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The Reform Act Does More Than Create a Licensed Site Remediation Professionals Program Potential to revolutionize environmental cleanups

William J. Friedman

AN ALTERNATE OF THIS PUBLICATION CAN ALSO BE FOUND HERE

This year, there has been a loud and persistent buzz in the New Jersey environmental and business communities about how the process of performing cleanups will be dramatically changed as licensed site remediation professionals (LSRPs) come on the scene and remediations become privatized, with sharply reduced oversight and supervision by the Department of Environmental Protection. But there has been far less publicity for and public discussion about other significant provisions in the Site Remediation Reform Act (“SRRA”), the law which creates the LSRP program, and which also enacts other changes to the way sites are to be remediated in New Jersey, beyond the LSRP program. This article looks at how the significant non-LSRP provisions in the SRRA may substantially alter the remedies chosen in many cleanups, the speed at which cleanups are accomplished and the basic obligation to remediate.

Presumptive Remedies

At the same time that the SRRA invests LSRPs with significant discretion in determining how a remediation is conducted on a day-to-day basis, it also removes discretion in selecting remedies for residential properties, licensed child care centers, schools and other properties that are to be used by a sensitive population. For the first time, such properties will be subject to presumptive remedies for any remediation initiated after May 7, 2010 (a year after the SRRA became law).

The presumptive remedies are contained in a detailed table developed by the DEP. The table starts by looking at types of contamination present at a site (e.g., pesticide areas, historic fill, immobile chemicals, vapor intrusion chemicals, dioxin, PCBs), then looks at the size of the contaminated area and in many cases the specific use proposed for that area (e.g., lawn area, driveway, new building foundation) and comes up with a specific remedy (or set of options) for the particular end use. In general, schools and child care centers have the most restrictive presumptive remedies.

Several requirements apply across the board to all presumptive remedies at schools, child care centers and residences. First, free and/or residual product must be removed and/or treated in accordance with the DEP Technical Requirements. Second, with the exception of historic fill contamination, the impact to groundwater and surface water pathways must be addressed. Third, contaminated soils that exceed acute exposure levels must be removed and/or treated to a depth of 10 feet. Finally, for new construction, a vapor barrier must be installed, as well as a passive sub-slab depressurization system that can be converted, if necessary, to an active system. Presumptive remedies will apply to both new construction and adaptation of existing buildings to a designated use.

Although private LSRPs will be supervising future cleanups and using their discretion regarding day-to-day details of those cleanups, the presumptive remedy provisions will in effect take away substantial discretion of LSRPs and return it to DEP case managers when a property is to be developed into a designated end use. In particular, if an improving economy causes an increased demand for new housing, all housing to be developed on property that is in any way contaminated will be subject to the implementation of presumptive remedies specified by the DEP.

Mandatory Remediation Time Frames

The site remediation program has for many years been burdened with often excruciatingly long delays at various stages of the process, due to the department’s heavy backlog and the shortage of case managers. In addition, DEP review often has led to requirements for unanticipated supplemental sampling that substantially elongates the remedial process. Now, with the privatization of the remedial process, responsible parties will no longer be able to blame the DEP for delays. Furthermore, they will discover that the DEP is turning the tables by imposing mandatory remediation time frames starting in March 2010 for virtually every step in the remedial process, and unexcused violations of the time frames will result in takeover of site remediation supervision by DEP as well as possible penalties and sanctions to the LSRPs.

First, time frames are being imposed for the performance of each phase of a remediation, including the preliminary assessment, site investigation, remedial investigation, the submission of a remedial action work plan and the completion of the remediation. In extenuating circumstances, specific requests will have to be granted to extend the mandatory time frames.

Furthermore, specific, detailed timelines are being instituted that will govern each step from the time of discovery of environmental contamination or of an incident of immediate environmental concern. For instance, from the initial notification of a discharge to the DEP hotline, a party will have two weeks to prepare a sensitive population checklist, two months to identify receptors with pathways, four months to conduct a targeted pathway evaluation and six months to submit a report of the receptor evaluation. Extensions for mandatory remediation time frames are to be granted if delays are caused by the DEP in reviewing or granting a permit, if there are delays in providing state funding for remediation, or, on a case-by-case basis, because of delays in obtaining property access, despite good-faith efforts or because of other circumstances beyond the control of the remediating party.

A Permit Program for Engineering and Institutional Controls

DEP often allows contamination above standards to remain at the conclusion of a remediation if engineering or institutional controls, such as caps or fences, are put in place to minimize exposure to the remaining contaminants. DEP then requires a biennial inspection and certification to assure that the engineering or institutional control is still intact and functioning properly. But the problem has been that once remediations are concluded, properties typically change hands, and sometimes no party steps forward to undertake the certifications in the years after no further remediation is required.

Consequently, the SRRA establishes a permit program to assure that engineering and institutional controls are properly maintained and that periodic monitoring for compliance is conducted. The permit program is designed to assure that a single designated party becomes responsible for post-remediation compliance.

In addition, the permitee will be required to maintain insurance, financial assurance or another financial instrument to guarantee that future funding will be available to operate, maintain and inspect engineering controls. Exemptions from the funding-source requirement will be available to government entities, homeowners, owners/operators of child care centers, parties conducting remediations at schools and small businesses.

The Mandate To Remediate

In various presentations, DEP officials have attached some importance to a new provision which states that an owner or operator of an industrial establishment subject to the Industrial Site Recovery Act (“ISRA”), the discharger of a hazardous substance, a person in any way responsible for a hazardous substance or the owner or operator of a regulated underground storage tank that has discharged a hazardous substance shall remediate the discharge. Clearly, there is now a mandate to remediate that is part of the laws of New Jersey. But the key questions are whether the new mandate really changes existing law, and whether the mandate will have any effect on the many thousands of contaminated sites in New Jersey that are not undergoing active remediation.

Certainly, ISRA already says that an owner and operator of an industrial establishment that is being shut down or where ownership is being transferred must remediate contamination at that site. Furthermore, the New Jersey Spill Act imposes remediation liability on not only dischargers of hazardous substances but also upon the broader category of persons in any way responsible for a discharged hazardous substance, which includes current property owners where past discharges occurred. However, with an overhang of approximately 20,000 known contaminated sites in New Jersey, most of which are not undergoing active remediation, it is clear that the law as it has been constituted and implemented in New Jersey has not forced cleanups at most contaminated sites. Instead, market forces have been the real factors in driving most cleanups, as prospective purchasers have refused to take title to properties unless and until existing contamination is addressed. But at many thousands of sites, known contamination often remains unaddressed for many years.

But now, the SRRA has set forth its mandate to remediate, at the same time that the act has imposed fairly strict mandatory remediation time frames. Does this mean that DEP will now seek to actively require fast-track remediations at sites that were previously benignly neglected? Or is the new mandate to remediate simply a new tool that DEP will utilize only against really bad actors, who have refused to undertake remedial action even in the face of significant environmental threats? The answer promises to be one of the interesting developments that will show whether the SRRA truly revolutionizes environmental cleanups in New Jersey, and whether it will reduce the huge number of known contaminated sites existing in virtually every corner of the state.