EVR Deadline: New ACO end-date, Additional Observations, and Information
A few weeks ago, we sent along an informational update on the looming Enhanced Vapor Recovery (EVR) upgrade deadline on December 23, 2024.
If you haven’t read that edition of the Road Warrior, CLICK HERE to review.
Since that notice was circulated, we have seen an uptick in members reaching out to us. Some have pointed questions or are seeking additional help, while others have given us an earful in “opposition” to what we outlined.
One especially criticized point was our suggestion that members inquire about a preemptive Administrative Consent Order (ACO) with the NJ Department of Environmental Protection (DEP) if a location could not have the upgrades completed by December 23rd.
Rather, these members contend they would schedule their upgrade for January, February, or March — but never notify DEP and potentially run the risk of a future fine. In doing so, they are essentially gambling that DEP will not visit their location before the work is complete.
Every owner must weigh the pros and cons of any potential solution, then make the decision that works best for them, their employees, and business.
However, we thought to offer some additional notes (below) before members settle on a course of action.
1 – Will I Receive a Delivery Ban?
Several members have stated that they will schedule their updates after the deadline but not seek/enter-into an ACO beforehand since there was no “fear” of a delivery ban. The thinking here is, “Why bother getting the ACO ahead of time if they can’t stop me from getting new loads delivered”?
We reached out to a few resources, and this appears to be true. If the EVR upgrades are not done on time, it seems unlikely that DEP can issue an outright delivery ban at your location.
However, even if you can continue to get new product deliveries, you are still opening yourself up to fines on a “per day, per device” basis. Depending on your station and tank configuration, that might mean thousands of dollars — per day — in fines.
To give you an example, under the most common scenario, if there were a one-month delay in having the upgrades done, and the station owner is caught, the average fine size would be approximately $21,000.
Why take that risk and potential financial burden when you can have a lighter, predictable fine to pay?
Why give DEP the opportunity to hand you an unspecified (and likely, very large) fine, when you can pre-negotiate a considerably smaller fee beforehand?
2 – Is DEP keeping track of sites that haven’t been upgraded on time?
We have heard some members comment that “If we blow past the deadline, they’re not coming to our shop on Christmas Even to hand out violations” – and that is entirely true. DEP investigators are not going to rush out over the Christmas holidays to hand out fines.
In gambling whether you will be visited after the New Year, some owners are clearly taking a “if I don’t get caught, I can’t be fined” approach. The overall thinking is that there is no way for DEP to know exactly who has done the upgrades on time and who has not – So receiving a Notice of Violation (NOV) and fines will amount to random bad luck.
This kind of speculation can be harmful and a bit illogical.
Sure, a DEP visit could be random. But that would overlook that DEP has a repository of records that can be analyzed to deduce who may have blown past the deadline.
Think it through to the end to see the possible risks. If a site is following the proper procedures and has already made the appropriate upgrades, then their contractor (or environmental compliance company) would have had to reach out to DEP to notify them of certain modifications under the 14-day notification rule. That means all owners/operators must tell DEP before starting certain activities (including installations, substantial modifications, closure, etc.); and it will trigger the 14-day notice rule for DEP to follow-up on and confirm that work is being done correctly.
By January, they will already know who has gone through that process, just through filed paperwork. Which means it is unlikely that random dumb luck will have an investigator pay you a visit after December 23rd. Rather, the information on who is in/out-of compliance is “easy” to extrapolate and in their possession.
Do you see the connection? If a location was installed prior to 2017, and must comply with the EVR mandate, the DEP knows where those facilities are. If you made the EVR updates over the last seven years, you had to trigger the 14-day notice rule, and they have those records. If they subtract those known upgraded facilities from those who they haven’t received the 14-day notice paperwork from, then they can winnow out potential non-compliant locations.
Of course, there are other data points, but in drilling down on the information they already have on hand, they get a solid idea about who is likely to be in violation.
Looking at it through this lens undermines the idea that getting caught will be just “random, dumb luck”. Rather, if DEP officials were truly seeking to hand out fines and violations for non-compliance, they could easily look at the accessible information they already have to make a punch-list of sites to visit — then start handing out violations in January.
For that reason alone, if you aren’t going to make the deadline on time, it may be wise to get an ACO ahead of time, rather than tempt fate.
If you contact DEP and agree to an ACO, you will likely be assessed a static/one-time fine for your violation. That means you get to avoid a fine that accrues per day, per device if you are caught. And the final fine would be manageable and predictable.
We cannot guess what a particular ACO might look like, as every situation is different. However, the general example we were given was, if a station owner had a contract to complete the work in January, DEP would impose roughly $600 for an entire month; rather than $600 per device, per day.
In addition to addressing the member concerns and criticisms, above, we’d like to offer up the following considerations and notes:
1 – The effective ACO end date has moved up
Keeping all the above in mind, we learned this week that there is a new twist to this saga.
The EVR deadline is December 23, 2024, and many station owners are still “crunching the numbers” to determine their next steps. In doing so, they think they have until December 23rd to call DEP and let them know they want an ACO. However, logistically, the deadline is weeks sooner.
Early this week, we learned that there has been a flood of ACO requests from station owners, but that DEP will try and work with owners until December 1st. The reason behind this is that it will be difficult for DEP staffers to receive an ACO request, draft documents, have them reviewed, and everything signed n’ executed before the December 23rd deadline.
That means that if an owner wants to be up front and seek an ACO with a very-reduced penalty, they need to hear from you soon!
That aside, and to figure out if going the ACO route is the right decision for you, please consider that:
- If an owner needs an ACO, the penalty assessed will depend on the technical work being done. Meaning each location will be different, but will be assessed at a significantly lower rate than what it would otherwise be after the deadline.
- If a site is currently not in compliance with other outstanding DEP violations, DEP staffers will insist that those lingering issues be incorporated into a “global” ACO. That means that if you haven’t addressed or settled an existing NOVs, you should anticipate having those items incorporated into any final, executed agreement. Keep in mind, if those persisting items have implicated your LSRP’s advice, you should make sure they are looped in. What’s more, any possible arrangement may become more complicated if you are a multi-site operator with multiple NOVs. If you fall into that category, you should expect those other outstanding NOVs to be folded into any EVR ACO that is executed.
- If a station owner chooses not to seek an ACO before the deadline (which we now know is functionally December 1st), the DEP will play hardball and is unlikely to “settle” anything. Rather, they will press ahead with fully levied fines, with little inclination to compromise on a monetary reduction. This means that this is your final opportunity to settle ahead of time and get a “favorable fine” outcome. Some members reading this might believe this is unfair or mean-spirited. However, DEP’s position has been that not only have station owners had seven years to address this issue, but that they are offering you a means of settling now before the deadline arrives.
2 – Who to contact if you want an ACO?
If you know you will not make the December 23rd deadline and wish to speak with a DEP official about the possibility of an ACO, here is their contact information:
Kevin Marlowe
Responsible for the Northern Region (Bergen, Essex, Hudson, Hunterdon, Morris, Passaic, Sussex, Warren)
Email: Kevin.Marlowe@dep.nj.gov
Phone: (609) 439-9589
Kristy LeNoir
Responsible for the Southern Region (Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Middlesex, Mercer, Monmouth, Ocean, Salem, Somerset, Union)
Email: Kristina.LeNoir@dep.nj.gov
Phone: (609) 221-3306
Jenna DiNuzzo
Responsible for any station owner/operator that has multiple stations
Email: Jenna.DiNuzzo@dep.nj.gov
Phone: (609) 672-1309
It should be noted that entering into an ACO for not completing the mandated upgrades by December 23, 2024 is not the equivalent of an extension. If you go this route, you are still technically in violation. Still, you can avoid excessive fines and limit your liability if you are transparent with DEP before the deadline arrives.
3 – Contractor Information
We offered up the following details last week but are restating them in this week’s message.
If you haven’t done so already and need to get a “legitimate” contractor and estimate lined up, DEP has shared a list of a licensed contractors that can legally do the work.
The key thing here is the contractor must be licensed to do installation work.
You can access the list on a DEP website by CLICKING HERE – Scroll down to the “UNDERGROUND STORAGE TANKS” heading, then underneath you will find the appropriate links on the page.
In this section you will find the same contractor list presented two different ways. The link labeled “DEP Certified UST Firms” has contractors listed in alphabetical order. The other list is labeled “DEP Certified UST Firms by County” and lists the contractors in the county they are based out of. The latter should help you gauge how close a company’s base of operations are geographically to your location.
In selecting a contractor, you should know that you are free to hire a company based outside of New Jersey. That is, we’ve heard from some members who eliminated out-of-state contractors from their list of possibilities, simply because they are not Jersey-based. That alone should not be a deciding factor. If the contractor has a license to do work in New Jersey, you are free to hire them without reservation.
Please do not linger and wait until the last second.
If you are in this situation, please speak with your environmental consultant and legal counsel about whether an ACO is the right solution for you.
If your contractor or compliance company has any questions, PLEASE CLICK HERE to review the official DEP Compliance Advisory on the EVR mandate.
Contact Nick at Nick@njgca.org or call us at 732-256-9646 with any questions.o
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