The Remediation Wire - Legal News Regarding The Environment

PRIVATIZING REMEDIATION CASES IN NJ: IS NJDEP REALLY OUT OF THE PICTURE?

August 14, 2012 | Comments Off
Posted by Marc Policastro

With the introduction of the Site Remediation Reform Act (SRRA), New Jersey in effect “privatized” the site remediation process, transferring responsibility for issuing “approvals” from regulators to “Licensed Site Remediation Professionals” (LSRPs). Under previous regulations, NJDEP would ultimately issue final approvals, i.e., No Further Action Letters which would close out the remediation obligations. Owners and operators of real property were obligated to file with the State specific investigatory and remediation proposals which would be reviewed by the DEP case manager assigned to that case. In the event groundwater contamination was suspected, or known to exist, a second review was undertaken by the DEP geologist assigned to the case. Frequently, significant time delays would result in the event the proposed remediation strategy was rejected in whole or part by the State’s case manager or geologist. This problem was particularly troublesome in the context of redevelopment cases where, by necessity, remediation and construction very often must be simultaneously pursued.

That begs the question: Will privatization of the remediation process expedite the cleanup process and, has DEP really been relegated to the sidelines as a passive observer or referee? The LSRP’s playbook in determining whether a final approval is warranted consists, primarily, of the Administrative Requirements for Remediation of Contaminated Sites, the New Jersey Technical Regulations, as well as myriad “Guidance Documents”, which are issued by the DEP and are directed at site specific air, groundwater and soil issues. Specific use categories (residential development, schools and childcare facilities) have been assigned “presumptive remedies” to ensure that the remedy implemented at the particular site is “protective of human health and safety and of the environment,” which is the legal standard LSRPs must adhere to in issuing approvals.

As with any regulatory framework, the Guidance Documents and Technical Regulations offer significant room for interpretation and there are numerous instances where the viewpoint of consultants and regulators may differ. With a new private program designed to streamline the process and reduce DEP’s involvement, how then, under the new program will an LSRP know with any degree of certainty that the remediation strategy employed will survive a third party’s or DEP’s scrutiny? This issue is significant, especially in light of DEP’s right to “audit” final approvals for three years after issuance of a final remedy.

Currently, DEP is offering LSRPs and responsible parties the ability to engage in a “Technical Consultation” process which, to some degree, brings the State back into the fold without providing DEP with “direct oversight” over the case. The DEP requires that Technical Consultations occur with a face-to-face meeting, and the agenda must be submitted in advance of the meeting. DEP will not consider issues relating to extension requests, timeframes for compliance, or fees. The Department has taken the initiative to staff such meetings with the appropriate representative from DEP, depending on the nature of the inquiry. DEP will not provide official approval for any particular remedial action or investigation proposed, however, the State will provide detailed guidance. In turn, the responsible party is encouraged to submit to DEP a written findings and determinations document, outlining the strategies discussed and the DEP’s guidance. DEP is including written findings and determination documents in its data base, which is cross referenced by property. Prospective purchasers, investors or prospective tenants may access DEP’s data base in the course of due diligence to better assess the State’s likely treatment of remediation issues in the event of an audit. Similarly, due diligence may be enhanced to gauge whether the State will likely exercise “direct oversight” in the vent of substantial non-compliance by the current owner or operator.

Bottom line: NJDEP remains in the mix.

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