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Site Remediation Reform Act to Transform Cleanup Process in New Jersey

January 1, 0001

 

On May 7, 2009, Governor Corzine signed the Site Remediation Reform Act (Assembly Bill No. 2962) (the "Act"), which is intended to fundamentally transform and greatly expedite the remediation of contaminated sites in New Jersey. The law substantially eliminates the NJDEP oversight function and shifts the burden of certifying compliance with cleanup requirements to Licensed Site Remediation Professionals ("LSRP"). In most cases, NJDEP No Further Action letters will be replaced by a Response Action Outcome ("RAO") issued by the LSRP, with the RAO providing equivalent liability protection. LSRPs eventually will be licensed by a new licensing board, with temporary licenses to be issued for the first 18 months by NJDEP until the Board rules are adopted. Remediations commenced prior to or within 180 days of the effective date of the Act generally are not required to be conducted by an LSRP.

LSRPs. The Act sets forth education, training and experience requirements for LSRPs, including 10 years of full-time professional experience (at least 5 years of which must have occurred in New Jersey). LSRPs will be required to certify all site remediation submissions to NJDEP and certify that the remediation complies with all laws and regulations, and protects public health, safety and the environment. LSRPs will be subject to a code of conduct enforced by the new Licensing Board. The Board will have the authority to revoke and suspend licenses, assess civil penalties up to $20,000 per violation and petition the Attorney General to bring a criminal enforcement action. The Board is required to annually audit the submissions and conduct of 10% of LSRPs.

NJDEP Oversight. For most cases, NJDEP will no longer provide direct oversight of site cleanups. Instead, submittals to NJDEP will be subject to "inspection" by NJDEP, and in certain circumstances, "additional review." Although not defined, "inspection" will certainly entail a much lower level of scrutiny than the reviews currently conducted by NJDEP. "Additional review" suggests a higher level of scrutiny than inspection, and the law requires that 10% of all submissions be subject to additional review. NJDEP will exercise direct oversight in cases where a responsible party fails to meet newly established deadlines for the remediation process, and in cases with a history of noncompliance or delay. NJDEP also has the discretion to exercise oversight authority for sites: (1) contaminated with chromate chemical production waste, (2) where NJDEP determines that more than one environmentally sensitive resource has been injured by the contamination, (3) that have contributed to sediments contaminated with PCBs, mercury, arsenic or dioxin in a surface water body, and (4) which are given the highest priority ranking under the New Jersey Spill Act.

Remediation Timeframes. The Act requires NJDEP to establish mandatory remediation timeframes for control of ongoing sources of contamination, for each step of the remediation (e.g., preliminary assessment, site investigation, remedial action), for interim remedial measures, and for other activities deemed necessary by the Department to effectuate the remediation. In setting the timeframes, NJDEP is to take into account, among other things, the complexity of the site and the ongoing operations at the site. It may grant extensions to the deadlines due to delays in obtaining site access, other circumstances beyond the control of the party conducting the remediation, and "other site specific circumstances that may warrant an extension as determined by the department." We anticipate that responsible parties will frequently look to this last exception for relief from the deadlines. Parties that are currently conducting cleanups can opt to into an LSRP pilot program that will be set up within 90 days of enactment.

Given that many remediation projects are being delayed, sometimes for years, as a result of the slow pace of NJDEP review, the LSRP program should accelerate cleanups. In addition, although opponents of the law have expressed concern that privately certified cleanups might not be as protective of public health and the environment, the potential penalties facing LSRPs for conducting and certifying a cleanup non-compliant cleanup may engender an increased amount of caution on the part of LSRPs, which may lead to costlier cleanups. This may give rise to new tensions between responsible parties and LSRPs. It remains to be seen how aggressively NJDEP will use the above-noted sediment exception to disqualify projects from the LSRP, a situation which may arise at a large number of sites in the greater Newark Bay Complex. Finally, the pace of site remediation will still be limited by the extensive NJ “Tech Regs” (NJAC 7:26E), which in many instances require intermediate consultation by or approval of NJDEP