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Changes to NJ Contaminated Site Remediation: May 7, 2012 Deadline Draws Near

When the Site Remediation Reform Act (“Act”) was passed in 2009, the New Jersey Department of Environmental Protection’s (“NJDEP”) mandatory opt-in date of May 7, 2012 appeared to be very far away. However, with that date fast approaching, some site owners are scrambling to meet compliance with the Act. If you have not been bombarded with letters from the NJDEP or dire warnings from consultants, take note that by May 7, 2012 all contaminated sites that are being overseen by the NJDEP must hire a Licensed Site Remediation Professional (“LSRP”) who will then take over the oversight of that case (with few exceptions).

This change has both benefits and detriments. The major benefit is that you will no longer have to wait for the NJDEP to respond to reports and remedial strategy requests. In fact, the main purpose behind this legislation was to speed up remedial actions after seeing cleanups languish for years due to case backlogs. However, there are negative aspects to the Act. For example, administrative costs will rise as LSRPs will incur costs to file necessary reports with the NJDEP. There are also mandatory timeframes for remedial actions with substantial penalties for missing those deadlines, including losing the right to choose your remedial strategy.

Additionally, there is some concern regarding the role of LSRPs. Previously, responsible parties could rest somewhat assured that their consultants were working as their advocates, ensuring that cleanup strategies would comprise the most cost-effective solutions consistent with the applicable regulatory scheme. However, LSRPs are now licensed by the state, subject to review and audit by the licensing board, and required to report discharges and clients who do not comply with the remedial strategy selected by the LSRP. This could create a conflict for those LSRPs faced with a conflict between client expectations and the LSRP’s own obligations as a licensed professional.

Another aspect of the Act that will come into effect in the fall of 2012 is the Remedial Priority Scoring System. The NJDEP plans to publish – online – a ranking of all contaminated sites in the state using a computer model. These sites will be separated into five categories with Category 1 representing the least potential risk to public health, safety or the environment and Category 5 representing the highest potential risk. The NJDEP is allowing responsible parties an opportunity to appeal both the initial rank and category. The ranking system will be updated every six months for the first year and on a quarterly basis thereafter.

As environmental lawyers with decades of experience assisting clients navigating the hazardous site remediation process at both the state and federal levels, the attorneys at Lieberman & Blecher have been called upon by many clients to help manage the LSRP transition and respond to issues presented by the new affirmative cleanup obligations enshrined in the Act. To ensure compliance with the Act and that their rights are protected, property owners or other potentially responsible parties should contact environmental counsel. Our team can assist with questions about the LSRP program, concerns about the NJDEP’s scoring system and other contaminated site cleanup issues.

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