States Privatizing Environmental Remediation

Based on a recent report, New Jersey appears to have become the poster child for a problem facing may state environmental regulatory agencies around the county, a backlog of contaminated sites that these agencies do not have the resources (personnel or financial) to address. For example, New Jersey reportedly has a backlog of more than 19,000 contaminated sites. In response to this problem, several states have recently taken steps to privatize portions of their state remediation programs in an effort to accelerate the site remediation process and reduce their backlogs. Connecticut, Massachusetts, and now New Jersey have all reportedly implemented such privatization programs. Although, the changes to these State remediation programs are reportedly similar, I’ll focus on a few aspects of the New Jersey privatization program that are of general interest. 

The Site Remediation Reform Act (“SRRA,” N.J.S.A. 58:10C-1 et seq) was signed into law on May 7, 2009. In certain cases, primary environmental investigation and cleanup oversight under SRRA will no longer be performed by the New Jersey Department of Environmental Protection (NJDEP), but will now be performed by a new class of environmental professional that has been created under SRRA: “Licensed Site Remediation Professionals (LSRPs). LSRPs will be licensed as such by a 13-member licensing board and will be subject to civil and criminal penalties for violations of SRRA. 

Under SRRA, LSRPs will supervise site remediation activities largely independent of the NJDEP and the LSRPs will certify that the site meets New Jersey’s Technical Requirements for Site Remediation. Notably, the LSRP’s obligations under SRRA will change. Although, the LSRPs will still be hired by the entity responsible for remediation, in the future the LSRP will be responsible for protecting human health and the environment, which must take precedence over client preferences, discretionary sampling decisions, efficient billing, etc. 

It should be noted that New Jersey will no longer issue “No Further Action” (NFA) letters, except for those projects completed before the full phase-in of SRRA. Instead, the LSRP will file a Response Action Outcome (RAO) with the NJDEP. The RAOs are intended to be at least as reliable as NFA letters, and are subject to review and possible revocation for the first three years after issuance, as well as providing for re-openers. 

Under SRRA, the NJDEP will inspect submissions from LSRPs, but only generally at an undefined and likely much lower level of review. However, the NJDEP will be required to perform a higher level of review at those sites that may pose a significant threat to human health and the environment, may affect sensitive populations (i.e., daycare centers), or may involve environmental justice concerns. In addition, NJDEP may also have direct oversight of sites meeting the following criteria: 

·        Chromate contamination.

·        Multiple impacted sensitive natural resources.

·        PCBs, mercury, arsenic, or dioxin impacted surface water bodies.

·        Highest ranking priority in the New Jersey Spill Act. 

Finally, implementation of SRRA raises a number of questions and concerns going forward regarding the remediation of contaminated sites in New Jersey: 

·        Since, the “highest priority” for LSRPs is to protect human health and the environment, will LSRPs become more conservative in their approach and therefore, will remedial actions become more expensive to complete. Anecdotal evidence suggest that this has been the case in Ohio since implementation of their Voluntary Assistance Program (VAP). 

·        LSRPs will have obligations to disclose information and certain data directly to NJDEP about site conditions (even after the LSRP has been discharged). Therefore, how will this requirement affect the traditional relationship between an environmental consultant and their client? 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here.