After ten (10) years, The New Jersey Department of Environmental Protection (NJDEP) has updated the Site Remediation Reform Act (SRRA). The latest version of SRRA (commonly referred to as “SRRA 2.0”) was signed into law by Governor Murphy on August 23, 2019, after input from many stakeholders in the environmental community. Several notable changes were addressed including (but not limited to) the role of the Licensed Site Remediation Professional (LSRP) & Due Diligence, and Direct Oversight by the NJDEP. A brief summary of two (2) updates included in SRRA 2.0 are provided below:
LSRPs & Due Diligence:
Potential property purchasers commonly do not want to involve LSRPs in their Due Diligence (e.g. Phase I Environmental Site Assessments, Preliminary Assessments, etc.) due to legal “reporting” obligations of the LSRP when contamination is observed and/or identified at a site. With SRRA 2.0, potential purchasers do not always have a reporting obligation, including their LSRP. One exception is that LSRPs are still required to notify the NJDEP of an Immediate Environmental Concern (IECs) (e.g. contaminated (potable) water, Vapor Intrusion (VI), etc.), and notify the Person Responsible for Conducting Remediation (PRCR) in writing.
An LSRP must be retained when any person initiates a remediation. For consistency, the term “retained” has replaced the word “hired” throughout SRRA 2.0. However, does a prospective purchaser of a property need to retain an LSRP for due diligence purposes? Not necessarily.
Per SRRA 2.0, an LSRP is not required when collecting media samples (e.g. soil, water, air, etc.) or the investigation is not otherwise required by rule or law (e.g. due diligence, bank refinancing, etc.), conducted to obtain a Response Action Outcome (RAO), or to investigate, clean up or respond to any known, suspected, or threatened discharge of contamination. However, should laboratory testing results (and/or field observations) confirm the presence of contamination, retention of an LSRP is required to proceed with “remediation” along with notification to the NJDEP by the “owner” or “seller.”
(* “Remediation” or “remediate” is defined as “… all necessary actions to investigate and clean up or respond to any known, suspected, or threatened discharge of contaminants, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action, provided, however, that "remediation" or "remediate" shall not include the payment of compensation for damage to, or loss of, natural resources.” [N.J.S.A. 58:10C-2] )
Direct Oversight
The original SRRA (2009), established regulatory and mandatory remediation timeframes for contaminated sites undergoing remediation, and are still applicable today. Mandatory timeframes are two (2) years after the regulatory timeframes, and if missed, carry large penalties to the PRCR and place the site into NJDEP Direct Oversight. Once in Direct Oversight, a case manager is assigned by the NJDEP to oversee the remediation going forward. With SRRA 2.0, there are now exemptions when 1) deadlines are missed due to access/ownership issues and the PRCR made necessary attempts to gain access, and 2) Additional review time(s) by the NJDEP was required for sites under federal oversight resulting in missed timeframes.
Additionally, modifications to Direct Oversight are possible if 1) there is a public emergency resulting from a natural disaster, 2) if the NJDEP makes a determination that the modification is in the public interest (and protective of public health, and safety of the environment), and 3) if the NJDEP enters into an Administrative Consent Order (ACO) with a prospective purchaser, provided they meet certain requirements. Failure to comply may prompt the NJDEP to reinstate any or all of the Direct Oversight requirement.
The full act (SRRA 2.0) is provided at: https://www.njleg.state.nj.us/2018/Bills/A9999/5293_R2.PDF
For additional information on SRRA 2.0 and how the changes may affect your site remediation and/or property transaction, please contact tfrancis@cardinalLSRP.com or www.cardinalLSRP.com.
At Cardinal Environmental, we have the experience to get you through your remedial situation and provide realistic costs up-front, regardless of the size, or scope. Additionally, with over two decades in the industry, we have established relationships in the environmental community to get your project on a cost-effective remedial course that meets your long-term goals. Similarly, because the content of this post should not be construed as legal advice or legal opinion, Cardinal recommends consulting an environmental attorney for any specific legal question(s) you may have.