating (fungistatic) costs significantly more than paint, and many people will use paint to save money.  

Mold Remediation Failures

If the company performing mold remediation is unlicensed, which most are and they do not follow industry protocols, expect corners to be cut and your mold remediation to be a failure.   Mold remediation failures come from a lack of clear objectives and protocols that the company should utilize to remediate the mold.

The photo below shows areas that were missed when applying a mold-resistant coating which allowed mold to grow.

 While a remediated space does not necessarily have to appear like a freshly painted room, the area should visually indicate that treated surfaces are coated or covered. As the name implies “fungistatic coating” must coat all organic surfaces to be effective. The better coatings come with a 10-year warranty to prevent mold growth.

Expert Mold Advice

888-301-1050

Oil tanks have a finite life span, they rust and they leak.  Did you know the propane tank for your BBQ grill only has a 15-year lifespan?   If you own your BBQ grill propane tank and take it to a home center to get refilled they will not refill tanks older than 15 years.

Not shocking, things get old, what is shocking, and mostly to your bank account, is the cost of cleaning up an oil tank leak.   Ever paint and spill paint? You have to clean the paint before it dries or it is too hard to clean up, just as with a stain on your clothes.  Think of that with an oil tank leak. When an oil tank leaks it tends to leak until there is no more liquid left in the tank.  A hole in the bottom of the tank can keep leaking, while slow, it can keep leaking forever.  If there is a hole in the top of the oil tank, either cut out to fill the oil tank or a hole from rust, this will allow the rain or water to fill the hole and the liquid from the oil tank to spill over the top of the oil tank and run down the sides.

Visualize this, go to your refrigerator pop a pin in a container of milk or orange juice, and walk away.  Come back and you got a big mess.  So when oil leaks you have to excavate soils that have oil impact, gravity pulls the oil down, many times deeper than the foundation of the dwelling requiring structural supports of the dwelling foundation to allow the excavation to be safely advanced DEEPER than the existing foundation.    If it sounds like I am speaking a foreign language, understand this to structurally support a foundation, you need engineering plans, permits, and typical helical piers to support the foundation.  Typical costs?  $11,000 to $20,000.00 on average.  That doesn't include soil excavation, disposal, testing, etc., that is just to dig safely.

The following is from a listing for a home for sale:

Please note, property may have an underground oil tank. No testing has been completed, the seller will not test or allow testing before settlement. Come see this 4 bedroom, 2 full bath home. The home offers a living room, eat-in kitchen, dining room, and family room. The home has a full basement. Located close to local amenities! Home will not be on the market long. Schedule your showing today! The property is being sold As-Is condition. Buyer is responsible for all certifications. The seller never occupied. Neither the seller or listing agent make any representation as to the accuracy of any information contained herein. Buyer must conduct their own due diligence.

Yes, you read correctly, the property has an oil tank and the buyer can't test it.  The buyer won't allow testing because the buyer doesn't want to know if the oil tank is leaking.  Leaking oil tanks cost money to fix and buyers will not proceed with the purchase when there is an unknown liability regarding cleanup of the oil tank leak.  Unfortunately, there is no standard pricing for oil tank leak cleanups.   It's not like a pizza. Looking back over the last 30 days from the date of this writing we have completed oil tank projects that required no remediation, $8,950.00 of remediation, $42,731.00 of remediation, one was $19,564.00 another one was around $13,000.00, a small AST leak was $5,672.00.  The cost to remediate and oil tank leak varies, but to even determine and diagnose the extent of contamination you have to spend several thousand dollars to define the area.   

Do you think digging up the oil that leaked below this garage was inexpensive?

 The reason there is no home in this photo is that it had to be demolished to remove the contaminated soil from the underground oil tank leaking. 

With unknown costs for cleanup, you can see why a seller doesn't want to deal with an oil tank.  You can also see how dangerous it is for a buyer to ignore evaluating a property for a tank Tank Sweep, testing a known tank Tank Testing.

A Phase I Environmental Site Assessment takes approximately 10-28 Days to complete. How long a Phase I environmental takes depends on the property.  In the year 2023, a property with little history can be completed and delivered in approximately 10 to 14 Days or 2 weeks. A property with lengthy environmental records could take up to 28 days or longer. 

Why do some Phase I Environmental take longer?  The more history a site has the more prior data can be available, this information could be in prior environmental reports that the current property owner may not have or may not share.  Prior reports trigger a deep dive into publicly available records such as reports sent to the state environmental agency.  Meaning let's say environmental work was completed and reports sent to the state, so the only prior reports are at the state, and you have to request copies from the state.  That takes time, often weeks to get.

Now someone reading this is going to say they got a Phase I completed much faster, maybe even in a little over a week.  How can some Phase I reports be completed quickly?

Simple sites with no government files to access can be completed in a little over a week as most government agencies are allowed 7 days to respond to public records requests.   In New Jersey, an OPRA request must comply as follows:

Under OPRA, the custodian must respond to the request "as soon as possible," but requesters must receive a response within seven business days after the custodian receives a complete request. That does not mean that a record in storage, or one that is difficult to find, will be available during that time.

Fast Phase I ESA are typically incomplete reports.

Curren reviews thousands of completed Phase I reports for financial clients every year and a common thread in the reports is they have been issued even though OPRA and file reviews have not been finalized.   Meaning data may or may not exist at government agencies, but a report has been issued with the caveat that if files become available an addendum will be issued to the report.  That means two reports could exist.  In practice, no consultant should release Phase I without getting all requested data sets back, but it happens all the time.

Buying a property and need a Phase I?   Be realistic with your time frames, instead of demanding a date as the environmental professional how long they expect the report to take.

Selling a property, expect Phase I will be completed.  Progressive sellers will complete Phase I to both address issues that could arise and to use Phase I to market the property.

Phase I Questions?

888-301-1050

If you lease a commercial space, be concerned that you need a baseline of environmental conditions of the property, to avoid future liability.  Although your operations at the site may be innocuous, if contamination is found at the site after you vacate or as you are planning to vacate, the blame can be placed on you.  Think about it what data do you have that would prove otherwise and by data I mean testing.

This client called our office regarding a commercial space they were looking at leasing:

I am a bit afraid of getting involved with leasing this space.  What is the implication for us as the users if a big environmental issue exists?  

If you have not defined an environmental issue BEFORE you lease a space, you can be pulled into being responsible for the contamination.    Think of yourself as being guilty and having to prove your innocence.  The major big box stores and corporate tenants will do their own environmental investigation of a site before they occupy and yes, this investigation will include soil and groundwater testing.    Deep pocket companies do not want to be pulled into a cleanup that were not associated with and to do that you must baseline the environmental conditions prior to occupancy.

A Phase I and II is designed to establish a baseline of what potential contamination is on a site so that you as the purchaser or lessee do not get hit for a cleanup for something that you did not contribute to.  What if the owner did environmental testing after your lease was done and you moved out and found a significant impact on soil and groundwater?  What evidence would you have to prove that you did not cause that contamination?  A Phase I would have identified potential areas of concern, AOC’s, where contamination may be present.  The Phase II would have confirmed it, both of which would provide you liability protection if it was performed.  The Phase II/Site Investigation (SI) work collects samples to confirm if contamination exists.     Some property owners may or may not agree to have the work done, but most owners will allow you to environmentally baseline a property.  

Read your lease, many have clauses pulling a tenant into being responsible for contamination found on the site, and these clauses do not specify when it occurred or from what.  I have had banks occupy properties as branches and be pulled into cleanup that had no real connected responsivity.

Expert Due Diligence Advice

888-301-1050