Once again, New Jersey is forging the way in how states address environmental issues within their borders. As the state that enacted a proto-superfund law which formed a template for the later federal CERCLA, New Jersey has now revamped its entire legislative and regulatory remediation framework and privatized much of its oversight of contaminated sites.
In providing an overview of the program history, the process began in 2009 with the Site Remediation Reform Act (SRRA, N.J.S.A. 58:10C), which made sweeping changes to the way in which sites are remediated in New Jersey. SRRA established the affirmative obligation for responsible parties to remediate contaminated sites in a timely manner.
In order to implement the statute, the New Jersey Department of Environmental Protection adopted the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS, N.J.A.C. 7:26C), and the Technical Requirements for Site Remediation (Technical Requirements, N.J.A.C.7:26E), as well as updates to several other Department rules that had been part of those interim rules. Under this new remediation paradigm, in most instances the remediating party does not need to wait for the Department's direction and pre-approval to commence and continue cleanups. This shift away from state oversight is intended to speed remediation activities overall.
Creation of New Professional License
SRRA also created a category of remediation professionals known as Licensed Site Remediation Professionals (LSRP). The licensing process by which an environmental consultant becomes a LSRP requires specific levels of education and experience and a demonstration of competence by passing an examination.
LSRPs are subject to a strict code of conduct established by statute and regulation and must ensure that remediations are protective of human health, safety and the environment. Interestingly, the Department does not establish or oversee licensing requirements for LSRPs. That obligation falls to a separate Site Remediation Professional Licensing Board composed of public and private representatives who are appointed. The Board is intended to provide active oversight and establish criteria and investigate claims, all in order to ensure the competency of the professionals it licenses.
LSRPs, now in place of the Department, oversee the remediation of contaminated sites, and their retention is mandatory in most instances. The LSRP directs the investigation and remediation activities, ensures that the activities comply with the regulations and applicable Department guidance, and, when the data supports a finding that the remediation has been complete, issue a Response Action Outcome (RAO) for the site or area of concern.
The Department intends that a RAO be relied upon and viewed the same as the No Further Action (NFA) letter previously issued by the Department, but the lack of a covenant not to sue (which had been explicitly included in NFAs) and the fact that it is issued by a private consultant has created uncertainty in both the regulated community and, perhaps more importantly, among the lending community.
|Kevin J. Davis
LSRPS are also obligated to the Department independently of, and sometimes, contrary to, the clients who retain them. Specifically, LSRP must disclose to the Department the existence of an "Immediate Environmental Concern" (IEC) when one is observed. According to Kevin J. Davis, PE, LSRP, an engineer with Pennoni Associates Inc. in Philadelphia, Pa.: "This has created a dilemma for many consultants who feel this obligation to report to the Department is, in some instances, counter intuitive to serving our clients."
An IEC is characterized as a condition which involves observation of an exposure to contaminants which may pose a risk to human health. The obligation to notify the Department of an IEC arises independently and, (it is the Department's position) regardless, of the LSRP's relation to the site where the IEC exists. Disclosure to the client is secondary to the obligation to disclose to the Department. As this disclosure obligation can arise when an IEC is discovered during due diligence activities, many attorneys will not allow a LSRP to perform due diligence for their clients.
Mandatory Obligations, Time Frames
One of SRRA's biggest changes affecting the regulated community is the elimination of voluntary remediations. Under the new law, either a party is responsible to perform a remediation or it isn't. Any party that is not responsible to perform a remediation, and who undertakes to perform one thereupon, becomes responsible for completing it in accordance with the regulations through the issuance of an RAO. There is no longer an option to stop remediation activities or limit activities based on the remediating party's criteria.
The mandatory nature of all remediations has also been underscored by the establishment of time frames within which all persons responsible for conducting remediation must complete defined remedial activities. Failure to comply with regulatory time frames may result in an enforcement action by the Department, putting the site under "direct oversight" and rendering the responsible party subject to financial penalties.
In addition to the mandatory time frames now included in the regulations, the Department has the authority to establish expedited site-specific time frames on site conditions when the Department determines such action is necessary to protect public health, safety and the environment or based on the compliance history of the remediating party.
Department's New Role
As indicated, there are a few exceptions to the rule that LSRPs are required for all remediations. In those instances, the Department will remain the overseeing authority. A LSRP need not be retained in connection with the removal and remediation of residential heating oil tanks, brownfields cases which are under the oversight of the Department's brownfields section, and cases in which the Department is explicitly required by a specific regulatory program to maintain direct oversight. Direct oversight can also be a punitive measure imposed by the Department on non-complying responsible parties even if a LSRP has been retained.
The Department's role in most remediation cases now involves monitoring mandatory timeframe compliance, overseeing non-compliant sites and inspecting and reviewing LSRP submittals to ensure that remediation work is completed in accordance with the regulations and current guidance.
Under the new LSRP program, every document that is submitted by an LSRP, including the Response Action Outcome (RAO), is inspected by the Department and a number of submissions are subject to a more detailed audit. The Department has the ability re-open a RAO but only within three years after its issuance and only in situations where the RAO is not protective of human health and the environment.
The three year time period can be extended however if previously undiscovered contamination is found on a site for which an RAO has been filed, if the Board opens an investigation of the LSRP who issued the RAO, or if that LSRP has a suspended license.
What Attorneys Are Arguing About
SRRA and the ARRCS regulations have provided a number of issues that reasonable people can disagree about, and are. According to one New Jersey attorney, "The perceived differences between a RAO and the NFA will be matters of dispute, especially in older transactions where the documents did not contemplate the existence of RAOs when the documents were signed."
The existence of IECs, the allocation of responsibility where multiple responsible parties exist, and the decision on when to involve a LSRP are other areas where there is significant discussion. Since the mandatory retention of LSRPs for all remediation cases only became effective on May 7, 2012, the program is in its infancy and continues to evolve through the issuance of new regulations and guidance documents.
This is only a brief overview of the extensive overhaul affected by the state of New Jersey to its environmental remediation program and is not exhaustive in describing all the changes now affecting the regulated community. For more information, readers are encouraged to visit the Department's website at http://www.nj.gov/dep/srp/.
LSRP at the National RE3 Conference
The LSRP program will be highlighted at the national RE3 Conference, as hosted by the EnviroBlend® division of Premier Magnesia, LLC. The lineup of speakers will include Dave Sweeny, assistant NJDEP Commissioner for Remediation and Kevin Kratina, Assistant NJDEP Commissioner for Enforcement. The East Coast's newest environmental event will be held in Atlantic City, N.J. November 12-14. As described by Charis Gehret, General Manager of the EnviroBlend® and founder of RE3, "Our mission is to foster the exchange of information related to technologies and programs available for dealing with land and groundwater contaminated with heavy metals and organics. Both remediation industry professionals and the end-users will walk away with strategies and approaches that can be used in today's environment."
The event will include presentations geared for technical remediation professionals, as well as brownfield developers and property owners. For more information on the conference program, registration, and continuing education credits, visit www.re3conference.com.
Catherine Ward is an attorney with Stradley Ronon Stevens and Young, LLP in Cherry Hill, N.J., and a Board member of the state bar's Environmental Committee.