New HOTS Remediation Rules: What You Need to Know

11 Jan New HOTS Remediation Rules: What You Need to Know

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On August 06, 2018 the New Jersey Department of Environmental Protection (NJDEP) amended regulations that affect administrative and technical requirements to remediate discharges from unregulated heating oil tank systems. Changes are contained in the new Heating Oil Tank System Remediation Rules (HOTS). Here’s what you need to know:

Unregulated vs. Regulated

Residential heating oil tanks that contain either No. 2, 4, or 6 heating oil or kerosene (regardless of size) and are used for non-commercial purposes are unregulated. Non-residential sites that have heating oil tanks with those same contents and an aggregate volume of 2,000 gallons or less are also unregulated, provided the contents are used for on-site consumption only.

In contrast, if a non-residential site has two 1,100-gallon tanks that contain any combination of No. 2, 4, or 6 heating oil or kerosene, because the aggregate volume exceeds 2,000 gallons, those tanks are regulated (even if they are used for on-site consumption only) and therefore must be remediated under a different set of rules. Likewise, if the contents of the tanks are used for resale, even if the aggregate volume of tanks onsite are 2,000 gallons or less, the tanks are considered regulated. An example of a regulated non-residential-facility might include a facility owning two tanks each containing 500-gallons of kerosene, but only one of those tanks are used for resale; such a condition constitutes a regulated facility.

New Rules

The new rules allow environmental clean-ups to occur in a less costly and more timely manner. The two most significant changes regard the ability to leave residual soil contamination in the ground and reduce the number of analytical samples that are required in soil and groundwater.

Owners of non-regulated tank systems can now leave behind elevated levels of contamination in three of the following instances:

• Residual contamination can remain on the property if the owner records a deed notice and obtains a soil remedial action permit.
• If soil removal is impeded because impacts are located beneath a residential building, a paved area, or beneath a sidewalk, as above, closure can be accomplished via a deed notice.
• If the total volume of residual contamination is 15 cubic yards or less and remains beneath a residential building, a deed notice is not required, but a notice will be included on the NJDEP No Further Action determination letter. This means that the volume of soil, for example beneath a deck, can remain behind if it is 7.4 feet per side (as a perfect cubic volume).

Another change reduces the number of samples required for some closures. Sometimes soil samples demonstrate that the horizontal and vertical limits of the impacts are fully defined.  In such circumstances, soil can be excavated to those delineation points and no additional post-excavation soil samples are required.

There are also expanded rules that could eliminate the need to conduct a groundwater investigation under certain circumstances.

Who is affected?

• Residential heating oil tank owners
• Non-residential heating oil tank system owners whose aggregate volume of tank storage for No. 2, 4, or 6 heating oil or kerosene is 2,000 gallons or less, the content of which is used for on-site consumption only

Why should I care?

Anyone who operates an active heating oil tank system is at risk for having to remediate a discharge. Remediation is costly and, in some situations, exorbitant. Stigma is often attached to these tanks, affecting property values and sales. These new rules allow tank issues to be addressed faster and, preferably, prior to closing. Therefore, you should be certain that you and your consultant are fully versed on these changes because the expanded latitude could save you significant amounts of time and money.

What constitutes a discharge?

A discharge in this context is defined simply as an intentional or unintentional action that results in the release of No. 2, 4, or 6 heating oil or kerosene that may result in damage to the land, waters, or natural resources of New Jersey.

Typically, 3 out of 4 tanks do not leak. Leaks or spills normally occur in the following situations:

• Filling the tank;
• Leaky pipe joints (a.k.a. unions); or
• Tanks become perforated.

How and When Do HOTS Rules Apply?

• When there is a discharge from the tank system to the surface of less than 100 gallons and it doesn’t reach the waters of the State, the owner may now request oversight from the State and obtain a No Further Action Letter. Previously, these cases would be handled by local authorities who would not issue a closure document.
• Applying HOTS rules can result in a Heating Oil Tank System No Further Action letter that serves as a legal document signifying that the discharge has been remediated pursuant to the HOTS rules. This mechanism relieves the responsible party from penalties related to the discharge, which could eliminate fines.
• HOTS rules may only apply with oversight from a subsurface evaluator or LSRP
• Addressing the issue now prevents the impacts from expanding, thereby containing costs.

Remember:  tank issues are not like wine; they don’t improve with time.

What should I expect from my environmental consultant?

Your environmental consultant should outline a strategy designed to get you to closure as quickly and inexpensively as possible. Your situation needs to be examined and evaluated. There is almost always more than one way to remediate a given situation. ESA can help you understand your options, costs, timing, and risks. As a general rule, when you have time, your consultant generally has more options available. However, when time is limited (for example, pending a closing), then your options also become limited.